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PLD 1994 SC 738

(a) Constitution of Pakistan (1973), Articles 130 & 236:

Article 236(2) read with Articles 234 & 184 — Proclamation by President of Pakistan under Article 234, Constitution of Pakistan — Provision of Article 236(2) of the Constitution will not cover Proclamation by the President under Article 234 of the Constitution which is without jurisdiction, coram anon judice or mala fide — Superior Courts will have jurisdiction to examine such of Proclamation.

Clause (2) of Article 236 of the Constitution of Pakistan will not cover a Proclamation which is without jurisdiction, coram anon judice or mala fide and the superior Courts will have jurisdiction to examine a Proclamation from the above three jurisdictional legal aspects. [p. 765]C
Per Saeeduzzaman Siddiqui, J. –

In spite of the bar contained in Article 236(2) of the Constitution of Pakistan the superior 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 fide 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. 819]KK

Article 130(5) — Provincial Assembly of North West Frontier Province (Procedure and Conduct of Business) Rules, 1988, Rule 21 — Power of Speaker to adjourn the session — Limitations — Governor of the Province required the Chief Minister to obtain vote of confidence under Article 130(5) of the Constitution — Speaker of the Assembly adjourned the House for a period of 35 days — Effect — Communication of the Governor rquiring Chief Minister of the Province to obtain vote of coinfidence was sufficient to warrant re-fixing of the date for session.

The Speaker cannot at his sweet will adjourn the House for a long period if the situation otherwise requires. In the present case, though under Rule 21 of the Rules, the Speaker had the power to adjourn the session but he is supposed to exercise the same fairly and reasonably and keeping in view the nature of the business which is before the House. His action to adjourn the¬†House for a period of 35 days was not warranted by facts keeping in view the controversy which was before the House. After the receipt of the Governor’s letter in which he had required the Chief Minister of the Province to obtain vote of confidence under Article 130(5) of the Constitution, it would have been appropriate if the Speaker had refixed the date. The communication of the Governor was sufficient to warrant refixing of the date. [p. 783]J

Article 130(5) read with Article 54 — Summoning and prorogation of Assembly — Provision of Article 130(5) of the Constitution is not controlled by Article 54(3) of the Constitution and Governor of the Province is competent under ARticle 130(5) of the Constitution to require the Chief Minister of the Province to obtain a vote of confidence by fixing a
reasonable date.

Clause (5) of Article 130 of the Constitution of Pakistan is not controlled by clause (3) of Article 54 of the Constitution and the Governor was competent under the above provision to require the Chief Minister of the Province to obtain a vote of confidence by fixing a reasonable date. As a Speaker is expected to be non-partisan and to act impartially, the incumbent of the office of Governor is also expected to be non-partisan and to act justly and fairly, with the object to ensure supremacy of the Constitution and not for any extraneous consideration.[p.795]X

Article 130(5) read with Article 234 — Power of Governor to summon Provincial Assembly udner Article 130(5) is not qualified in any manner — Refusal of the Speaker to allow the Assembly to meet in pursuance of the order of the Governor and declaration of the Chief Minister that he would not seek a vote of confidence created a situation where the exercise of the Constitutional power of the Governor was being obstructed and a person who had possibly lost the confidence of the Assembly was insisting on retrurnign to the office of Chief Minister — Governor, in circumstances, had jurisdiction for advising the Federal Government that the Government of the Province could not be carried on in accordance with the provisioins of the Constitution — Prerequisite coinditiion for the issuance of the Proclamation by the President under Article 234 therfore existed.

In the present case the Governor invoked his power under Article 130(5) of the Constitution; he summoned the Provincial Assembly and required the Chief Minister to obtain a vote of confidence from the Assembly. The order of the Governor met with strong resistance and difiance both from the Chief Minister and the Speaker. They declared the ordr of the Governor “illegal”.

The Speaker put up the excuse that as the Assembly stood adjourned after being summoned on the requisition by the members, the Governor was not competent to call upon it to meet. It is difficult to support the stand taken by both these gentlemen.

The power of Goernor under Article 130(5) of the Constitution is intended for the purpose of ensuring that the Government of the Province has the support of the majority of the members of the Assembly. It is not qualified in any manner. there is no requirement that it should be exercised only when the Assembly does not stand adjourned. The view taken by the Speaker that the Governor could not call the Provincial Assembly while it stood adjourned, was clearly unsustainable and without support from any other provision of the Constitution.

The efect of the refusal of the Speaker to allow the Assembly to meet in pursuance of the order of the Governor and of the declaration of the Chief Minister that he would not seek a vote of confidence was to create a situation where the exercise of the Constitutional power of the Governor was being obstructed and a person who had possibly lost the confidence of the Assembly was insisting on returning to the Office of Chief Minister. In the circumstances, the Governor had justification for advising the Federal Government that the Government of the Province could not be carried on in accordance with the provisions of the Constitution. The President in issuing the Proclamation had acted on the report of the Governor. in the circumstances, the contention that the prerequisite condition for the issuance of the Proclamation did not exist, was without any substance. [p. 805] EE

Article 130(5) read with Articles 54 & 234 — Summoning and prorogation of Provincial Assembly by Governor and Speaker of the Assembly — Distinction — Power of the Governor to summon Provincial Assembly under article 130(5) of the Cosntitutiion is not overriden or controlled by the Provision of Article 54 of the Constitution — Failure on the part of Speaker to summon the Assembly as desired by the Governor amounted to his failure to abide by the Constitutional provision and created a Constitutional deadlock as there was no way left to ascertain whether the Chief Minister enjoyed the support of the majority of the Members in the Assembly — Recommendations of the Governor to the President to issue a Proclamation under Article 234 of the Constitution, therefore, could neither be described as illegal nor mala fide in circumstnaces.

Power to summon the Assembly under sub-clause (1) of Article 54 is exercised by the Governor only on the advice of the Chief Minister, whereas while summoning the Assembly under Article 130(5) requring the Chief Minister to seek a vote of confidence from the Assembly, the Governor has not to seek any advice of the Chief Minister. Therefore, the power of the Governor to summon the Assembly under Article 130(5) is a separate and distinct power under the Constitution independent of his power under Article 54(1). there is nothing in the language of Article 54 to suggest that the power of the Governor under Article 130(5) is overriden or controlled by the provisions of Article 54. The failure on the part of the Speaker to summon the Assembly as desired by Governor amounted to his failure to able by the
Constitutional provisions. This failue on the part of Speaker crated a Constitutional deadlock as there was no way left to ascertain whether the Chief Minister enjoyed the support of the majority of the Members in the Assembly. In these circumstances, the recommendations of the Governor to the President to issue a Proclamation under Article 234 of the Constitution could neither be described as illegal nor mala fide. [p. 841] VV

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