h1

P L D 1998 SC 388

MOHTARMA BENAZIR BHUTTO AND OTHERS

V/S

PRESIDENT OF PAKISTAN AND OTHERS

Frame (1)

Per: Sajjad Ali Shah, C.J.

(a) Constitution of Pakistan (1973) Art. 239

These cases relating to the Eighth Amendment were heard by a Bench of seven Judges as is presently constituted and short order was passed on 12-1-1997 holding that the Eighth Amendment has come to stay in the Constitution unless it is amended in the manner prescribed in the Constitution. In the result the Civil Appeals and the Constitutional petitions on the subject were dismissed by a short order.[p. 428] A

(b) Constitution of Pakistan (1973) Art. 239

The English Amendment was inserted in the Constitution in 1985, after which three elections were held on party basis and since those parliaments did not touch this amendment, it has come to stay in the Constitution unless amended in the manner contemplated under Article 239 of the Constitution. [p. 433] B

(C) Administration of justice—

We always want that the law should be allowed to take its normal course and the forums where such cases are pending should be allowed to decide them and other forums provided under the law for hearing of appeal should be allowed to be approached as laid down and specifically provided in that law.[p. 467] M

(d) Interpretation of Constitution—

—Construction of provisions of Constitution—Principles.

“The Constitution is a living organism and has to be interpreted to keep alive the traditions of the past blended in the happening of the present and keeping an eye on the future. Constitution is the symbol of statehood keeping united people of different races, diverse cultural, social, economic and historical traditions. It provides a method of legitimacy to the Government. It is the power behind the organs and institutions created by it. Constitution must be interpreted keeping in view the entire canvass of national fabric be it political, social, economic or religious.”[p. 561] VVV

Constitution is the supreme law of the land to which all laws are subordinate. Constitution is an instrument by which Government can be controlled. The provisions in the Constitution are to be construed in such a way which promotes harmony between different provisions and should not render any particular provision to be redundant as the intention is that the Constitution should be workable to ensure survival of the system which is enunciated therein for the governance of the country. It is held in opinion of the Supreme Court in Special Reference No.1 of 1957(PLD 1957 SC 219) that effect should be given to every part and every word of the Constitution. Hence, as a general rule, the Courts should avoid a construction which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory.[p. 561] SSS

In the case of Nawaz Sharif also, on the subject of interpretation of the Constitution, it is held that, while interpretation of the Constitution, it is held that, while interpreting fundamental rights, the approach of the Court should be dynamic, progressive and liberal keeping in view ideals of the people, socio-economic and politico-cultural values which in Pakistan are enshrined in the Objectives Resolution so as to extend the benefit of the same to the maximum possible.[p. 561] TTT

In the case of Al-Jehad Trust v. Federation of Pakistan(PLD 1996 SC 324), it is held that approach of the Court while interpreting a Constitutional provision has to be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. Court’s efforts should be to construe the provision broadly, so that it may be able to meet the requirement of ever changing society. General words cannot be construed in isolation but the same are to be construed in the context in which they are employed. [p. 561] UUU

Special Reference No.1 of 1957 PLD SC 219; State v Zia-ur-Rehman PLD 1973 SC 49; Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and Khalid Malik v. Federation of Pakistan PLD 1991 Kar. 1 ref

Words and phrases—

It therefore, appears that stalemate and dead-lock mean more or less same thing, while breakdown can be on account of stalemate or dead-lock, and stalemate and dead-lock can include or can occur on account of breakdown as well. Hence meaning of these words are interchangeable. Therefore, the views taken in both the cases of Saifullah and Tariq Rahim can be read in conjunction with each other while interpreting Article 58(2)(b) and in that connection the Court has to see whether there is enough material in support of the grounds for dissolution and the President was right in his opinion and has exercised his discretion justifiably and in that exercise the President is not to be equated with Court of law but it can be expected from him that he would act within the rules of prudence and fairplay.[p. 563] YYY

Per: Saleem Akhtar, J.

