' QAZI FAEZ ISA, C.J.--- We propose to dispose of Constitutional Petitions Nos.170 and 186 of 2013 by this common judgment. The facts as stated by the petitioner Mr. Tariq Magsi, are that on 21st October, 2012 he wrote to the Speaker of the Balochistan Provincial Assembly (hereinafter "the Speaker") stating, that he was, an independent member of the Balochistan Provincial Assembly and that he would like to sit on the Opposition benches and requested that a seat on the Opposition benches may be allotted to him. The request submitted by the petitioner was conceded to by the Speaker who allotted him Seat No,69 on the Opposition benches, vide Notification No,PAB/Legis:I(10)/ 2008 dated 8th November, 2012, which is reproduced hereunder:- "No,PAB/Legis.1(10)/2008.--- Whereas an written request of Nawabzada Tariq Magsi, Member Provincial Assembly of Balochistan the Speaker, Balochistan Provincial Assembly has been pleased to allot Seat No,69 of opposition benches to Nawazada Tariq Magsi, with immediate effect."
' Subsequently, vide letter dated 15th November, 2012, the petitioner again wrote to the Speaker, relevant portion wherefrom is reproduced hereunder:--- "Since you are well aware that it is an anomaly which can lead to a constitutional crisis, where there is no Leader of the Opposition in the Provincial Assembly of Balochistan. In order for this anomaly to be corrected, I ask you to notify me as the Leader of Opposition in the Provincial Assembly. Your cooperation in this regard will be appreciated and will help in overcoming this constitutional lacuna."
' The Speaker accepted the request of the petitioner and issued Notification No,PAB/Legis:I(41)/2008 dated 18th December, 2012, reproduced hereunder:- "No,PAB/LEGIS;I(41)/2008/331.--- Pursuant to the Balochistan Assembly Members (Salaries and Allowance) Act, 1975 (Amended upto 16th August, 2004), Mr. Muhammad Aslam Bhootani, Speaker, Provincial Assembly of Balochistan is pleased to declare that Nawabzada Tariq Magsi, M.P.A.
(PB32-Jhal Magsi) shall be the Leader of the Opposition in the Provincial Assembly of Balochistan in terms of the aforesaid provisions, with immediate effect."
2. The method of declaration/appointment/notification of the 'Leader of the Opposition' does not find specific mention in the Constitution of the Islamic Republic of Pakistan (hereinafter "the Constitution"), however, the same has been mentioned in the Balochistan Assembly Members (Salaries and Allowances) Act, 1975, the preamble whereof states:--- "WHEREAS it is expedient to amend and consolidate the law relating to salaries, allowances and other facilities to the Members of the Provincial Assembly of Balochistan, and to provide for certain privileges to the Leader of the Opposition in the Provincial Assembly. "[emphasis added] ' Clause (d) of section 2 of the, aforesaid Act defines the 'Leader of the Opposition' to mean, "a member who, in the opinion of the Speaker, is for the time being, Leader of the majority of the members or, the majority group or the party in opposition in the Assembly." And clause (f) of section 2 stipulates that, member "does not include the Chief Minister, Minister, Speaker or Deputy Speaker".
3. That in addition to the other benefits and privileges of members of the Assembly as stipulated in the said Act the Leader of the Opposition is entitled to receive sumptuary allowance at the rate of five thousand rupees per month, an official residence or fifty thousand rupees per month as house rent allowance, an official vehicle and entitled to draw twenty five thousand rupees per month on account of petrol, oil and lubricants ("POL").
4. Mr. Hadi Shakil Ahmed, Advocate appears for the petitioner in C.P. No,170 of 2013 and Messrs Adnan Kasi and Muhammad Dawood Kasi, Advocates appear for the petitioner in C.P. No,186 of 2013. In C.P. No,170 of 2013 ("the first petition") the petitioner has assailed Notification No,PAB/Legis:I(41)/2008/595 dated 21st February, 2013, whereby the Notification dated 18th December, 2012, through which the petitioner was notified as Leader of the Opposition was withdrawn. Notification dated 21st February 2013 is reproduced hereunder:--- "No,PAB/Legis: 1(41)/2008/595.--- Pursuant to Hon'ble Speaker's following Ruling in Assembly sitting held on 20th February, 2013 the fake and ante-date notification issued on 18th December, 2012 by the then Speaker regarding nomination of Leader of opposition deems to have been treated as null and void and in consequence thereof the seat of Leader of opposition in the Balochistan Provincial Assembly stands vacant ab initio. {{URDU TEXT}} ' The first petition was filed on 2nd March, 2013 and came up for hearing on 13th March, 2013, when the operation of the said impugned notification was suspended till the next date of hearing, however, before the case was listed for hearing further developments took place which, according to learned counsel for the petitioner, necessitated the filing of CP No,186/2013 ("the second petition") since the Speaker had declared Maulana Abdul Wasey (respondent No,3 in the second petition) as the 'Leader of the Opposition' vide Notification No,PAB/Legis:I(41)/ 2008/630 dated 18th March, 2013, reproduced hereunder:- "No,PAB/Legis.1(41)/2008/630.--- In supersession of any other notification on the subject and consequent upon having support of 18 Members, the Speaker, Balochistan Provincial Assembly under provision of Section 2(d) of Members (Salaries and Allowances) Act, 1975 is pleased to declare Maulana Abdul Wasay, M.P.A. As Leader of Opposition in the Provincial Assembly of Balochistan, with immediate effect."
