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P L D 1997 SC 84

AL-JEHAD TRUST THROUGH RAEES-UL-MUJAHIDIN
HABIB AL-WAHABUL KHAIRI,

V/S

FEDERATION OF PAKISTAN

Frame (2)
Per Sajjad Ali Shah, C.J.

(a) Constitution of Pakistan (1973), Articles 186, 48, 90 & 99

In the Memorandum of Reference NO.2/1996 filed by the President of Pakistan it is stated that after the judgment of 20-3-1996 in the appointment of Judges case, in the process of implementation of the judgment, some directions have been complied with and the others have not, particularly in respect of the Judges who were not recommended for regularisation and the Chief Justice of Pakistan wrote to the President to intervene to break the deadlock. As against that the then Prime Minister took up the position that there was no deadlock and she was the head of the Government of which the Chief Justice was a part and the Government was consulting him in spite of the fact that his own position was disputed through a petition pending before the Peshawar High Court and steps were being taken to decide the cases of the Judges who were not recommended for regularisation. For the Memorandum of Reference No. 2/1996 relevant portion at pages 11 and 12 is reproduced as under:

“The Judges of the Supreme Court and the High Courts are holders of Constitutional office. The requirement and mandate of the Objectives Resolution, which now forms a substantive part of the Constitution, is that such appointments be made in order to fully secure the independence of the judiciary. It is therefore a moot point whether the President’s power to make such appointments is subject to the provisions of Article 48(1) which prescribes that in the exercise of his functions the President shall act in accordance with the advice of the Prime Minister.

In this matter, the following points need consideration:—

(i) the appointments to the Constitutional offices forming part of the judicial organ of the State, would appear to be a sacred Constitutional duty and not the exercise of an executive function;

(ii) the appointments of the Judges of the Supreme Court and the High Courts are to be made by the President after consultation with named Constitutional consultees. It appears prima facie that the power to make these appointments after such consultation is within the ambit and scope of Article 48(2) of the Constitution.

(iii) As events since the announcement of the Supreme Court Judgment in the Al-Jehad Trust case have shown, the prime Constitutional objective of securing the independence of the judiciary requires that the President should be the effective appointing authority for Judges forming part of the Judicial organ of the State, in accordance with the judgment given in that case.”

The above quote shows clearly that in respect of appointments of Judges in the superior Courts the President wants to know whether he is bound by the advice of the Prime Minister as contemplated under Article 48(1) of the Constitution or such appointments are covered by Article 48(2) in which President has been given power to act in his discretion without advice of the Prime Minister. Article 186 of the Constitution, which relates to the advisory jurisdiction of the Supreme Court, contemplates that if at any time, the President considers that it is desirable to obtain opinion of the Supreme Court on any question of law which he considers to be of public importance, he may refer the question to the Supreme Court for consideration. Concept of advisory jurisdiction of the Supreme Court goes back and originates from section 213 of Government of India Act, 1935, under which Governor-General could send a question of law, which was of such a nature and of such public importance to the Federal Court for consideration, if in was considered by him to be expedient to do so. After partition when Pakistan came into existence, in our first 1956 Constitution provision was made for advisory jurisdiction of the Supreme Court under Article 162 to enable the President to obtain opinion from the Supreme Court of Pakistan if it appeared to him that question of law has arisen or is likely to arise, which is of such a nature and of such public importance. In our 1962 Constitution Article 59 provided that the President, if he considers desirable to obtain the opinion on any question of law which he considers of public importance he may refer the question to the Supreme Court for consideration. The same provision is written in 1973 Constitution. Opinion of the Supreme Court is just opinion with explanation on the question of law and is not of binding nature and it is up to the President or the Federal Government to act upon it or not.

What is question of law which President considers to be of public importance would vary from case to case. In some cases it can be a question of law and of public importance in which Federal Government as a whole is interested to make enquiry without there being any difference of opinion between President and the Prime Minister.

For such a situation, which is the normal course, it is indisputable that advisory jurisdiction of the Supreme Court can be invoked by the President on the advice of the Prime Minister. With the exception of 1962 Constitution which envisaged exclusively Presidential Form of Government, our Constitution of 1956 and present Constitution of 1973, both provide for Parliamentary Form of Government with Federal Government composed of President and the Prime Minister.

