JUDGMENT NASIM HASAN SHAH, J.-On the 29th May, 1988, at about 4 P.M. The Prime Minister of Pakistan, Mr.Muhammad Khan Junejo, alongwith his party, touched down at Islamabad Airport on the completion of a foreign tour which took him to China, South Korea and the Philipines. The tour had seemingly been a success. Indeed only two days earlier on 27th May, 1988, the Filipine President, Corazon Aquino, had conferred on the Pakistani Prime Minister the Order of Sikatuna-the country's highest civil award "in recognition of his role for democracy, progress and well being of the people of Pakistan". But this opinion was apparently not shared by Pakistan's President for hardly had his Prime Minister finished speaking to the newsmen gathered at the Airport when most of them were rushed to the President's House to attend another news conference called by him.
Just as this group of journalists was settling down in their seats, the President was pleased to walk into the Conference Hall and proceeded to make the breathtaking announcement that he had decided to dissolve the National Assembly and dismiss the Federal Cabinet with immediate effect.
He then went on to read out, to the stunned newsmen, the Order he had passed in this behalf. In quick succession, the Governor of Baluchistan, on the same evening of 29th May, 1988, taking similar action dissolved the Baluchistan Provincial Assembly and dismissed the Provincial Cabinet.
The Governors of the Punjab, NWFP and Sind not to be left behind passed orders for the dissolution of the Provincial Legislatures and the Cabinets of their respective Provinces the next morning. Thus within a space of few hours the newly erected edifice of democratic institutions, raised with painstaking care and consuming years of toil and labour stood dismantled and demolished. The Order passed by the President was expressed to have been issued under Article 58(2)(b) of the Constitution and it said:- "Whereas the objects and purposes for which the National Assembly was elected have not been fulfilled;. And whereas the law and order in the country have broken down to an alarming extent resulting in tragic loss of innumerable valuable lives as well as loss of property; And whereas the life, property, honour and security of the citizens of Pakistan have been rendered totally unsafe and the integrity and ideology of Pakistan have been seriously endangered; And whereas in my opinion 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 the electorate is necessary. Now, therefore, I, General Muhammad Zia-ul- Haq, President, in exercise of the powers conferred on me by clause (2) (b) of Article 58 of the Constitution of the Islamic Republic of Pakistan hereby dissolve the National Assembly with immediate effect and in consequence thereof the Cabinet also stands dissolved forthwith. Sd/-xxxx General (M.Zia-ul-Haq) The Orders of the Provincial Governors were expressed to be undei the provisions of Article 112 (2)(b) of the Constitution and a reference to that order of Governor of the Punjab passed in this connection will suffice; the: was couched as follows:- "NOTIFICATION In exercise of the power conferred on him under clause 2(b) of Article 112 of the Constitution of the Islamic Republic of Pakistan, the Governor of the Punjab is pleased to dissolve the Provincial Assembly of the Punjab with immediate effect and in consequence thereof the Punjab Cabinet also stands dissolved forthwith. Sd/- xxxxx (Anwar Zahid) Chief Secretary"
2. These orders were challenged, though belatedly, by a Member of the National Assembly (Haji Muhammad Saifullah) and also b> some Members of the Provincial Assembly, namely, Lt.Col. (Retd) Muhammad Yamin, Sardar Zafar Abbas Syed and a few others by filing writ petitions before the Lahore High Court. These writ petitions succeeded in the sense that the orders of dissolution of the Assemblies and dismissal of the Federal and Provincial Cabinets were found to be unsustainable in law but relief, in the shape of restoration of the Assemblies and the Cabinets was not granted. Hence both sides have come to this Court, by these appeals. As observed above, the order of the President of Pakistan dissolving the National Assembly is expressed have been passed clause (2)(b) or Article 58 of the Constitution. This is to the following effect:- "58(2). Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion,----------------------- --- (a) ------------ (b) 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 the electorate is necessary". Clause (2) of Article 48, to which reference is made in clause (2) of Article 58, afore- mentioned, reads as follows:- "Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so and the validity of anything done by the President in his discretion shall and a accused in question on any ground whatsoever". According to the learned Attorney General of Pakistan if both these provisions are read together then despite the fact that Article 58(2) states that "notwithstanding anything contained in clause (2) of Article 48", the President remains empowered to dissolve the National Assembly in his discretion and the validity of the action taken by him in the exercise of the aforesiad discretionary power cannot be questioned on any ground whatsoever, as provided for under Article 48(2). This submission was not accepted by the High Court on the ground that such a contention would render nugatory the provisions of clause (2) of Article 58 which take effect "notwithstanding anything contained in clause (2) of Article 48". It, therefore, found that it was not possible to hold that the action of the President under Article 58(2)
(b) was not open to question by the Courts could and was beyond their jurisdiction. It was of the opinion that the Court question the action of the President in dissolving the National Assembly if for example, it was based on no facts at all. The Courts, it was observed, could not, in such circumstances, "stand aside and left the Constitution be flouted". It was added that "the discretion' or the formation of the 'opinion had to be based on facts and reasons which are objective realities.