5. The second petition was filed on 18 March 2013, and came up for hearing before us on the same date, when we suspended the operation of the impugned notification dated 18th March, 2013, and restrained respondent No,3 from acting as the Leader of the Opposition in the Provincial Assembly of Balochistan. In view of the urgency of the matter and being cognizant of the time Schedule stipulated in Article 224A(2) of the Constitution we ordered that both the petitions be fixed for the next day (i,e, 19th March, 2013) for hearing.
6. Mr. Kamran Murtaza appeared for the Speaker in both the petitions and filed counter affidavits.
Mr. Baz Muhammad Kakar, Advocate along with Mr. Jamal Abdul Nasir, Advocate appeared for Maulana Abdul Wasay (respondent No,3 in the second petition) and filed counter affidavit on his behalf. We had also issued notice to the Attorney-General for Pakistan, however, there was no appearance on his behalf. In response to the notice issued to the Advocate General of Balochistan, Mr. Amanullah Kanrani, learned Advocate General Balochistan appeared and placed on record certain documents (through CMA No,564/2013) which he categorized as official documents.
7. The learned counsel for the petitioners state that if all the documents produced by the Speaker and Maulana Abdul Wasey be accepted, the same show that Maulana Abdul Wasey submitted his resignation as Minister on 17th March, 2013, became part of the Opposition on 18th March 2013 and was declared as the Leader of the Opposition, on the same date and that the Balochistan Provincial Assembly was also dissolved on 18th March, 2013. They stated that such actions show that the entire object was to capture the designated position of the Leader of the Opposition with the sole purpose of depriving the real Leader of the Opposition and with the further view to ensure that the caretaker Chief Minister to be appointed pursuant to Article 224 of the Constitution is a person of their choice. They next contended that the letter and the spirit of the provisions pertaining to the appointment of the caretaker Chief Minister, mentioned in Articles 224 and 224 A of the Constitution, were violated. They submitted that Maulana Abdul Wasey had enjoyed the perks, privileges and position of being an integral part of the Government of Balochistan in the capacity of minister for the entire duration of the Assembly, and was also nominated as the 'senior minister', but when the Assembly's term was nearly over he purportedly switched sides to occupy the seat of the Leader of the Opposition. They contended that Maulana Abdul Wasey was facilitated by the present Speaker Syed Matiullah Agha, who was a member of his party namely Jamiat Ulma-e-Islam (Fazal-ur-Rahman). Reference was also made to Rule 131 of the Provincial Assembly of Balochistan Rules of Procedure and Conduct of Business, 1974, which makes mention of the 'Leader of the Opposition'. They concluded by stating that the petitioner was one of the few Members of the Assembly who did not join the cabinet as a minister.
8.. Messrs Kamran Murtaza and Baz Muhammad Kakar, learned counsel, opposed the petitions and stated that this court does not have jurisdiction in view of Article 69 of the Constitution. It was next contended that the High Court does not have the power to declare who is to be the Leader of the Opposition as the said power vests in the Speaker under section 2(d) of the Act. They stated that the petitioner effectively seeks to undo the rulings of the Assembly dated 26th December, 2012, and 20th February, 2013 which had resolved that the petitioner could not be the Leader of the Opposition. It was lastly contended that the second petition was not maintainable in view of Order II, Rule 2, C.P.C., as the relief sought therein was not claimed in the first petition.
9. On the point of jurisdiction the learned Advocate General stated that a declaring and notifying the Leader of the Opposition is a ministerial/executive act of the Speaker, and not of the Assembly, and in this regard placed reliance upon the case of Muhammad Azhar Siddiqui v. Federation of Pakistan, PLD 2012 SC 774. At paragraph 35 of the judgment the Hon'ble Supreme Court held:- "A survey of the above case-law makes it abundantly clear that the ruling of the Speaker is open to judicial scrutiny by the superior Courts because it does not fall within the proceedings or conduct of business of the Parliament within the contemplation of Article 69 of the Constitution."
