P L D 1993 SC 473
MUHAMMAD NAWAZ SHARIF
PRESIDENT OF PAKISTAN AND OTHERS
Per Shafiur Rahman, J.
(a) Constitution of Pakistan(1973), Article 64
In the case of Mr. A.K. Fazlalul Quader Chaudhury v. Syed Shah Nawaz and 2 others (PLD 1966 SC 105), it was held that not only is the resignation required to be addressed to the Speaker but that it should be intended to be passed on to the Speaker of the Assembly. (p. 603) O
Per Ajmal Mian, J.
(b) Constitution of Pakistan(1973), Article 64(1)
Even if I were to ignore the above pleading of the Federation and allow the learned Attorney-General to deviate from it, the fact remains that the submission of above 88 resignations to the President had no legal effect as they were not handed over to the Speaker in terms of Clause (1) of Article 64 of the Constitution, in view of the above two judgments of this Court. (p. 687) O
Per Muhammad Afzal Lone, J.
(c) Constitution of Pakistan(1973), Article 64
The learned Attorney-General was confronted with Article 64 and the Rule 25 under which resignation in writing under the hand of the Member concerned addressed and delivered to the Speaker, if genuine and tendered voluntarily, is sine qua non for its effectiveness, It was pointed out to him that these letter of resignations were addressed to the Speaker, but never passed on to him and thus, the Constitutional requirements were not fulfilled. (p. 741) I
Per Saleem Akhtar, J
(d) Constitution of Pakistan(1973), Articles 64, 63, 58(2)(b) & 91
From these provisions the procedure for submitting a resignation by a member of the National Assembly emerges as follows:-
(i) The resignation should be in writing under his hand and should be addressed to the Speaker.
(ii) The resignation may be delivered by the member personally or through any other means.
(iii) If the letter of resignation is delivered personally, then the Member should inform the Speaker that the resignation is voluntary and genuine.
(iv) If the resignation is delivered by any other means, then the Speaker ascertain whether it is voluntary or not.
(v) The Speaker after satisfaction that the resignation is genuine and voluntary, shall inform the National Assembly and then the seat shall be declared vacant.
(v) The date of resignation of a member shall be the same as sepecified in the letter of resignation or if no date has been given, then the date of receipt by the Speaker. (p. 817) K
To that extent there maybe some disciplinary justification for obtaining and holding such resignation, but in order to make it valid and effective besides complying with the procedure laid down, it should be voluntary, genuine and should be intended to vacate the seat Resignation is a voluntary act of a member or person submitted with the intention to relinquish, relieve or quit that particular post or position and to vacate the same. It cannot be a two-way traffic or an act to use if for any purpose liked by any third person. The resignations obtained by any person politically or officially in authority or not from the member and delivery to a third party other than the person authorised to receive them, with the intention to achieve political giants ad create a ground for dissolution of the Assembly can neither form basis for such action nor be justified by any principle of law, morality and ethics. (p. 818) L
The resignations should not only be addressed to the Speaker, but they should be intended to be delivered to the Speaker. (p. 819) M
It was held that the Constitution has ordained that the resignation by a member is effective only when it is “addressed” to the Speaker: it was not intended to be an idle formality. To relinquish the parliamentary seat by resignation is a grave and a solemn act”. The letter of resignation should e signed by the member voluntarily and submitted personally to the Speaker or transmitted through duly authorised person for delivery to the Speaker. (p. 819) N
The Constitution has thus cast onerous duty on the speaker to make inquiry into the genuineness and voluntary nature of the resignation and also that it has come through an authorised person, if not submitted personally. The Speaker can neither refuse to discharge this duty nor can any authority bypass him. The solemnity and sanctity attached to the resignation by a member of the National Assembly shall be eroded if It is made in contravention of the provisions of the Constitution and the rules and furthermore if they are intended not to vacate the seat, but for any other purpose, ulterior, oblivious or clandestine. Such letter of resignation which do not have any validity or sanction under law can hardly be accepted muchless by a person of high position like the President to assess the confidence the members have in the Assembly and also to assess a situation whether the member have in the Assembly and also to assess a situation whether the Government can be run in accordance with the Constitution. (p. 819) O
The exercise of pleasure by the President is conditional and not absolute. An embargo has been imposed on its exercise and the President is precluded form forming his opinion and satisfaction on the basis of anything but the votes given on the floor of the House. As out Constitution contains specific provisions for governing such a situation, and provides a procedure and manner for ascertaining the fact whether the Prime Minister has lost confidence of the House, no other mode of ascertainment can be adopted. It is a well-settled principle that if a statute provides anything to be “done in a particular manner, no deviation from the given course is permissible. Any ascertainment of such fact in an unconstitutional manner or extraneous consideration cannot be made basis for removing the Prime Minister. It is thus clear that most of the resignations collected and delivered to the President could not be made basis for reaching the conclusion or satisfying himself that the petitioner did not command confidence of the majority of the National Assembly and require the Prime Minister to obtain the vote of confidence from the Assembly. The determination of such fact is not left to the President or any authority except the National Assembly. Such resignations could hardly be made a ground for dissolving the National Assembly. (p. 821) P