The 'discretion' or formation of 'opinion' cannot be based on illusions, fancy or whim. The authority, power or discretion were not absolute". The High Court went on to observe that "if the authority, power or discretion were to be free from reason and absolute, it will partake of the Omnipotent which is impermissible to a mortal, however high he may be. If it were otherwise, the life of the representatives of the people in the National Assembly and liberty of their constituents the nation will be at the mercy, fancy or whim of the individual holding the authority for the time being. This kind of interpretation can not be made of the Constitution which provides for running of the affairs of the State by people through freely chosen representatives in a rational manner. Therefore, it is quite clear and definite that absolute, unchallengeable and unlimited power is not available to an individual however high place he may occupy". In this view of the matter, the High Court then proceeded to examine whether the grounds given by the President for exercise of his discretion for the dissolution of the National Assembly were specific and based on facts and proper reasons or whether they were general, vague and such which could be advanced at any time. Accordingly, the reasons advanced for dissolving the National Assembly were then taken up seriatim. So far as the first reason advanced in the order of dissolution namely, that the object and purpose for which the National Assembly was elected have not been fulfilled, it was found that the reason given was too wide. In this connection, the learned Chief justice of the High Court went on to observe:- "Who does not know what was the object and purpose for which Pakistan Was created? That it will be independent free democratic country in which the majority will be of Muslims and they will be enabled to lead their lives in the best traditions of Islam. Have these objects and purposes been fulfilled? Has not the country been subjugated by Martial Law or remained under its threat for a large part of its life? Have we not got more astray from Islam than before? Can anybody in his right senses say that since object and purpose of Pakistan have not been fulfilled, let it be dissolved? It would be the perversity of the highest order". It was, accordingly, held that the first ground did not hold water. Coming to the seond ground viz. "that the law and order in the country have broken down to an alarming extent resulting in tragic loss of innumerable lives as well as loss of property", it was observed that the problem of law and order was to be tackled under the Constitution by the Emergency Power provided under Part X. Moreover, it was observed by the learned Chief Justice that "the law and order problem was perennial. Only in one Province it was rather serious and the rest of the country was normal. Efforts could be made to solve the problem. For a minor disease big doze cannot be given so as to kill the patient". Coming to the third ground, namely, "the life, property, honour and security of citizens of Pakistan have been rendered totally unsafe and integrity and ideology of Pakistan have been seriously endangered", it was observed that this was patently too wide and general and could not be advanced any time.
3. Coming to the fourth and the last ground given that "public morality has deteriorated to an unprecedented level", the learned Chief Justice observed "that from times immemorial and even since before Moses it was stated that the standard of morality have gone. Over the centuries one lac twenty thousand Prophets came when standards of morality had gone down to bring them up. God has given up sending Prophets since one thousand and four hundred years and to allow the people to look after themselves. Elders of each generation have said that standards have gone down but people led their lives according to what they thought to be normal. Therefore, on such a general ground which keeps changing from generation drastic action of dissolving the highest representative legislative body cannot be upheld". It was further observed "that a perusal of the grounds mentioned above showed that these could be urged at any time for dissolving the National Assembly. Such a Draconian discretion was not envisaged by the Constitution". The learned Chief Justice went on to obseve that "only on 25th May, 1988, the President had called for the Session of the Natiional Assembly. On 29th May, 1988, just four days later, the order of dissolution of Assembly was passed.
Nothing has been indicated as to what had happened within four days and the real reasons for the action taken were not disclosed". In view of the foregoing reasons, it was found that it was not possible to sustain the order of dissolution. The learned Attorney General has criticised the above finding of the High Court and submitted that the case of the Federation is that the order of dissolution having been passed by the President in exercise of his discretion it was not open to question because by the provisions of Article 48(2), such actions of the President as were taken as in exercise of his discretionary powers were protected and immune from scrutiny. So far as the non-obstante clause namely sub-clause (2) of Article 58 is concerned, this clause, it was submitted, did not affect the discretionary nature of the power but was merely clarificatory of the main enacting section. Since in the said main enacting Section, the President is conferred the power to dissolve the National Assembly in his discretion and as this power belongs to the same class or group of matters in respect of which the President is empowered by the Constitution to act in his discretion, the validity of anything done by the President herein cannot, in view of clause (2) of Article 48, be called in question on any ground whatsoever. It appears that this contention was earlier raised by the learned Attorney General before the High Court and was examined in some detail in the judgment of Rustam S. Sidhwa, J. The learned Judge, while dealing with this contention observed, inter-alia. "...... Under Article 58(2)(b), notwithstanding anything contained in clause (2) of Article 48, the President can also dissolve the National Assembly in his discretion, where, in his opinion, 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 the electorate is necessary.
