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P L D 2005 SC 873

REFERENCE NO. 2 OF 2005 BY THE PRESIDENT OF PAKISTAN                  

Per. Iftikhar Muhammad Chaudhry, C.J.,—–

(a)        Constitution ofPakistan(1973) Article 186

It is equally important to note that once some of the Sections of a Bill have been declared unconstitutional, it would not mean that leftover Sections of the Bill have been declared in accordance with the Constitution. Their Constitutionality remains open to be questioned, which can be upheld or struck down as or when challenged before a competent forum. [p. 942] DD

(b)        Constitution ofPakistan(1973) Article 186

Admittedly, sufficient privilege is always given to the fiscal matters then to the law laid down by the Legislature, as it has been pronounced in Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 582), wherein it has been held that “Courts, while interpreting laws relating to economic activities, view the same with greater latitude than the laws relating to civil rights such as freedom of speech, religion etc., keeping in view the complexity of economic problems, which do not admit of solution through any doctrinaire of strait jacket formula. Whereas penal statutes are to be interpreted strictly against the State and liberally in favour of accused [Understanding Statutes 2d Ed. by S.M. Zafar page 243]. Therefore, following this principle, the penal statute calls for strict Constitutional scrutiny, as such the second judgment cited by the learned counsel in support of his arguments is of no help to him. Thus, it is held that the Court seized with a Reference wherein constitutionality of a law/bill is required to be examined to form an opinion, it would not be transgressing its jurisdiction and is bound to inform the President about the Constitutional status of the bill which is likely to become an Act of Parliament or Assembly. [p. 943] EE

(c)        Constitution ofPakistan(1973) Article 186

We feel no hesitation in holding that Constitution makers by using the expression ‘any question of law’ in Article 186 of the Constitution had widened its scope and had also covered disputes which are likely to arise. We may observe that if such construction is not placed on the expression ‘any question of law’ there is apprehension that the provision of advisory jurisdiction will become redundant. [p. 952] FF

(d)        Constitution ofPakistan(1973) Article 186

The President, when desires to obtain opinion of the Supreme Court on any question of law which he considers of public importance, he bears in his mind the significance of public importance, persuading him to seek opinion of Supreme Court, therefore, he being the custodian of Constitution, in capacity as a symbol of head of Federating units under the Constitution seeks guidance of the Court with no object except to avoid controversies and to ensure that Constitutional provisions are fully enforced in the good governance of Federal as well as Provincial Government as it may be, as such no embargo can be placed on the authority of the President of Pakistan to seek the advice on the question of law, which is likely to arise. Likewise, the Court is bound to express opinion in respect of those events which are likely tc occure in future. At his juncture reference to the events that took place inPakistanin December, 1971, would not be out of context, on account of whichBangladeshemerged. When confronted with such situation, a chaos was prevailing and the Government was not decisive either to recognize Bangladesh or not and to resolve the situation, it felt it necessary to move a resolution in the National Assembly which would express that holding of trials in Dacca or outside Pakistan or among the prisoners of war or civilian internees on alleged criminal charges would seriously jeopardize efforts towards reconciliation of peace in the sub-continent and would also be contrary to the International Law of Justice, therefore, considering the issue to be of public importance a Reference on the question “can a resolution of the purport described in paragraph 6 above and envisaging such Constitutional measures as may be necessary before according of formal recognition, be validly adopted by the National Assembly, was made by the President of Pakistan, Admittedly, it was purely a question which was likely to arise because till then National Assembly had not passed a resolution. [p. 952] GG

(e)        Constitution ofPakistan(1973) Article 186

Thus, above discussion leads us to conclude that President in exercise of powers under Article 186 of the Constitution is empowered to seek opinion of this Court in its advisory jurisdiction in respect of any question of law which has arisen or is likely to arise including the Bills passed by Provincial Assemblies. [p. 955] HH

(f)         Constitution ofPakistan(1973) Article 186

It has been rightly held in Ref: No. 1 of 1988 (PLD 1989 SC 75) that the President is the sole judge of the public importance to question the desirability of referring it to the Supreme Court. Therefore, the objection being without substance is kept out of consideration. [p. 957] JJ

(g)        Constitution ofPakistan(1973) Article 184, 185 & 186

It is also object to by the learned counsel, that reference is not competent because it is not inter se the parties. This Court in exercise of advisory jurisdiction under Article 186 of the Constitution, has to express its opinion on constitutionality of the Hisba Bill, therefore, presence of the parties is not called for. Advisory jurisdiction of this Court is definitely different and distinct from the jurisdiction under Articles 184 and 185 of the Constitution. [p. 957] KK

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