h1

P L D 1997 LAHORE 38

MIAN MANZOOR AHMED WATTOO

V/S

FEDERATION OF PAKISTAN & 3 OTHERS

Per Malik Muhammad Qayyum, J.

(a) Constitution of Pakistan (1973)–Art, 1–

Before adverting to the contentions raised by the learned counsel for the parties, it would be benefit to state some of the features of our Constitution. Admittedly, Pakistan is an Islamic Republic having Federal Character as is stated in Article 1 of the Constitution. In the such a system there is a clear division and demarcation of powers between the Federation and the Federating Units. The Federation cannot claim any ascendancy over its Units.[p.60]A

Although we agree with Mr.Aitzaz Ahsan that the division of powers between the Federation and its Units must yield to supreme interest of unity and solidarity of Federation and in the event of emergency or calamity like Constitutional breakdown. Federation must possess the necessary power to intevence but this power besides being drastic constitutes an inroad into the Provincial autonomy and if not properly used can destroy equilibrium between the Federation and the Federating Units which besides leading to the Units which is not healthy for a Federation. As pointed out by late Mr.A.K. Brohi in his treatise titled Fundamental Law of Pakistan, First Edition, 1958, at page 277, when a Proclamation of Emergency is enforced, the federal character of a policy gets transformed into one of unitary form and the National Government becomes the paramount and supreme authority within the country. The following statement of law appears in an Introduction to the Study of the Law of Constitution by A.V. Dicey, 10th Edition, at page 151:-

“The distribution of powers is an essential feature of Federalism. The object for wh9ich a Federal State is formed involves a division of authority between the National Government and the separate States. The powers given to the nation form in effect so many limitations upon the authority of the separate States, and as it is not intended that the Central Government by the States, its sphere of action necessarily becomes the object of rigorous definition.”[p. 60]B

Art, 234–Article 234, Constitution of Pakistan (1973) deals with Constitutional emergency.

However, under our Constitution the Federation has been granted power to intervene in the event of emergency which may be physical, fiscal or Constitutional in nature. Article 234 of the Constitution deals with the last kind of emergency. Similar is the language of Article 356 of the Indian Constitution and section 92-A of the Government of India Act. 1935, as amended.[p. 61]C

It follows from the above that the provisions like Article 234 which are in the nature of an exception must be sparingly used and strictly constued.[p. 62]D

Arts. 234 & 58(2)(b)–Powers of President to issue Proclamation and to dissolve National Assembly–Conditions.

On the language of Article 234 of the Constitution, it is apparent that the power granted to the President to issue Proclamation is not granted to the President to issue Proclamation is not unbridled or uncontrolled but is circumscribed by two conditions. Firstly, that the President must be satisfied and secondly, that the satisfaction must be that that affairs of the Province cannot be run in accordance with the Constitution. ‘Satisfaction’; is a word much stronger than mere opinion and has its own connotation. [p. 63]E

On the other hand, whatever be the position in India, so far as Pakistan is concerned, it is well settled that the satisfaction must be objectives and based upon some material having nexus with the purposes of Article 234 of the Constitution. It is true that this Court cannot sit in appeal over the satisfaction of the President nor can it substitute it own opinion for that of the President but nevertheless it must be shown that the material on the basis of which the President has acted is relevant to the conditions mentioned in Article 234 of the Constitution.[p. 64]F.

The ratio of all these cases is that in order to show that the affairs of the Federation or the Province, as the case may be, cannot be run in accordance with the Constitution, it must be demonstrated that there was a deadlock or a Constitutional breakdown or the existence of a situation not contemplated by the Constitution and for which it does not otherwise cater for or provides a remedy. If a situation can be remedied by following other provisions of Constitution, action under Article 58 (2) (b) or Article 234 of the Constitution cannot be taken. (P. 64)G

It is obvious from the above that the difference noted by the Supreme Court between the two Constitutional provisions were ; firstly that while under Article 58(2)(b) an appeal to the electorate is necessary, it is not so where action is taken under Article 234 of the Constitution and secondly that while in the former case it is necessary to show that breakdown of Constitutional machinery was total, in the latter case breakdown may be temporary not necessitating appeal to the electorate. It is however clear that even in case of proclamation issued under Article 234 it must be demonstrated that there is breakdown of Constitutional machinery though temporary in nature.