The question that arises is what do the words "notwithstanding anything contained in clause (2) of Article 48", mean? Do they take away the immunity provided in clause (2) of Article 48, or they only clarify by way of abundant caution that the power is within the general category provided in sub- clause (2) of Article 48 and therefore is subject to the immunity. It is true that a non obstante clause can create an exception, where there is a conflict between two provisions, or it may be clarificatory of the original position and introduced only by way of abundant caution. Clause (2) of Article 48 does not delineate any specific power, but referes to a general category of powers designated as discretionary, where the President acts in respect of any matter in respect of which he is empowered by the Constitution to do so. In respect of such discretionary powers, immunity from questioning their validity is provided. If the power given to the President under sub-clause (b) of clause (2) of Article 58 was intended to be within the general category provided, clause (2) of Article 48, there was no necessity to prefix the non obstante clause with this sub-clause. By adding the non obstante clause, it cannot be said that the object of the legislature was to clarify the general category and that the addition was only by way of abundant caution, so as not to limit the scope of the general category. This reasoning would apply if the two provisions relate to two specific powers. Since clause (2) of Article 48 only illustrates a general category and clause (2) of Article 58 refers to a specific power, the non obstante clause was obviously intended to create an exception to the immunity provided in clause (2) of Article 48". Before us, the learned Attorney General submitted that the High Court has not fully appreciated his contention. He has submitted that the words "notwithstanding anything contained in clause (2) of Article 48" in clause (b) of Sub- Article (2) of Article 58 arc intended to emphasise "not on the advice of the Prime Minister". The scheme of the Constitution is that the discretionary powers of the President are to be exercised not on the advice of the Prime Minister in ralation to all those matters wherein he is expressly permitted to act in his discretion. In other words, according to the Attorney General, the presence of the non obstante clause in Artcle 58(2)(b) does not curtail or abridge the discretionary powers of the President as to dissolution because nothing therein is contrary to the discretionary powers which have been conferred on him under clause (2) of Article 48, Accordingly, the President is vested with the discretionary power to dissolve the National Assembly under Article 58 (2)(b). Elaborating this submission, the learnd Attorney General argues that insofar as the advice of the Prime Minister can be overriden under clause (2) of Article 48, on a parity of reasoning when the President exercise the power of dissolution under Article 58(2)(b), not on the advice of the Prime Minister his discretion as to the circumstances in which he may dissolve the National Assembly is also unfettered. Viewed in this light, no conflict exists with regard to the nature of power which is conferred by Article 58(2)(b) and the one contemplated under clause (2) of Article 48. In both cases the power of dissolution is a discretionary power of the President, exercisable at his will. The presence of the non obstante clause does not in any way curtail the power to dissolve under Article 58(2)(b). On the other hand, the clause merely clarifies that the power being exercised hereunder is the power vesting in the President which may be exercised without the advice of the Prime Minister , in his discretion (which can be exercisable at his will, without let or hindrance). Applying the principle of harmonious construction, both the provisions namely Article 48(2) and Article 58(2)(b) can be given effect to and fully acted upon in accordance with the above scheme of the Constitution. This submission is correct so far as it goes namely that the power to dissolve the National Assembly under Article 58(2)(b) is a discretionary power of the President, which can be exercised without the advice of the Prime Minister but the real question is as to whether the said discretion is as uncontrolled as it is claimed and cannot "be called in question on any ground whatsoever" as provided for in clause (2) of Article 487 or is it a discretionary power which must be exercised reasonably, fairly and in terms of the statute and its spirits and if not so exercised, can be scrutinised through judicial review? As two view points can be entertained on this point we can legitimately refer-to the history of the legislation and the debates held in the National Assembly in connection with the Constitution (Eighth Amendment) Act, 1985, leading to the adoption of Articles 48 & 58 in their present form. It has already been held by this Court in Benazir Bhutto Vs. Federation of Pakistan & another (PLD 1988 S.C. 416) that assistance can be taken from the debates of the National Assembly in aid of the construction of a statute. In that case in order to ascertain the true import of Article 270-A the progress of the Bill (NA.Bill No.13 of 1985) from its introduction till its final adoption as the Constitution (Eighth Amendment) Act, 1985, was taken into account in order to properly construe it.
It was observed in that case "that the Courts in Pakistan, India and United States have taken a broader view on the question whether the proceedings of the Parliament can be referred to for interpreting the provisions of an Act passed by it and have often referred to the proceedings of the Legislature when the words of the statute were ambiguous as an aid to construction of the statute for discovering the real intention of the law-makers". (See page 564 of the Report) Coming to the history of the legislation we note that in the Revival of the Constitution Order 1985 (President's Order 14 of 1985) the provisions of Article 48 and Article 58 were radically modified in comparison to the earlier provisions contained in the 1973-Constitution. The provisions sought to be introduced by the Revival of the Constitution Order were couched thus:- "1973 Constitution (As amended by RCO) 48.