' Learned Advocate General also cited the example from the Province of Sindh where the Speaker of the Sindh Assembly did not appoint anyone from the members of Pakistan Muslim League (Functional), who were occupying the Opposition benches, compelling them to file a petition the High Court of Sindh at Karachi, and the High Court had directed the Speaker to nominate the Leader of the Opposition. However, in the meanwhile members of the Muttahida Quami Movement (MQM), who were till recently part of the Government of Sindh, resigned and one of their members was declared/notified to be the Leader of the Opposition. We inquired from the learned Advocate General whether the said petition has been decided by the Hon'ble Sindh High Court or whether there was any other precedent with regard to the matter before us and he answered in the negative.
10. In view of the fact that our jurisdiction has been assailed we proceed to first determine this issue and whether the determination of the declaration/appointment/nomination of Leader of the Opposition by the Speaker comes within the purview of Article 69 of the Constitution. We have carefully considered the language of Article 69 and can safely conclude that the matter of declaring/appointing/notifying/the Leader of the Opposition cannot be categorized as an act of the Provincial Assembly. Moreover, the Balochistan Assembly Members (Salaries and Allowances)
Act, 1975 states that the Leader of the Opposition is one who, in the opinion of the Speaker, is the leader of the majority of the members or the majority group in opposition in the Assembly. The Hon'ble Supreme Court in the case of Muhammad Azhar Siddiqui (supra) decided that a ruling by the Speaker is open to judicial scrutiny by the superior courts because the same does not fall within the proceedings or conduct of business of Parliament within the contemplation of Article 69 of the Constitution. As regards the contention of Mr. Kamran Murtaza that the declaration / notification of the petitioner by Mr. Muhammad Aslam Bhotani, the predecessor of the present Speaker (Syed Matiullah Agha) was struck down by the Assembly in its proceedings of 26th December, 2012 is concerned, the reference by him to the document produced by him in court which purports to be the proceedings of the Assembly of the said date do not support his contention; since all the acts of Mr. Aslam Bhotani as Speaker only with effect from 19th December, 2012 till 26th December, 2012, were cancelled. However, the Notification declaring/notifying the petitioner as the Leader of the Opposition is dated 18th December, 2012, and thus saved. It will be useful to reproduce the following from the said minutes:--- {{URDU TEXT}} ' We need not go into the question whether the Assembly was empowered to cancel the acts of the Speaker since the Notification dated 18th December, 2012, whereby the petitioner was declared to be the Leader of the Opposition remained intact. The other document relied upon by Mr. Kamran Murtaza was the Assembly's proceedings of 20th February, 2013 wherein the earlier decisions/proceedings of 26th December, 2012 were reiterated, and no reference to the Notification dated 18th December, 2012 was made.
11. That having determined that the High Court has jurisdiction in the matter we now proceed to consider the merits of the case. As regards the contention of the learned counsel for the petitioner that the second petition is hit by the provisions of Order II, Rule 2, C.P.C. In that the petitioner did not assail the Notification of 18th March, 2013, which had notified Maulana Abdul Wasey as the Leader of the Opposition;. The same does not stand to reason, since the said declaration/notification was not made or in the field when the petitioner had filed the first petition. Moreover, in the first petition the petitioner had not arrayed Maulana Abdul Wasey as a respondent, because there was no reason to do so. Therefore, the petitioner was justified to file the second petition seeking the additional relief which arose due to the subsequent cause of action. The contention that this court does not have power to declare / notify anyone as the Leader of the Opposition is correct, as we have neither done so nor intend to do so. We are concerned with the legality or illegality of the notifications declaring / notifying two different persons as the Leader of the Opposition and merely considering which of the two is legal and constitutional.
12. It is an admitted position that Maulana Abdul Wasey was a Minister in the Cabinet of Mr. Muhammad Aslam Raisani, Chief Minister of Balochistan, till he submitted his resignation on 17th March, 2013; and was purportedly nominated as the Leader of the Opposition on 18th March, 2013.
We inquired from learned counsel for Maulana Abdul Wasey as to why he had chosen to become part of the Opposition and the Leader of the Opposition and Mr. Baz Muhammad Kakar stated, that it was with view to become the Leader of the Opposition as there was no impediment to a Minister resigning and being appointed as the Leader of the Opposition, even if it happened a few days before the expiry of the term of the Assembly, since the Constitution was silent in this regard. We are afraid we cannot subscribe to this view.
13. The Opposition has an important part to play and the leader of the Opposition finds specific mention in Articles 224 and 224-A of the Constitution. The United Kingdom which has the longest functioning parliamentary system and an unwritten constitution reserves a special place for the Opposition and its Leader. In Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament (22nd edition, Butterworths, London 1997, at page 211) it states, that:- "The importance of the Opposition, in the system of parliamentary government has long received practical recognition in the procedure of Parliament. Even before the first Reform Act, the phrase 'His Majesty's Opposition', had been coined by John Cain Hobhouse. In 1937 statutory recognition was accorded through the grant of a salary to the Leader of the Opposition."