(e) Interpretation of Constitution—

It can be observed that the Courts in the United States have extended the meaning of “unreasonable search and seizure” to cover telephone-tapping and eaves-dropping, but we have not to go too far to seek such interpretation as our Constitution in clear terms guarantees that the dignity of man and subject to law, the privacy of home, shall be inviolable and further that no person shall be deprived of life or liberty save in accordance with law. One may on strict interpretation of the words ” the privacy of home” say that such guarantee is restricted to privacy of home and not office or any other premises outside home. This would be a restricted, illogical and completely out of context interpretation. The Constitution is to be interpreted in a liberal and beneficial manner which may engulf and incorporate the spirit behind the Constitution and also the Fundamental Rights guaranteed by the Constitution. The dignity of man and privacy of home is inviolable, it does not mean that except in home, his privacy is vulnerable and can be interfered or violated. Home in literal sense will mean a place of abode-a place where a person enjoys personal freedom and feels secure. The emphasis is not on the boundaries of home but the person who enjoys the right wherever he may be. The term ‘home’ connotes meaning of privacy, security and non-interference by outsiders which a person enjoys. According to Ballentine’s Law Dictionary, “in ancient law French, the word (home) also signified man”. It also defines as “sometime including not only at place of abode, but also support and maintenance”. We are of the opinion that wider meaning should be give to the word ‘home’. The term ‘privacy of home’ also symbolises the security and privacy of a nature which a person enjoys in his home. The term “privacy of home” cannot be restricted to the privacy in respect of home, the privacy within the four walls of the home. It refers to the privacy, which is sacred and secure like the privacy a person enjoys in his home. Such privacy of home a person is entitled to enjoy wherever he lives or works, inside the premises or in open land. Even the privacy of a person cannot be intruded in public places.

The inviolability of privacy is directly linked with the dignity of man. It a man is to preserve his dignity, if he is to live with honour and reputation, his privacy whether in home or outside the home has to be saved from invasion and protected from illegal intrusion. The right conferred under Article 14 is not to any premises home or office, but to the person, the man/woman wherever he/she may be.[p. 621] FF

Per: Zia Mahmood Mirza, J, Cortra–

(f) Constitution of Pakistan (1973), Art. 58(2)(b)

Under clause(1) of Article 58 President is bound to dissolve the National Assembly if so advised by the Prime Minister and in case he fails to do so, the Assembly shall stand dissolved automatically at the expiration of forty-eight hours after the Prime Minister has to advised. Under clause (2), however, the President has been empowered to dissolve the National Assembly in his discretion, in two situations, firstly when in his opinion, a vote of no confidence having been passed against the Prime Minister, no other member of the National Assembly is likely to command the confidence of the majority of the members and secondly when in his opinion, a situation of the arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate has become necessary.[p. 737, 738]A

The propositions/principles emerging from the foregoing survey of the case-law may broadly be summed up as follows:-

1- President is empowered under clause (2) of Article 58 to dissolve the National Assembly in his discretion.

2- The discretion conferred on the President by Article 58(2) is not absolute but is fettered/circumscribed by pre-conditions/prerequisites prescribed in sub-clause (b) viz. that ‘a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution’ and ‘an appeal to electorate is necessary’.

3- That before ordering the dissolution of National Assembly in exercise of his discretion, the President is obliged to form an opinion, honestly and objectively, as to the existence of preconditions mentioned in sub-clause (b) of Article 58(2).

4- That the formation of opinion must be founded on some material placed before and duly considered by the President at the time when the formed the opinion.

5- That the grounds/circumstances forming the basis of the opinion must have direct and reasonable nexus with the preconditions prescribed in Article 58(2)(b).

6- If not the exercise of discretion, at least the formation of opinion by the President necessitating the exercise of power is open to judicial review.

7- That the provision empowering the President to dissolve the National Assembly in his discretion being drastic in nature is to be construed strictly and this power must be exercised sparingly and only in an extreme situation when no other option is available within the framework of the Constitution.

8- That the situation envisaged in sub-clause (b) of Article 58(2) viz. that the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution contemplates a situation where the machinery of the Government is completely broken down and its authority eroded and the Government cannot be carried on in accordance with the provisions of the Constitution (as held in the case of Haji Muhammad Saifullah (PLD 1989 SC 166), breakdown of Constitutional mechanism, a stalemate, a deadlock in ensuring the observance of the provisions of the Constitution (as interpreted/explained by Shafiur Rahman, J. in his separate note recorded in the case of Haji Muhammad Saifullah); or as observed in Ahmed Tariq Rahim’s case (PLD 1992 SC 646) where there is and actual or imminent breakdown of the Constitutional machinery, where there takes place extensive, continued and pervasive failure to observe numerous provisions of the Constitution creating an impression that the country is governed by extra-Constitutional methods.
[p. 753, 754]B.

The scope of Article 58(2)(b) no doubt appears to have been somewhat expanded in the case of Ahmed Tariq Rahim (supra) so as to bring within the mischief of the said provision not only the actual but also imminent breakdown of the Constitutional machinery and it was also observed therein by Shafiur Rehman, J. (who wrote the leading judgment for the majority in the said case) that there may be occasion for the exercise of power under Article 58(2)(b) when there takes place extensive, continued and pervasive failure to observe not one but numerous provisions of the Constitution creating an impression that the count ry ?? is governed not so much by the Constitution but by methods extra-Constitutional. It may be of interest note, however, that before expressing this view, Shafiur Rehman, J. had referred to section 45 of Government of India Act, 1935 which also contained the expression ‘a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of this Act’ and noted that this provision was commented upon by the authors of “the Constitutional Law of India & England” (J.N. Varma and M.M.[p. 759]C