President to act on advice, etc. (1) In the excrcisge of his functions, the President shall act in accordance with the advice of the Cabinet, the Prime Minister, or appropriate Minister: Provided that the President may require the Cabinet to reconsider or consider such advice, as the case may be, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration or consideration. (2) Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so. (3) If any question arises whether any matter is or is not a matter in respect of which the President is by the Constitution empowered to act in his discretion, the decision of the President in his discretion shall be final, and validity of any thing done by the President shall not be called in question on the ground that he ought not to have acted his discretion. (4) The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister or Minister of State shall not be inquired into in, or by any Court, Tribunal or other authority. (5) Where the President dissolves the National Assembly, he shall, in his discretion,- (a) appoint a date, not later than one hundred days from the date of the dissolution, for the holding of a general election to the Assembly; and (b) appoint a care-taker Cabinet. (6) If, at any time, the President, in his discretion or on the advice of the Prime Minister, considers that it is desirable that any matter of national importance should be referred to a referendum, the President may cause the matter to be referred to a referendum in the form of a question that is capable of being answered either by "Yes" or "No". (7) An act of Majilis-e-Shoora (Parliament) may lay down the procedure for the holding of a referendum and the compiling and consolidation of the result of a referendum." 58." Dissolution of National Assembly (1) The President shall dissolve the National Assembly if so advised by the Prime Minister and the National Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the Prime Minister has so advised. Explanation.-Reference in this Article to "Prime Minister" shall not be construed to include reference to a Prime Minister against whom a resolution for a vote of no confidence has been moved in the National Assembly but has not been voted upon or against whom such a resolution has been passed or who is continuing in office after his resignation or after the dissolution of the National Assembly. (2) The President may dissolve the National Assembly in his discretion where, in his opinion, an appeal to the electorate is necessary."
4. A perusal of the above provisions show that very wide powers were conferred on the President. This gave rise to the strong criticism both inside and outside the National Assembly. Accordingly, an attempt was made to curtail the amplitude of these powers in the Constitution (Eighth Amendment) Bill, 1985. The speeeches made in the National Assembly are a testimony to these efforts. Thus, in the course of the National Assembly of Pakistan Debates on 15th October, 1985 the Law Minister while discussing the amendment moved in Article 58 observed - "As far as the second clause is concerned, the earlier clause (2) of Article 58 of the Constitution reads - "The President may also dissolve the National Assembly in his discretion where in his opinion an appeal to the electorate in necessary".
Sir, we thought that these are too much powers of the President and he may in his own wisdom decide to dissolve the Assembly and the Assembly stands dissolved. As a prccuation and to check against the arbitrary powers of the President, the amendment proposed by the amending Bill, we have plead certain restrictions on the President for taking decision whether Assembly is to be dissolved or not " (Official Report - Vol.IV- dated 15th October, 1985 at page 3362) Somewhat later, the Law Minister against reverted to this subject and said - "Sir, where the President was authorised in his own wisdom to dissolve the Assembly as is realised by the existing clause (2) of Article 58 hearin, we have placed a check on the President that Where the conditions as realised in 1977. In that case, when the machinery of the Federation is totally blocked and it becomes absolutely impossible for the Federal Government to function, in that case, the President will dissolve the Assembly and also hold the elections within the stipulated period of 90 days. It is.Not enough that President dissolve the Assembly but the President is bound by this clause of the Constitution to hold the election within the 90 days. So, I feel, Sir that by placing these checks on this clause now the President has no arbitrary powers to dissolve the Assembly." #tbs "The President may also dissolve the National Assembly in his discretion where in his opinion an appeal to the electorate is necessary" #the 'The President may also dissolve the National Assembly in his discretion where in his opinion 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 of the National Assembly in accordance with the provisions of the Constitution, 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 the electorate is necessary". A perusal of these debates clearly shows that clause (2) of Article 48 which provides that "notwithstanding anything contained in clause (1) the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so and the validity of anything done bv the President in his discretion shall not be called in question on any ground whatsoever" was intended to be curtailed and cut down by the non obstante clause contained in Sub-Article (2) of Article 58 which begins with the words "Notwithstanding anything contained in clause (2) of Article 48" and goes on to say, "the President may also dissolve the National Assembly in his discretion where in his opinion- (a) ....... (b) a situation has arisen in which the Government cannot be carried on in accordance with the provisions of the Constitution and an appeal to electorate is necessary". Thus notwithstanding the addition of the words "and the validity of anything done by the President in his discretion shall not be called in question on any ground whatever" after the words "Notwithstahding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so" in clause (2) of Article 48 of the Constitution, the provisions of Article 58(2), as finally adopted by the Parliament in the Constitution (Eighth Amendment) Act, 1985, had the effect of placing some limits on the otherwise absolute powers of the President. Article 48(3), which made the President the sole judge of the validity of his discretion, was omitted. Article 58 was simultaneously altered and besides providing for the non obstante clause, the substantive part of clause (2) of Article 58 was also modified and the substituted clause now provided that the National Assembly could be dissolved only when a situation arose in which the Government of the Federation could not be carried on in accordance with the Constitution and an appeal to the electorate was necessary. While explaining these changes on the floor of the National Assembly the Prime Minister and the Justice Minister, as already noted, stated in categorical terms that these changes were intended to curtail the powers of the President. He (the President), they explained, would still be vested with the powers to dissolve the National Assembly but this would be a limited power exercisable only when the conditions set out in the amended clause were met. 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 out in accordance with the provisions of the Constitution. True enough, it is within the discretion of the President to determine whether these conditions are met or not but this discretion has to be exercised in terms of the words and spirit of the Constitutional provision. "According to his discretfon", as explained, relying on Maxwell, in M.Abdul Majid Vs. The West Pakistan Province and two others (PLD 1956 Lahore 615), means: "according to the rules of reason and justice, not private opinion, according to law and not humour, it is to be not arbitrary, vague and fanciful, but legal and regular, to be exercised, not capriciously but on judicial grounds and for substantial reasons and it must be exercised within the limits to which an ltonest man competent in the discharge of his office ought to confine himself i.e. Within the limits and for the objects intended by the Legislature". The discretion conferred by Article 58(2)
(b) of the Constitution on the President cannot, therefore, be regarded to be an absolute one, but is to be deemed to be a qualified one, in the sense that it is circumscribed by the object of law that confers it.
