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P L D 1997 LAHORE 263

TANVEER A QURESHI
V/S
PRESIDENT OF PAKISTAN,
PRESIDENT HOUSE ISLAMABAD & 3 OTHERS



Per: Sh. Ijaz Nisar, C.J.

(a) Constitution of Pakistan (1973) Preamble, Arts. 1 & 2A–

To us it is clear that a Constitutional set-up which provides for the supremacy of the Parliament and Governance of the country by a Cabinet comprising of elected representatives of people which is responsible to the Parliament, is Parliamentary in nature. The division of power between the Head of the State, Chief Executive and other Constitutional functionaries is not of much importance. In the recent case of Al-Jehad Trust thorough Raeesul Mahajideen Habib-ul-Wahab-ul-Kharri case, Constitutional Petition No. 23 of 1996 (PLD 1997 SC 84), Saiduzzaman Siddiqui, J. observed that:-

“The nature of the Constitution, whether it is Parliamentary or Presidential in character is determined by the Scheme of a Constitution. In a Constitution which envisages a Parliamentary system of Government, the Parliament is considered supreme to all other organs of the State and the Cabinet consisting of Minister and Prime Minister is responsible for running and managing the affairs of the Government. The concept of responsible Government of collective responsibility of Cabinet to the Parliament is inherent in this system.

So long these features are present in the Constitutional scheme, the system retains the characteristics of a Parliamentary form, irrespective of the fact that some other powers under the Constitution are exercised by the Prime Minister. Mr.S.Sharifudding Pirzada, the learned amicus drew our attention to various Constitutions enforced in the countries of the world, which though envisaged Parliamentary system of Government but the distribution of powers between the Prime Minister as the Chief Executive and the President as head of the State are arranged in these Constitution differently.”[p. 274]A

As already observed by us, the form of Government does not depend upon the division of power between the functionaries under the Constitution. On the other hand, what is to be seen is that where the Parliament remains to be supreme and the country is to be supreme and the country is to be governed by the Cabinet comprising of the Prime Minister and the Ministers responsible to the Parliament, the system would remain to be Parliamentary in character. We may also state that the language of Article 90 of the Constitution after is 8th Amendment is the same which is used in Article 53 of the Constitution where it has never been doubted that the system of governance was Parliamentary in nature. It has been pointed out by Mr. Sharid-ud-Din Pirzada that similar language was used in the Government of India Act, 1935 as also in certain other Constitutions like those of Australia, Canada and Ireland.[p. 275]B

It is unnecessary to dilate upon any further in the matter as the Supreme Court of Pakistan has consistently held that the system prevailing in Pakistan continues to be Parliamentary in nature. It was so held in the cases of Federation of Pakistan v. Haji Saif Ullah Khan PLD 1989 SC 166, Mian Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 738 and recently in the second Judges case, Al-Jehad Trust through Raees ul Majahideen Habib Al-Wahabul Khairi v. Federation of Pakistan supra.[p. 275]C

In para. 64 of his judgment, learned Chief Justice speaking for the Court observed that it would appear that by virtue of 8th Amendment more powers have been given to the President to provide him the effective role but the Parliamentary form of Government has been retained. It was specifically observed that the Amendments inserted by Constitution (Eight Amendment) Act, 1985 did not show that the form of Government in the Constitution of Islamic Republic of Pakistan, 1973 has been changed from Parliamentary to Presidential. In the same case Saeedudzaman Siddiqui, J., in para. 21 of the judgment examined the changes brought about by 8th Amendment in Article 90 in detail. The following observations appearing in para. 25 of the judgment are as under:-

“From the above discussion, it is quite clear that the changes brought about in Article 48(1) and (2) and Article 90 of the Constitution through the 8th Amendment were neither unique nor extraordinary in character nor they were unknown in the Constitutional field. The makers of the Constitution, therefore, were deemed to be aware of the scope of these amendments and the manner in which these amendments were interpreted. In my view, therefore, the powers of President under the Constitution remained confined only to the extent they were conferred on him specifically under the Constitution.[p. 275, 276]D

Al-Jehad Trust through Raeesul Muhajideen Habib ul Wahab ul Khairi v. Federation of Pakistan and others PLD 1997 SC 84 ; Kh. Ahmad Tariq Rahim Saifullah Khan PLD 1989 SC 166 ref.