Article 90 of our 1973 Constitution envisages that the Executive Authority of the Federation shall vest in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 99 provides that all Executive actions of the Federal Government shall be expressed to be-taken in the name of the President. In exercise of powers conferred by both these Articles, the Federal Government has made Rules of Business of 1973 under Schedule V-B, Rle 15-A(1), list is made of cases requiring orders of President on the advice of the Prime Minister, Entry No. 54 specifically mentions Reference to the Supreme Court on any question of law to be filed under Article 186, which is to be done on the advice of the Prime Minister. The only difference in the Reference under consideration before us, is that initially it was filed by the President without the advice of the Prime Minister as he wanted to find out whether advice of the Prime Minister is binding upon him or not as contemplated under Article 48(1) of the Constitution in respect of the appointments of Judges in the Superior Courts. Earlier, Reference No. 1 of 1996 was filed by the Federal Government in the Supreme Court which was not signed by the President and when it was returned by the Office of the Supreme Court with such objection, only then it was signed by the President and re-filed. This only shows differences prevailing between the President and Prime Minister on the question whether advice of the Prime Minister is binding upon President or not in respect of appointments of Judges in the Superior Judiciary and particularly in view of implementation of the judgment of the Supreme Court in the case of appointment of Judges. However, even in Reference No. 2 of 1996 during the hearing in the Court ex post facto approval was obtained from the Cabinet and such copy was brought on the record. So, it can be safely said that maintainability of Reference No.2 of 1996 is not open to question on any ground. Moreover, the same question of law upon which opinion of this Court is being sought under advisory jurisdiction is also pending before us in the adjudicatory jurisdiction in C.P. 23/1996 and C.P.54/1996 which are being heard alongwith this Reference. Finding of this Court rendered under adjudicatory jurisdiction is binding upon all and can be considered as opinion rendered under the advisory jurisdiction as well. [pp. 113, 114, 115, 116] B, C, D, E & F

(b) Constitution of Pakistan (1973), Articles 90(1) & 48(1)

Second point mentioned above is as to who is Head of the Executive after the Eight Amendment. Chapter III in the Constitution of 1973 defines the Federal Government. Before Eight Amendment, Article 90(1) reads that subject to the Constitution, the Executive Authority of the Federation shall be exercised in the name of the President by the Federal Government consisting of the Prime Minister and the Federal Ministers, which shall act through the Prime Minister, who shall be the Chief Executive of the Federation. After Eight Amendment, Article 90(1) reads that the Executive Authority of the Federation shall vest in the President and shall be exercised by him either directly or through officer subordinate to him in accordance with the Constitution. Now, the question arises for consideration whether modification in the language as provided in the amended Sub-Article (1) of Article 90 after Eight Amendment has given Executive Authority of Federation to the President instead of Prime Minister or no difference is made as the Executive Authority of Federation to the President instead of Prime Minister or no difference is made as the Executive Authority of the Federation is still to be exercised by the President in accordance with the Constitution which includes Article 48(1) providing that in the performance of his functions, the President shall act in accordance with the advice of the Cabinet or the Prime Minister. Language used in Article 90(1) after Eight Amendment is borrowed and bodily lifted from Article 53 of the Constitution of India, and in India there is Parliamentary Form of Government and Article 53 is read with Article 74 in their Constitution and the latter Article provides that there shall be a Council of Ministers with Prime Minister at the Head to aid and advise the President, who shall in the exercise of his functions, act in accordance with such advice so the answer is that under Article 90(1) executive authority is to be exercised by the President in conjunction with Article 48(1) of the Constitution, which requires that President shall act in accordance with such advice so the answer is that under Article 90(1) executive authority is to be exercised by the President in conjunction with Article 48(1) of the Constitution, which requires that President shall act in accordance with the advice of the Cabinet or the Prime Minister. [pp. 133, 134] I

(c) Constitution of Pakistan (1973), Interpretation

In fact, there is no cavil with the proposition that if there are two provisions in the same statute and one is general and the other is special, then while interpreting the provisions the presumption would be that the general provision was not intended to interfering with the operation of the special provision. [p. 136] L

In the context of what is stated above, it is to be seen whether really there is conflict between Article 48(1) and Articles 177 and 193 of the constitution. Interpretation of the provisions of the Constitution is to be done in a responsible manner and is to be done in such a way that the Constitution is construed as a whole as an organic instrument and no part of it is rendered as redundant. [p. 139] M

Per Saiduzzaman Siddiqui, J.

(d) Constitution of Pakistan (1973), Interpretation

The concept of responsible Government or 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. Sharifuddin 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 Constitutions differently. Suffice it to say that the Courts while interpreting a written Constitution, will go by the wording of the documents and will not allow it to be influenced or overridden by any extraneous principles of other Constitution not explicitly incorporated in the scheme chosen by the Framers of the Constitution. [pp. 235, 236] YY & ZZ

Per Raja Afrasiab Khan, J.

(e) Constitution of Pakistan (1973), Interpretation

Side by side, it may also be noted that well-established conventions and practices have always been treated as part of the Constitution provided they do not violate/contravene the provisions of a written Constitution. It was so held by this Court in Al-Jehad Trust’s case (supra). The consistent practice in the past has been that the appointments in the superior Judiciary were made by the President on the advice of the Prime Minister. [p. 262] VVV

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