5. It must further be noted that the reading of the provisions of Articles 48(2) and 58(2) shows that the President has to first form his opinion, objectively and then, it is open to him to exercise his discretion one way or the other, i.e. Either to dissolve the Assembly or to decline to dissolve it. Even if some immunity envisaged by Article 48(2) is available to the action taken under Article 58(2) that can possibly be only in relation to the exercise of his 'discretion' but not in relation to his 'opinion'. An obligation is cast on the President by the aforesaid constitutional provision that before exercising his discretion he has to form his 'opinion' that a situation of the kind envisaged in Article 58(2)(b) has arisen which necessitates the grave step of dissolving the National Assembly.
In Abdul Ala Maudoodi Vs. Government of West Pakistan (PLD 1964 S.C. 673) Cornelius C.J. While interpreting certain provisions of the Criminal Law Amendment Act 1908, construed the word 'opinion' as under: "............ It is a duty of Provincial Government to take into consideration and a circumstances. That imports the exercise of an honest judgment as to the existence of conditions in which alone the opinion may be formed, consequent upon which the opinion must be formed honestly, that the restriction is necessary. In this process, the only element which I find to possess a subjective quality as against objective determination, is the final formation of opinion that the action proposed is necessary. Even this is determined, for the most part, by the existence of circumstances compelling the conclusion. The scope for exercise of personal discretion is extremely limited. ................................................................ As I have pointed out, if the section be construed in a comprehensive manner, the requirement of an honest opinion based upon the ascertainment of certain matters which are entirely within the grasp and appreciation of the governmental agency is clearly a pre-requisite to the exercise of the power. In the period of foreign rule, such an argument, i.e. That the opinion of the person exercising authority is absolute may have at times prevailed, but under autonomous rule, where those who exercise power in the State are themselves citizens of the same State, it can hardly be tolerated." Thus, though the President can make his own assessm ent of the situation as to the course of action to be followed but his opinion must be founded on some matcrfal. Lnj.He present case, the President himself chose to state the grounds on which he was basing his action. As the grounds have been disclosed their validity can be examined. The first four grounds stated in the order for dissolution were, as already noticed, extraneous having no nexus with the pre-conditions prescribed by Article 58(2)(b) of the Constitution empowering the President to dissolve the National Assembly in his discretion. As for the fifth and last ground namely that "a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution" nothing was shown either before the High Court or before us that the machinery of the Government of the Federation had come to a standstill or such a breakdown had occurred therein which was preventing the orderly functioning of the Constitution. Indeed, it appears that the first four mentioned grounds arc the basis for the assertion made in the last-mentioned ground that the Government could not be carried on in accordance with the provisions of the Constitution. But as observed already all the first-mentioned four grounds were extraneous to and had no nexus with the pre-conditions prescribed by Article 58(2)(b). Hence, in the eyes of law, no basis existed on which the President could form the opinion "that a situation had arisen in which the Government of Pakistan cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary". But unless the President be of the said "opinion", he cannot pass an order of dissolution even in exercise of his discretion because under sub-clause (b) of clause (2) of Article 58 his 'opinion' in this behalf is a condition precedent to the exercise of the discretion. Thus, if it can be shown that no grounds existed on the basis of which an honest opinion could be formed, the exercise of the power would be unconstitutional and open to correcttion through judicial review (see Ghulam Jilani Vs. Government of West Pakistan - PLD 1967 S.C. 373 at page 393). The circumstance that the impugned action has political overtones cannot prevent the Court from interfering therewith, if it is shown that the action taken is violative of the Constitution. The superior Courts have an inherent duty, together with the appurtenant power in any case coming before them, to ascertain and enforce the provisions of the Constitution and as this duty is derivable from the express provisions of the Constitution itself the Court will not be deterred from performing its constitutional duty, merely because the action impugned has political implications: (see Mr.Fazlul Quader Chowdhry and others Vs. Mr. Muhammad Abdul Haque - PLD 1963 S.C. 486 at page 504).