The aforereferred comments/observations seem to support the view that the provision like the one contained in Article 58(2)(b) is to be given a narrow interpretation and the extreme power conferred thereunder is to be exercised not because there has been violation of or failure to comply with any particular provisions of the Constitution but only when the Constitutional machinery has broken down to an extent that it has become impossible for the representative and responsible Government to function in accordance with the provisions of the Constitution. Instances of such situation were quoted in good number in the cases referred to hereinabove which need not be repeated. It may pertinently be noted at this stage that when the Government of India Act, 1935 was being debated in the House of Lords. It was made clear on behalf of the Government that the phrase “Government cannot be carried on” in accordance with the provisions of the Act used in sections 45 and 93 of the Act (providing for failure/breakdown of Constitution machinery of the Government totally breaks down and not when the Constitutional Authorities carrying on the Government are functioning though not as good as one would wish. Viewed in the context of the aforenoted comments/observations, occasion for exercise of power under Article 58(2)(b) arises only when Constitutional machinery of the Government totally breaks down making it impossible for the representative Government to function in accordance with the provisions of the Constitution.[p. 761]D

If one may say so with respect, the case has to be taken at the strictest level as it has all along been held that the provisions of Article 58(2)(b) in so far as they impinge upon Parliamentary system of Government envisaged by t he Constitution, have to be construed strictly and used very sparingly only in extreme situations.[p. 762]E

On closer examination of the cases in which the provision of Article 58(2)(b) has been interpreted I find, if I may say so with respect, that the meaning and scope of this provision and the nature and extent of the power conferred thereunder, as enunciated in Haji Muhammad Saifullah’s case, was more in consonance with the language of the provision and the object and purpose of the amendment viewed in historical perspective. The interpretation placed on the provision in question in the case of Haji Muhammad Saifullah was also quite in keeping with the scheme of the Constitution providing for Parliamentary system of Government ensuring supremacy of the Parliament and it was also trutly reflective of the intention of the law-makers as amply demonstrated in their speeches made on the floor of the National Assembly.[p. 764]F.

As is manifest from the aforenoted provisions, highly arbitrary powers were conferred on the President in all matters in respect of which he was empowered by the Constitution to act in his discretion which included the power to dissolve the National Assembly in his discretion which power he could exercise arbitrarily as his decision on the question whether any matter was or was not in his discretion was made final and any action taken by him was immune from challenge.

The arbitrary and unbridled powers conferred on the President under R.C.O. (P.O. 14 of 1985) particularly in the matter of dissolution of National Assembly were, however, sought to be fettered by the Parliament through the Constitution (English Amendment) Act, 1985 which omitted clause (3) of Article 48 though incorporating the immunity provision in clause (2) of Article 48 and also substituted clause (2) of Article 58 laying down therein the conditions requisite clause (2) of Article 58 laying down therein the conditions requisite for the exercise of power conferred thereunder.[p. 766]G

Non abstante ???? clause “Notwithstanding anything contained in clause (2) of Article 48″ appended at the opening of clause (2) of Article 58 clearly had the effect of excluding the immunity from challenge provided for the Presidential Orders passed in his discretion thus leaving the orders of dissolution of Assembly passed under Article 58(2) open to judicial review. Not only that, the sub-clauses (a) and (b) of clause (2) of Article 58 also placed limits on the President’s power to dissolve the Assembly by prescribing the preconditions for exercising the power of dissolution of the Assembly. It appears that the then Prime Minister and the Law Minister speaking on the proposed amendment in clause (2) of Article 58 of the Constitution particularly brought out the purpose and object of the amended provision which was to provide a check against the arbitrary powers of the President. The Law Minister had also talked of the conditions obtaining in 1977 and observed that it was only in such conditions ‘when the machinery of the Federation is totally blocked and it becomes absolutely impossible for the Federal Government to function in the at case, the President will dissolve the Assembly”. These speeches were copiously referred to and reproduced the judgment of this Court in the case of Haji Muhammad Saifullah Khan (PLD 1989 SC 166) and it appears that it was on the basis of those speeches evidencing the intention of the law makers that it was held by this Court in the said case that an order of dissolution of Assembly can be passed by Presidnet only when the machinery of the Government has broken down completely and its authority eroded and at page 190 of the report, Nasim Hassan Shah, J. construed the expression ‘a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution to mean that the machinery of the Government of the Federation had come to a standstill or such a breakdown had accrued therein which was preventing the orderly functioning of the Constitution. The interpretation so placed also finds ample support from the language in which clause (b) of Article 58(2) is couched particularly the words ‘cannot’ occurring therein which have been defined in Shroud’s ?????? Judicial Dictionary (Fourth Edition), Vol 1 to include “a legal inability as well as physical impossibility”. These words connote a situation of an impasse, a deadlock, a stalemate. Construing his provision and the words ‘cannot’ used therein, Saad Saood Jan, J. held in the case of Muhammad Nawaz Sharif that the President can exercise his powers under Article 58(2)(b) ‘only if there is material before him showing that the affairs of the State have come to such a stage that it is no longer possible for the Government to function except by violating the Constitution”. Needles to point out that Sajjad Ali Shah, J. (the present Chief Justice) in his dissenting opinion recorded in the case of Ahmed Tariq Rahim followed/adopted the dictum laid down in Haji Muhammad Saifullah’s case and expressed the view that the dissolution of the Assembly would be justifiable if “the Constitutional machinery has failed and the Government was unable to run” (Emphasis supplied).[p. 766, 767]H