Subject to these distinctions pointed out by the Supreme Court itself, the rule laid down in Haji Saif Ullah and Muhammad Nawaz Sharif’s cases would clearly apply while interpreting the expression “the Government cannot be run in accordance with the Constitution” even in a case arising under Article 234 ibid. This is clear from the last three lines of the above-quoted paragraphs wherein it has been observed that the said expression has been construed by the Supreme Court in the cases of Haji Saif Ullah and Mian Muhammad Nawaz Sharif supra. Same view was taken by Saeed-uz-Zaman Siddiqui, J, in Sabir Shah’s case supra at page 838 of the report.[P. 66]H

Even in India, in the context of Article 356 of the Constitution which is similar to Article 234 of our Constitution, the expression has been held to mean the breakdown and failure of Constitutional machinary. Reference may be made to the recent case of S.R. Bommal and others v. Union of India and others (AIR 1994 SC 1918) wherein while defining the said expression has been held to mean the breakdown and failure of Constitutional machinery. Reference may be made to the recent case of S.R. Bommai and others v. Union of India and others (AIR 1994 SC 1918) wherein while defining the said expression, it was observed by P.B. Swant, J. at page 1923:-

“The word ‘cannot’ emphatically connotes a situation of impase. In Shorter Oxford Dictionary the word: can is defined as to be able; to have power or capacity’. The word ‘cannot’, therefore, would mean not to be able’ or ‘not to have the power or capacity’. Hence situations which can be remedied or do not create an impasse, or do not disable or interfere with the governance of the State according to the Constitution, would not merit the issuance of the Proclamation under the Article.” (p. 66)I

Pir Sabir Shah v. Federationof Pakistan and other PLD 1994 SC 738 and S.R. Bommai and other v. Union of India and other AIR 1994 SC 1918 ref.

The above cases the principles which can be called out is that unless it is shown that the Constitutional machinery has broken down or there is a deadlock or impasse it cannot be said that the affairs of the Province cannot be run in accordance with the Constitution. Further, if the situation can be remedied by following another provision of Constitution which caters for it proclamation under Article 234 cannot be issued.[p. 66]J

S.R Bommai and otherssv. Unionof Indiaand others AIR1994 SC1918 ref.

Be that as it may, we are clear in our mind that resignations of some or even considerable number of the Minister cannot constitute a situation in which it can legally be said that the affairs of the Province cannot be run in accordance with the Constitution. In law the resignations of the Ministers are totally alien and have no relevance for the purpose of determining whether such a situation exits.[p. 67]K

We are, therefore, surprised that on the basis of mere resignations of some of the Ministers from the Provincial Cabinet the functionaries of two Governments could have come to the conclusion that the affairs of the Province cannot be run in accordance with the Constitution where there was no deadlock, impasse or breakdown of Constitutional machinery even temporary in the Province.[p. 68]M

Learned counsel for the petitioner has pointed out that the Cabinet headed by the petitioner comprised of 225 Ministers and 224 Advisors out of whom 14 Ministers and 4 Advisors resigned. There is nothing on the record to show that these resignations resulted in impairment of the functions of the Government of Punjab in any manner. As already observed, resignations of Ministers are by itself not a ground for arriving at the conclusion that a situation had arisen where the affairs of the Province cannot be run in accordance with the Constitution. Even on factual plain therefore it is not shown that on account of resignations of the Ministers a Constitutional breakdown had occurred or that the functioning of the Government had been impaired.

A part from the report of the Governor, no other material which was available before the President has been placed before us to show that a situation had arisen in which Government of the Province cannot be carried on in accordance with Constitution. However, in the proclamation, there is a recital that some information from other sources was available with the President.[p. 68]N.

Mian Muhammad Nawaz Sharif v. Presidne of Pakistan and other PLD 1993 473 ref.