The High Court was, therefore, right in proceeding to examine the validity of the order of dissolution passed by the President on 29th May, 1988, with a view to seeing whether it fell within the four corners of Article 58(2)(b) of the Constitution and holding that the pre-requisites prescribed for the exercise of the power conferred by Article 58(2)(b) did not exist, in finding that the said action was not justified in law. Turning now to the question whether the constitutional provisions relating to the consequential action to follow the order of dissolution of the National Assembly have or have not been disregarded, it will be relevant to examine the provisions of Article 48(5). This reads:- "48(5).
Where the President dissolves the National Assembly, he shall, in his discretion, (a) appoint a date, not later than ninety days from the date of the dissolution, for the holding of a general election to the Assembly; and (b) appoint a care-taker Cabinet." Taking first the matter of appointment of the date of elections it will be seen that whereas the National Assembly was dissolved on 29.5.1988, the President did not simultaneously appoint a date for the holding of the general elections with the order of dissolution but took nearly two months thereafter, to do so. It was only on the 20th July, 1988 that he announced, that the general elections will be held on the 16th of November, 1988. Thus a date, long after the expiry of 90 days from the date of the dissolution of the National Assembly was appointed. Could this be done? It was submitted that sufficient justification existed for not appointing a date for the general elections before the expiry of 90 days from the dale of dissolution namely that the Parliament had failed to enact a law for allocation of the seals in the National Assembly to each Province, the Federally Administered Tribal Areas and the Federal Capital on the basis of the population in accordance with the last preceding officially published census (i.e. The census of 1981) as required by Articles 51(3) & 222 of the Constitution and since the delimitation of the constituencies by the Election Commission could be done only after such law was promulgated which process could not be completed within 90 days hence the earliest possible dale thereafter was fixed within which the constitutional requirement in this regard could be complied with. It is correct that the law which was required to be enacted by Article 51(3) had not been promulgated before the dissolution of the National Assembly and that this was done for the first time on 20th July, 1988 by issuance of an Ordinance entitled the "Delimitation of Constituencies (Amendment) Ordinance, 1988" and the date of 16th November, 1988 appointed for the General ELeclions on the same day. This dale (16th November, 1988), it is submitted, was fixed after consulting the Election Commission - which had to delimit the constituencies, given the election schedule and make arrangements for organising the country-wide general elections. In the above circumstances, the dale appointed namely the 16th November, 1988, for holding of the general elections, which undoubtedly was a date falling outside the contemplated period of 90 days from the dale of dissolution, is excusable. Coming to the question of the appointment of care-taker Cabinet, which the President is required to appoint under Article 48(5), when he dissolves the National Assembly it is to. Be observed that the care-taker Cabinet was appointed on 9.6.1988.
However, this was done without appointing any Prime Minister to head it. Now clause (1) of Article 91 of the Constitution lays down that - "There shall be Cabinet of Ministers, with the Prime Minister at its head, to aid and advise the President in the exercise of his functions". Again, it is provided in clause (8) of Article 91 that - "Nothing contained in this Article shall be construed as disqualifying the Prime Minister or any other Minister or a Minister of Stale for continuing in office during any period during which the National Assembly stands dissolved, or as preventing the appointment of any person as Prime Minister or other Minister or as Minister of State during any such period." A reference to the oath prescribed under clause (2) of Article 92 for Federal Ministers under the Third Schedule to the Constitution relating to secrecy, is also instructive in this context, lt provides that a Minister "will not directly or indirectly communicate or reveal to any person any secret official information which is brought under his consideration or becomes known to him as Federal Minister unless specially permitted in this behalf by the Prime Minister" indicating the importance attached by the Constitution to the office of the Prime Minister amongst the Cabinet of Ministers. It appears that the word "Prime-Minister" was substituted by the word "President" in the Oaths subscribed to by the members of the care-taker Cabinet. But this was not possible without amendment of the Constitution in accordance with the procedure prescribed in Articles 238 and 239 of the Constitution.