' The Leader of the Opposition in the context of the Constitution of Pakistan has come to occupy an important place. The Leader of the Opposition has a say in the appointment of the caretaker Chief Minister. In this regard proviso to sub-Article (1A) of Article 224 of the Constitution stipulates that:--- "Provided that the care-taker Prime Minister shall be appointed by the President in consultation with the Prime Minister and Leader of the Opposition in the outgoing National Assembly, and a care-taker Chief Minister shall be appointed by the Governor in consultation with the Chief Minister and the Leader of the Opposition in the outgoing Provincial Assembly: ' Provided also that the Members of the Federal and Provincial care-taker Cabinets shall be appointed on the advice of the caretaker Prime Minister or the care-taker Chief Minister, as the case may be."
' That, in case the Chief Minister and the Leader of the Opposition cannot agree within a period of three days as to who will be the caretaker Chief Minister they will submit two nominees each to a committee comprising of equal representation of the Treasury and the Opposition respectively to be nominated by the Chief Minister and the Leader of the Opposition, failing which the Election Commission of Pakistan will decide who to appoint as provided in sub-Articles (2) and (3) of Article 224A of the Constitution.
14. The object of introducing caretaker governments is to ensure against election malpractices that may be attributable to a partisan government. To ensure a viable democratic process it is necessary to ensure fair and free elections. Generally, whenever an election is held in Pakistan there are quarters that assail the transparency of the electoral process which in turn undermines the credibility of the government formed after such elections. Undoubtedly, with a view to attend to such concerns and to ensure a free, fair and transparent elections that forms, the basis of a civil democracy, the concept of care-taker government has been introduced in Pakistan through the said provisions of the Constitution.
15. That earlier too, there have been a number of caretaker governments in Pakistan; starting from when General Zia-ul-Haq appointed a caretaker cabinet under himself, which was followed by Mr. Ghulam Mustafa Jatoi's caretaker government of 1990, Mr. Balakh Sher Mazari's caretaker government of 1993, Mr. Moin Qureshi's caretaker government of 1993, Mr. Malik Mairaj Khalid's caretaker government of 1996, and Mr. Muhammad Mian Soomro's caretaker government of 2007.
Caretaker, governments in the provinces were also appointed. However, all these caretaker governments were appointed by the President in his discretion, and as such were perceived not to be independent or neutral. Therefore, the members of Senate, National Assembly and the Provincial Assemblies by consent amended the Constitution by substituting Article 224 through the Constitution (18th Amendment), Act, 2010, and further with a view to overcome any possible deadlock, by inserting Article 224A through the Constitution (20th Amendment) Act, 2012. These significant amendments to the Constitution cannot be negated by depriving the Opposition of the role that is envisaged of it, and in particular of the Leader of the Opposition in the assemblies as envisioned in Articles 224 and 224A of the Constitution. If those who are in government at a time when the tenure of the assemblies is running out resign from government merely to capture the position of the Leader of the Opposition it will effectively negate Articles 224 and 224 A of the Constitution, and thus, the will of the people of Pakistan. Needless to state that the whole purpose of consultation with the legitimate/real Opposition in the selection of the caretaker Chief Minister would be rendered illusory if such methods are resorted. To. The same would also reduce the prestige and respect due to parliamentarians, politics and democracy. In addition, the very purpose of ensuring an acceptable caretaker government would be defeated if the legitimate/true Opposition is deprived of its legitimate right; with the consequence that the credibility of parliament, the legitimacy and neutrality of the caretaker government, and the elections that are held during the tenure of such caretaker government would be seriously jeopardized.
16. Therefore, for the abovementioned reasons we declare that the declaration/notification of Maulana Abdul Wasey as the purported Leader of the Opposition, immediately after his having held the post of (senior) Minister in the Government of Balochistan and at a time when the Balochistan Provincial Assembly was about to complete its tenure, was with a view to capture the seat of the Leader of the Opposition, and as such the same is not in accordance with the Constitution of Pakistan. Notification No,PAB/Legis:I(41)/2008/630 dated 18th March, 2013 whereby Maulana Abdul Wasey was notified to be the Leader of the Opposition by the Speaker is declared to be ultra vires the Constitution, of no legal effect and void ab initio. We further uphold Notification No,PAB/Legis:I(41)/2008/331 dated 18th December, 2012 whereby Mr. Tariq Magsi was declared / notified as the Leader of the Opposition. Consequently, Notification o.PAB/Legis:I(41)/2008/595 dated 21st February, 2013 is declared to be void ab initio and of no legal effect.
' The petitions are allowed in the aforesaid terms, but with no order as to costs.