Arts. 234 & 130(5)–Proclamation by the Presidnet–Grounds–Validity–Even ifthere is some information available with the Governor or the President that Chief Minister of the Province has lost confidence of the Members of the Assembly yet in law, such ground is wholly irrelevant for the purpose of Art.234 of the Constitution inasmuch as the Constitution itself takes care of such situation and ordains that in such an eventuality the Chief Minister must be put to floor test either by directing him to obtain a vote of confidence under Art. 130(5) of the Constitution or by moving a vote of no confidence against him–Neither the President nor the Prime Minister nor the Governor has any power or authority to act in any other more or method–Contention that since the Chief Minister had lost confidence of the members of the two parties forming coalition, the Governor and the Presidne could on the basis sof thier own innformation taken such an action, was repelled.

Be that as it may, even if it be assumed that there was some information avaliable with the Governor or the President that the Chief Minister of the Province had lost confidence of the Members of the Assembly yet in law, this ground is wholly irrelevant for the purposes of Article 234 of the Constitution inasmuch as the Constitution itself takes care of such a situation and ordains that in such an eventuality the Chief Minister must be put to floor test either by directing him to obtain a vote of confidence against him. Neither the President nor the Prime Minister nor the Governor has any power or authority to act in any other mode or method. Consequently the contention that since the Chief Minister had lost confidence of the members of the two parties forming coalition, the Governor and the President could on the basis of their own information, take such an action could not be accepted.[p. 69]O.

The addition of the words “and require the Chief Minister to obtain a vote of confidence from the Assembly” in Article 130(5) of the Constitution, by Constitution (Eighth Amendment) Act, 1985 leaves no room for doubt that the only forum where the question of confidence or otherwise in the Chief Minister, can be determined, is the Assembly itself and the power in this respect vests in the members of the Provincial Assembly alone (p. 70) P

As already observed, the question as to whether the Chief Minister enjoys confidence of the majority has to be decided on the floor of the Assembly by the Members and not by the Presidnet or the Governor nor even by the Court (p. 72) T.

It is not within domain of the Court or the Governor to decide question which can only be determined by the Members of the Punjab Provincial Assembly and that too in a Session called for that purpose (pp. 73, 75)V

Province of Balochistan and others (PLD 1989 Quetta 25) as also by the Supreme Court of Pakistan in Haji Saif Ullah Khan (PLD 1989 SC 166) wherein it has been ruled that if the question before the Court though political in nature involves interpretation of Constitutional provision the Court is entitled to resolve the controversy: But as already observed, it is not within our domain to decide this question which can only be determined by the Members of the Punjab Provincial Assembly and that too in a Session called for that purpose and not by any one else.[p. 75]X.

In view of the above, it is idle on the part of the respondents to contend that the President or the Governor could not acted on any information obtained aliende dehors the Assembly.[p. 75] W.

In view of this clear pronouncement of the Supreme Court, the contention of the learned counsel for the respondent that the satisfaction of the Governor may be based upon other information like resignations of the Ministers or decisions taken in the party meetings, cannot be accepted.[p. 70]Q.

(b) Constitution of Pakistan (1973) Art–234–

It may, even if these documents are taken into consideration, no case for invocation of Article 234 of the Constitution is made out. The majority of these documents are letters written by late Ch. Muhammad Altaf Hussain, the former Governor of the Punjab in May/June 1994 complaining about deterioration in law and order situation. Out of the remaining documents, there are two letters addressed by Mr. Justice Muhammad has appointed an advisor without informing him and a letter dated 28-6-1995 addressed by respondent No.4 to the Prime Minister in which his complaint is that the Chief Minister has allocated large number of development funds to his constituency creating imbalance. The last letter to which reference was made by the learned counsel is again a letter by respondent No.4 in which he has taken exception to certain contracts awarded by the Provincial Government and has asked the Government of Punjab to submit projects referred to in the letter to the Planning Division. It is not ascertainable from the record as to what action was taken pursuant to above letters. So far as the letters written by Ch. Altaf Hussain are concerned, those are of May/June, 1994 and relate to law order situation in the Province and cannot furnish a basis for issuance of proclamation under Article 234 of Constitution in September, 1995. Same is true as regards isolated and scattered incidents pointed out by the then Acting Governor and respondent No.4 which cannot lead to the conclusion that the Acting Governor and respondent No.4 which cannot lead to the conclusion that the Province was not being governed in accordance with Constitution.[p. 76]Y.