6. The reference to the provisions of the Constitution made above shows that the office of the Prime Minister is necessary at all times for running the affairs of the country and that he should have been appointed to head a care-taker Cabinet. Coming to the Order of Dissolution of the Punjab Legislative Assembly, this was passed by the Governor of the Punjab purportedly in exercise of the powers conferred on him by Article 112(2)(b). This provision reads:- "11212')(bV- The Governor may also dissolve the Provincial Assembly in his discretion, but subject to the previous approval of the President, where, in his opinion,- (a) v...... v............... (b) a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary". The High Court found that there was nothing to show that the Governoi ordered the dissolution of the Provincial Assembly after obtaining the previous approval of the President. Nor was there anything at all on the record to show that a situation had arisen in the Province of the Punjab wherein the Government of that Province could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary. Hence, the order of dissolution passed by the Governor too was not sustainable in law. We are inclined to agree. This brings us to the question of relief. The High Court refused to grant relief and in doing so, inter-alia, observed:- "Since the order dissolving the National Assembly and the four Provincial Assemblies are ultra vires and unconstitutional, the petitioners are entitled to a writ of Mandamus restraining the respondents from preventing them from performing the functions of their offices and to a declaration that such of the respondents who presently hold Ministerial offices and listed posts be treated as having not been constitutionally appointed and as having no authority under the law to hold such posts, notwithstanding the short delay of three months that has occurred in the filing of their writ petitions. However, certain other factors which have intervened and which deserve to be taken note of prevent me from granting these reliefs. Amongst these circumstances may be mentioned the decision of Mr. Muhammad Khan Junejo, the former Prime Minister, in accepting the action of the President and the Governors and declaring the decision of his party i.e. The Pakistan Muslim League, to go to the Polls and seek the mandate of the people. In this connection, the statement made by the former Prime Minister appearing in the Pakistan Times news-paper of 18th July, 1988, may be referred. Further, soon after the dissolution of the Assemblies, the Pakistan Muslim League got broken up into two parts, with some Ministers and members, both at the Centre and the Provinces, supporting Mr.Muhammad Khan Junejo, the former Prime Minister and some Ministers and Members, both at the Centre and the Provinces, supporting Mr. Fida Muhammad Khan (the head of other faction of the Muslim League). In these circumstances, it cannot be said that the previous majority parties at the Centre and the Provinces still command the majority of the votes of the members in the Centre and the Provinces. If the reliefs are granted, the National and the Provincial Assemblies would be beset with major problems and conflict. Still further, on 20th July, 1988, the late President ordered that the general elections would be held on 16th November, 1988, which fact has been further confirmed in public statements by Mr.Ghulam Ishaq Khan, the present President and the Election Commission of Pakistan has taken serious steps to hold the general elections and in pursuance thereof has delimited constituencies and will soon finish the job of hearing appeals therefrom. The entire administrative machinery of the Federation and the Provinces is geared up to hold the general elections on 16th November 1988, and the people, who previously were not in a position to vote for candidates belonging to certain political parties which had been banned, are now ready and impatient to exercise their vote freely and voluntarily without any restrictions. Taking all circumstances into consideration, the discretionary jurisdiction of the Court under Article 199 of the Constitution does not permit me to grant the reliefs as prayed. I do not, therefore, propose to grant any relief." This part of the order of the High Court is contested by Haji Muhammad Saifullah, as well as Raja Muhammad Afsar (Appellant in Civil Appeal No. 316 of 1988). Sardarzada Zafar Abbas Syed and his co-petitioner (in Civil Petition No.392-R of 1988) and Lt. Col. (Retd.) Muhammad Yameen (petitioner in Civil Petition No.393-R of 1988). It is urged that the duty of the Courts is to ascertain the legal position, declare it and allow the law to take its course.
After having found that the action of dissolution of the Assemblies was not sustainable in law, the Court cannot and should not deny the consequential relief and that heavens will not fall, by following and giving effect to the plain words of the law. The last-mentioned submission appears to be based on the maxim "Fiat Justice, ruat coelum - Let justice be done, though the heavens should fall". Perhaps it is not known that this maxim was first used to excuse the most outrageous injustice and that it can lead to bizarre results if it is strictly adhered to. The maxim comes from a story told by Seneca (Dialogues, III, 18) - "Piso sentenced a soldier to death for the murder of Gaius.
He ordered a centurion to execute the sentence. When the soldier was about to be executed, Gaius came forward himself alive and well. The centurion reported it to Piso. He sentenced all three to death; the soldier because he had already been sentenced; the centurion for disobeying orders; and Gaius for being the cause of the death of two innocent men. Piso excused himself by enunciating the maxim Fiat iustitia. Ruat coelum i.e. Let justice be done, though the heavens should fall". We would prefer to take the first part of the maxim - "Fiat justitia (Let justice be done) - and discard the rest namely "ruat coelum" (though the heavens should fall) because justice should be done, in such a manner that the heavens should not fall. In the short order passed by this Court while disposing of these matters on 5th October, 1988, it was observed that we agreed with the view expressed by the Lahore High Court that the grounds contained in the President's Order dated 29th May, 1988, dissolving the National Assembly and dismissing the Federal Cabinet had no nexus with the pre-conditions prescribed by Article 58(2)(b) of the Constitution empowering him to dissolve the National Assembly in his discretion; but were not inclined to grant the reliefs to restore the National Assembly and re-instate the dissolved Federal Cabinet despite this finding. The reasons for so doing were stated thus: "But we arc not unmindful of the fact that the whole nation is geared up for elections and we do not propose to do anything which makes confusion worst confounded and creates a greater state of chaos which would be the result if the vital process of elections is interrupted at this juncture. The Courts always keep in view the higher interest of Pakistan while resolving matters of national importance in accordance with the Constitution and law. National interests must take precedence over private interest and individual rights. The forthcoming elections are at hand and the people of Pakistan must be allowed to choose their representatives for the National Assembly on party basis, a right which is guaranteed to them under the Constitution. The writ jurisdiction is discretionary in nature and even if the Court finds that a party has a good case, it may refrain from giving him the relief if greater harm is likely to be caused thereby than the one sought to be remedied. It is well settled that individual interest must be subordinated to the collective good. Therefore, we refrain from granting consequential reliefs, inter-alia. The restoration of the National Assembly and the dissolved Federal Cabinet."