(b) Constitution of Pakistan (1973) Art. 48(5)(b)

This contention of the learned counsel is wholly without force. The two aspects which have been highlighted by the learned counsel undoubtedly are attributes of a Parliamentary form of Government but cannot be made basis for denying the power to the President to appoint a Caretaker Government headed by a Prime Minister in view of the clear language of Article 48(5) of the Constitution. The general rule that Prime Minister must be a member of the National Assembly and the Government must be answerable to the Parliament must yield to the exception created by Article 48(5) where on account of dissolution of National Assembly it is impossible to appoint one of its members as Prime Minister.[p. 276]E

Federation of Pakistan and other v. Haji Muhammad Saifullah Khan and other PLD 1989 Sc 166 ref.

(c) Constitution of Pakistan (1973) Art. 48(5)(b)

Article 48(5) of the Constitution enjoins the President to appoint a caretaker Cabinet to run the affairs of the country pending the elections to the National Assembly and formation of Government. The use of word ‘Caretaker’ is not without significance and has to given some meaning. The argument of the learned Attorney-General and Mr. Sharif-ud-Din Pirzada that ‘Caretaker’ signifies the temporary nature of the tenure appears to be attractive and coming from a jurist like Mr.Sharif-ud-Din Pirzada is entitled to great respect but with due deference we are unable to agree with them. A Cabinet appointed by the Prime Minister to run the affairs of the country till the next General Elections by its very nature is temporary and the life of it is limited by the Constitution itself till the next General Elections which are to be held within 90 days. It was thus not necessary to use the word ‘Caretaker’ to indicate temporary nature of the tenure. On the other hand we are of the view that this word has been used in Article 48(5) to emphasise the purpose of appointment and the nature of the power available to the Caretaker Government.[p. 278]G

Although no hard and fast rules can be laid down in respect of the powers available to the Caretaker Cabinet to take decisions as the answer would depend upon facts of each case but generally speaking a major policy-decision which can await the formation of regularly elected Government without causing any disruption or danger to the functioning of the State or orderly running of the country should be left to be determined by the elected representatives of the people, more so when the Caretaker Cabinet cannot claim to have been given any mandate by the people. There may not be any express restriction on the powers of the Caretaker Cabinet by the Constitution itself but this conclusion flows from the use of words “Caretaker Cabinet in article 48(5) of the Constitution as also very nature of the Caretaker Cabinet and the purpose for which it has been appointed [p. 280]H

Kh. Muhmmad Sharif v. Federation of Pakistan and 18 other PLD 1988 Lah. 725, Federation of Pakistan and other v. Aftab Ahmed Khan Sherpao and others PLD 1992 SC 723 ref.

Constitution of Pakistan (1973), Arts 48(5), 90 & 99 r/w Rule 20-A of Rules of Business 1973–

This brings us to the question as to whether the decision to establish C.D.N.S. could have been taken by the Caretaker Cabinet. A perusal of the notification under challenge shows that the Council has been constituted to advise the Federal Government on the matters relating to defence and national security, both of which are undoubtedly are by their very nature matters not only of immense importance but are such which do not brook even delay of single day. If the Government of the time feels that it is necessary to attain the advice on these vital matters from a Council like C.D.N.S., comprising of experts, it would idle for anyone to raise any objection in his behalf. It goes to the credit of Mr. Pirzada that personally he would have liked that the decision to set up such a Council should be taken by the elected representative. But as has been pointed out by him, in the present proceedings we are only called upon to determine the legality of the decision and not its propriety nor can we substitute our opinion for that of the Government as to whether or not formation of the Council was justified by the situation prevailing in the country. The Constitution and existence of the Council is essentially linked up with the be the matter to be considered by the new Government, of course, keeping in view the national interest.[p.280]I

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