It may however be pointed out that Speaker enjoys a unique position in the Constitutional structure of the country. He has to reside over the House and is required to maintain decorum and discipline. He should be impartial, just and disinterested and discharge his duties without fear or favour, ill-will or affection. His most important duty is to maintain discipline amongst the members of the Assembly in the House and also control their conduct and utterances even outside the House made in violation of the Constitution. In this regard reference can be made to Article 63 of the Constitution which provides disqualification for membership of the Majlis-e-Shoora . It enumerates several conditions when a person shall be disqualified from being elected or chosen and from being a member of the Parliament. It not only specifies the disqualifications attaching before the elections, but even the disqualifications which may occur or may be carried unnoticed after the election to the House. Once such disqualifications or misconduct as enumerated therein are noticed and a question arises whether he has become disqualified from being member, the Speaker shall refer the question to the Chief Election Commissioner and if he declares him to be disqualified, he shall cease to be a member and his seat shall become vacant. Therefore, heavy responsibility has been cast on the Speaker to be watchful and to maintain discipline with strict observance of the provisions of the Constitution. Pointed reference can be made to Article 63(1)(g) which though in existence has never found its importance by any authority or the Speaker concerned. Under sub-clause (2) of Article 63 the Speaker should not wait for the question to be raised, but once it is brought to his notice or he suo moto notice any breach of any provision of Article 63, it is his duty to refer the matter to the Chief Election Commissioner. The word ‘shall’ in Article 63(5) indicates that a mandatory duty has been cast on the Speaker to refer the question to the Election Commissioner. If any breach has been brought to his notice, it is not for him to decide it, but he is merely to refer it to the Chief Election Commissioner. Any unreasonable delay in sending such matter to the Chief Election Commissioner is bound to could the high status of the Speaker. (p. 822) Q
Per Saeeduzzaman Siddiqui, J
(e) Constitution of Pakistan (1973), Articles 54 & 58
The exclusive power enjoyed by the Constitution, and nothing beyond that. The exclusive power enjoyed by the Speaker to prorogue the session of Assembly summoned by him under Article 54(3) is not at all determinative of the power of the President to dissolve the Assembly under Article 58 of the Constitution. The power to dissolve the Assembly under Article 58 of the Constitution. The power to dissolve the National Assembly under Article 58(2)(b) is undoubtedly a distinct and separate Constitutional power which is neither subordinate to nor controlled by the provisions of Article 54 of the Constitution. There is nothing in the language of Article 54 or Article 58 or in any other provision of the Constitution to suggest or indicate that when a session of the National Assembly is summoned either by the President himself (Article 54(1) or by the Speaker (Article 54(3), the power to dissolve the National Assembly will not be exercised by the President under Article 58 of the Constitution or that the power of President to dissolve the National Assembly will remain suspended or dormant until the session of the National Assembly summoned under Article 54 is prorogued. The power to dissolve the Assembly under Article 58 of the Constitution is an independent and distinct power which can be exercised at any time after the Assembly is formally opened. The fact that Assembly is in session or that its session has been called or that it is not in session has no bearing on the exercise of the power of dissolution under Article 58 of the Constitution. (p. 864) O
(f) Constitution of Pakistan(1973), Article 64
Article 64 of the Constitution provides that a member of Parliament may by writing under his hand addressed to the Speaker or as the case may be, to the Chairman, resign his seat and thereupon his seat shall become vacant. Article 64 of the Constitution is to be read with Rule 25 of the Rules of Procedure and Conduct of Business in the National Assembly. (p. 866) Q
The resignation of a member of National Assembly, according to above provisions, must be addressed to the Speaker and written under the hand of the member concerned. The resignation may be handed over personally by the member concerned to the Speaker and at the time he may inform the Speaker that it is voluntary and genuine and if the Speaker has no information or knowledge to the contrary, his seat becomes vacant immediately. In case, the Speaker receives the letter of resignation by any other means he may either hold enquiry himself or through the National Assembly Secretariat or through any other agency regarding genuineness and voluntary nature of the resignation and as soon as the Speaker is satisfied that the resignation is genuine and voluntary, it becomes effective. According to sub-rule(4) of Rule 25, the date of resignation shall be the date mentioned in the resignation letter and if no date is specified therein, the date of resignation will be the date on which the resignation is received by the Speaker. As soon as the resignation becomes effective a notification is to be issued by the Secretariat of the Speaker in the Gazette and a copy thereof is to be sent to the Chief Election Commissioner for taking steps to fill up the vacancy. Therefore, for a resignation to be Constitutionally valid, the above procedure has to be followed In the present case, majority of the resignations produced before us do not bear any date These resignations, though addressed to the Speaker of National Assembly were received by the President who had no authority under the Constitution to receive them. These resignations received by the President in spite of passage of considerable time were not forwarded to the Speaker of National Assembly. (p. 867) R
I am inclined to hold that these resignations have no Constitutional validity or value and as such it was not possible on the basis of these documents to arrive at the conclusion that the National Assembly had lost its representative character. (p. 867) S
No doubt there appears to be a similarity in the words or phraseology used in the grounds in the two cases. In Khawaja Ahmed Tariq Rahim and in the present case but mere similarity in the words or phraseology can neither be determinative factor nor a test for identity of the substance of the grounds in the two cases. (p. 871) T