In the aforesaid view of the matter, I am inclined to agree with the learned counsel for the petitioner that the power to order dissolution of the National Assembly available under Article 58(2)(b) of the Constitution can only be exercised when the machinery of the Government has broken down completely and its authority eroded and/or there is a breakdown of Constitutional machinery to an extent that it has resulted in a state of deadlock or stalement. Learned Counsel was also right in contending that the provision invoked by the President for dissolving the National Assembly was intended to meet a situation of the kind which had arisen in the aftermath of the general elections held in March, 1977 which situation ultimately culminated in Martial Law imposed by General Zia-ul-Haq. As seen above, this was the perception of the movers of the Constitutional (English Amendment) Bill of 1985 which is manifest from the speech made by the then Law Minister on the floor of the National Assembly to explain the purpose and object of the provision contained in Article 58(2)(b). As noted above, the Law Minister had specifically referred to the conditions prevailing in 1977 saying that it was only in such conditions when the machinery of the Federation is totally blocked and it become absolutely impossible for the Federal Government to function that “the President will dissolve the Assembly” Quite evidently, following this perception, it was held by this Court in the case of Haji Muhammad Saifullah “Thus the intention of the law makers, as evidenced from their speeches and the terms in which the law was enacted, shows that any order of dissolution by the President can be passed and an appeal to the electorate made only when the machinery of the Government has broken down completely, its authority eroded and the Government cannot be carried on in accordance with provisions of the Constitution” and Shaifur Rehman, J. while interpreting the expression “cannot be carried on “in Article 58(2)(b) had observed that: “It concerns itself with the breakdown of the Constitutional mechanism, a stalemate, a deadlock in ensuring the observance of the provisions of the Constitution” and further added “the historical persective ???? in which such a provision found a place in the Constitution reinforces this interpretation”. ‘Historical Perspective’ is quite obviously the situtation of 1977. Incidentally, when recounting the situation of serious crisis which developed as a result of the widespread allegations of massive rigging in the elections held in March. 1977, this Court in Begum Nusrat Bhutto’s case (PLD 1977 SC 657), had used the phrases ‘breakdown of the Constitutional machinery’ complete breakdown of law and order. ‘deadlock’ ‘Constitutional and moral authority to rule the country as Prime Minister stood seriously eroded and ‘A situtation had arisen for which the Constitution provided no solution’ Quite significantly, such like expressions also find mention in the case of Haji Muhammd Saifullah. It may also pertimently the oberved that Rustam S.Sidhwa. I has held in the case of Khawaja Muhammad Sharif PLD 1988 Lahore 125 that “the power granted under sub-clause (b) of clause (2) of Article 58 was to specifically meet the type of necessary that had arisen in 1977 when the President had no power to dissolve the National Assembly, even though the mood of the whole country was against it.” It would also be worthwhile to notice that in the case of Khalid Malik v. Federation of Pakistan (PLD 1991 Karachi 1). Saleem Akhtar, J. (as he then was) visualized the following situtations when considering as to when can it be said that a situation has arisen in which the Government as to when can it be said that a situation has arisen in which the Government cannot be carried on in accordance with the provisions of the Cosntitution as contemplated in Article 5892)(b):-

“Such situation arises when the writ of the Government is not enforceable a climate of certainty and diffidence has been created on different levels of administration, there is general floutation ????? and disrespect to the organs and Developments of the State; the institutions, organs and authorities constituted under the Constitution and the law, flout of law, external aggression bringing the entire machinery of the Government at a standstill; internal disturbances, insurgency, revolt, rebellion or civil war economic crises which may paralyse the life and administration. Another situation may cover it when the Legislature no longer reflects the wishes or views of the electorate and they are at variance. There is large scale civil disobedience movement in which Government servants and employees of corporations, companies, banks and authorities connected with the day to day administration of the State refuse to cooperate and subject refuses to pay taxes. The majority ruling power refutes, violates or refuses to run the Government according to Constitution and law. The writ of Government is no longer respected and is not enforceable.”

The aforementioned situations appear to be quite akin to if not more serious than the conditions prevailing in the year 1977.[p. 767,768,769]I

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