The above discussion, the conclusion which is inevitable is that the Proclamation under Article 234 of the Constitution is clearly outside its scope for the reasons; firstly that no Constitutional deadlock or breakdown of Constitutional machinery has been shown to exist; secondly, that the resignations of the Ministers and Advisers from the Cabinet cannot be considered to constitute a situation in which the Government of Province cannot run in accordance with the Constitution; that the question as to whether the Chief Minister enjoys confidence of the majority is also wholly alien to and has no nexus with Article 234 of the Constitution; that in any event such a question can only be decided in the Assembly by its Members and not otherwise.[p. 77]AA, BB

Before parting with this aspect of the case, we may also take notice of the argument of Raja Muhammad Anwar, Advocate who while relying on Article 236(2) of the Constitution has contended that the Proclamation cannot be struck down by this Court on may ground whatsoever. We need not dilate upon this aspect of the case in view of the pronouncement of the Supreme Court in Pir Sabir Shah’s case supra, wherein similar objection raised was repelled in the following words:-

“In the present case, the proclamation has been issued under Article 234, it has not been protected by any Article like Articles 281 and 270-A, which were the subject-matter of the above judgments in the case of Zia-ur-Rehman, Saeed Ahmad Khan and Malik Ghulam Mustafa Khar (supra) but the protection is sought under clause (2) of Article 236 of the Constitution, which is of general nature purporting to protect all proclamations issued under Part X of the Constitution. I am, therefore, of the view that clause (2) of Article 236 will not cover a Proclamation which is without jurisdiction, coram non judice or mala fide and the superior Courts will have jurisdictional legal aspects.”

Again at page 819 it was observed by Saiduzzaman Siddiqui, J :

“I am, therefore, of the view that in the spite of the bar contained in Article 236(2) (supra) Courts in exercise of their power of judicial review can examine the validity of the Proclamation issued under Article 234 of the Constitution and if it is found that the Proclamation is either issued mala fidely or it is in excess of jurisdiction or without jurisdiction or is coram non judice the Courts can declare it as invalid and unconstitutional.”[p. 77]CC

Equally unfounded is the contention raised by Mr. Aitzaz Ahsan that as the Proclamation was issued by the President on the advice of the Prime Minister, this Court cannot look into the material forming basis of the advice in view of Article 48(2) of the Constitution. Article 48(2) ibid only prohibits this Court form going into the question as to what advice was tendered by the Prime Minister to the President and not from examining the Constitutional legality of the Proclamation issued by the President in that behalf. We may also state that in the case of S.R. Bommai and other v. Union of India and others (AIR 1994 SC 1918), the Supreme Court of India has taken the view that similar provisions in Indian Constitution does not take away the jurisdiction of the Courts to examine the material on the basis of which the President had passed the order.

To be fair to the learned Attorney General, it may be observed that he did not dispute the proposition that in case the Proclamation is found to be without jurisdiction, mala fide or coram non judice, the same can be interfered with by the superior Courts in the exercise of Constitutional jurisdiction.[p.78]DD.

S.R Bommaai and other v. Union of Idia andothers AIR 1994 SC 1918 ref.

In the present case, as already found, the Proclamation issued under Article 234 of the Constitution was totally without jurisdiction having been issued for the purposes not contemplated by Article 234 of the Constitution and having no nexus with it and for extraneous considerations. It also suffers from malice in law as would be explained later on while dealing with the question of mala fide.[p. 78]EE

Applying these principles to the present case it is clear that the report made by the Governor, the proclamation issued under Article 234 of the Constitution as also the other of the Governor directing the petitioner to obtain vote of confidence suffer from malice in law inasmuch as Article 234 of the Constitution could not have been invoked on the ground that the Members of Cabinet had resigned or that the Chief Minister had lost confidence of the majority at least without putting him to floor test and also because Governor could not during the currency of the proclamation ask the Chief Minister who has ceased to function to obtain vote of confidence.

Having dealt with the contentions raised by the learned counsel for the petitioner in support of this petition we will now examine various objections raised by the respondents as to the maintainability of this petition.[p. 83]PP

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: