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P L D 1998 SC 823

SYED MASROOR AHSAN AND OTHERS

V/S

ARDESHIR COWASJEE AND OTHERS

Frame (5)

(a) Constitution of Pakistan (1973) Arts. 175(2), 66 & 68

It will not be out of context at this stage to observe that our country has a Federal System of Government, which is based on trichotomy of power, each organ of the State is required to function/operate within the bounds specified in the Constitution. Though one can say that Judiciary is the weakest limb as it does not have the resources or powers which the Legislature or the Executive enjoy, but it has been assigned very important and delicate role to play, namely, to ensure that none of the organs or the Government functionaries acts in violation of any provision of the Constitution or any other law and because of the above nature of work entrusted to the Judiciary, the framers of the Constitution envisaged an independent Judiciary. However, I may add that the Judiciary is also Constitutionally obliged to act within the limits of its jurisdiction as delineated by the Constitution inter alia in Article 175 thereof. Clause (2) of the above Article provides that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by under any law. In this view of the matter, the relevant Constitutional provisions are to be construed in a manner that neither the Judiciary nor the Legislature transgresses its own limit and equilibrium is to be maintained inter se between the three organs of the State. However, at the same time, it should not be overlooked that our Constitution has enshrined and emphasized independence of Judiciary and, therefore, the relevant provisions are to be construed in a manner, which would ensure the independence of Judiciary.
[p. 1005]R

(b) Constitution of Pakistan (1973) Art. 5(2)

It may be observed that the judgment of this Court in the case of Ch.Zahur Ilahi, M.N.A. v. Mr. Zulfikar Ali Bhutto and others (supra) referred to hereinabove in para. 16(x) lends support to the view which I am inclined to take inasmuch as in the above case it was urged on behalf of the then Prime Minister in defence of the contempt proceedings under Article 204 of the Constitution that under Article 248, he enjoys immunity from being answerable to any Court in respect of exercise of his powers and performance of his functions as the Prime Minister and as the impugned speech was made by him in the performance of his functions as the Prime Minister, the same was immune in view of clause(1) of the aforesaid Article. The above contention was repelled by Hamoodur Rahman, C.J. by observing that “since neither the Constitution nor any law can possibly authorise him to commit a criminal act or do anything which is contrary to law, the immunity cannot extend to illegal or unconstitutional acts. Even a Prime Minister is under clause (2) of Article 5 of the Constitution, bound to obey the Constitution and law as that is the basic obligation of every citizen. The scope of the powers and functions of a Prime Minister cannot possible extend to the committing of contempt of Court which is punishable under the Constitution itself and, therefore, by necessary implication prohibited”. [p. 1019]DD

(c) Constitution of Pakistan (1973) Arts.91(4) & 65

It can be noticed that Prime Minister of the country who wields majority votes of public representatives elected to National Assembly from their respective constituencies. His functions and duties are defined in the Constitution for good governance of State and welfare of people. Whereas Leader of Opposition enjoys confidence of sizeable number of Member having different agenda than party in power. It is matter of record that incidentally since year 1988 Mian Muhammad Nawaz Sharif and Mohtrama Benazir Bhutto by rotation had the honour of being the Prime Minister of Pakistan and Leader of the Opposition in the country. However, it is disturbing that when out of power, they made reckless expressions about Judiciary merely because certain judgments otherwise lawfully passed did not suit their temperament. Press clipping of such statements are also separately subject-matter of contempt proceedings amongst the petitions under consideration. Persons attaining heights are expected to adopt culture of tolerance, more than any other citizen. When people at large place destiny of nation before chosen representative through recognized process of election, them whether exercising powers as Leader of the House or functioning as Leader of Opposition they occupy higher pedestal and become obligated for ensuring respect to each organ of the State. It is noteworthy, that by virtue of oath prescribed under Article 65 of the Constitution, every Member of Parliament undertake to perform functions honestly, to the best of ability, faithfully, in accordance with the Constitution and Rules of the Assembly and always for the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan. Members also hold themselves responsible for preserving the Islamic Ideology, besides protecting and defending the Constitution. Similarly the Prime Minister under Article 91 (4) while taking oath of office; obliges himself to the conditions specified therein, including well-being of the people, preservation of Islamic Ideology and Constitution and unambiguously assuring to protect and defend the same. If at all, facts establish that any such person had factually made indecent expressions or disparaging remarks against Judiciary or whimsically attacked conduct of Judges, same would be highly discouraging and disappointing. Nevertheless, above-referred two personalities have twice by rotation had attained most important office and status, therefore, people would genuinely expect from them respect towards each constituent organ and at least to abstain from indulging in any activity or expression affecting solidarity of the country, Islamic Ideology or independence of Judiciary.[p.1245, 1246]JJ.

It is recognized that Judiciary enjoys ultimate authority of judicial review, when Parliament at any stage endeavors to transgress its limits by infringing upon the jurisdiction of other and thereby affecting the ground norms, the basic structure or broad feature of Objectives Resolution. Subject, however, to above aspects it is true that Prime Minister as Chief Executive is obliged by various provisions of Constitution to address the nation or the Parliament for apprising them important national issues which may have possibility of any adverse effect on the smooth governance of the State. But in so doing he does not enjoy a licence for damaging or violating integrity of its constituent organs. [p. 1252]LL

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