7. It is true that the concept of "national interests taking precedence over rights of the individuals" which has been given effect to by us is a somewhat indefinite concept and the decision of this Court to deny the relief in exercise of its discretionary jurisdiction on its basis, therefore, requires some elaboration. Granted that the concept of "national interests taking precedence over individual rights" is an indefinite concept and that it can mean different things to different persons but in the instant case no such ambiguity existed because it was quite clear that the national interest would be better served by a recourse to the electorate than by the restoration of the existing Assemblies provided, of course, the holding of the elections on a very early date was ensured. The bane of our society has been that elections have not been held with any degree of regularity after reasonable intervals. An overwhelming majority in the country was strongly of the opinion and a clear national consensus existed to the effect that the political malaise in the country could be solved only by holding national general elections, wherein all the political parties were allowed to participate. In conformity with this national consensus, and the unambiguously expressed wish of all the political parties of Pakistan and every section of the people there was no difficulty in coming to the conclusion that an appeal to the electorate rather than restoration of the existing Assemblies, ensuring at the same time that the dates already fixed in this behalf namely the 16th November, 1988, for the National Assembly and 19th November, 1988, for the Provincial Assemblies were adhered to; was the proper course to be followed and that this was in the collective good. In exercise of the discretionary writ jurisdiction it was not, therefore, considered appropriate to set aside the aforementioned part of the order of the President whereby the dates for holding of fresh general elections were specified. On the other hand, to ensure compliance therewith and to see that elections are actually held on these dates, the said dates were made a binding part of the Court's judgment itself. Accordingly, in our short order, passed at the conclusion of the hearing it was said:- #tbs on 5th October, 1988. Sd/- Muhammad Haleem C.J. Sd/- Aslam Riaz hussain J.
Sd/- Muhammad Afzal Zullah J. Sd/- Dr.Nasim Hasan Shah J. Sd/- Abdul Kadir Shaikh J. #the "We, however, emphasise that the general elections scheduled for the 16th and the 19th November, 1988, shall be held on the said dates and an opportunity be thus afforded to the people of Pakistan to choose their own representatives in a free, fair and impartial election. Accordingly, these appeals stand disposed of in the above terms". Herein above, are the full reasons for the order passed by this Court SHAFIUR RAHMAN, J.--I have had the privilege and the benefit of going through the draft judgment prepared by my learned brother Dr Justice Nasim Hasan Shah. The events immediately preceding the institution of the Constitution Petitions in the High Court, out of which these appeals have arisen, have been narrated in detail. I have considered it proper to record my views on the legal and the constitutional issues arising therefrom separately. #tbs Sd/- Shaflur Rahman J. (I have added a separate note on the subject) Sd/- Javid Iqbal J. Sd/- Ghulam Mujaddid J. Sd/-Saad Saood Jan J. Sd/-S.Usman A.I Shah J. (I had agreed with Mr..J. Shaflur Rahman) Sd/- A.I Hussain Qazilbash J. Sd/- Naimuddin J. CA.No.314 to 317. C.P.392 & 393- R/88. #the Haji Muhammad Saifullah Khan, the appellant member of the dissolved National Assembly and earlier a Minister of the Federal Government, had prayed for the following reliefs in his petition:- "It is, therefore, respectfully prayed that this Honourable Court may be pleased to: i) Declare the so-called dissolution of the National Assembly of Pakistan by the President on 29-5-1988 is wholly without lawful authority and that the said National Assembly still exists in the eyes of Constitution and law; ii) That the Cabinet headed by Mr.Muhammad Khan Junejo as the Prime Minister is constitutionally still in existence and the petitioner continues to be a Federal Minister; iii) All the steps taken, appointments made laws framed including the issuance of the Ordinance by the President after 29-5-1988 are without lawful authority; iv) That persons purporting to hold the Office as Ministers, Attorney General etc. Have not been constitutionally appointed as such and they have no authority in law to act as Ministers and Attorney- General. v) Without prejudice to above and in the alternative the Respondents No. 1 and 2 be directed to fulfill their obligations with regard to the appointment of Prime Minister and that all actions should be taken in accordance with advice of the Prime Minister and his Cabinet to be constituted in accordance with the provisions of the Constitution. Any other relief which this Honourable Court deems fit and proper may also be granted." Raja Muhammad Afsar Khan also a member of the dissolved National Assembly in his Petition made an identical prayer. Sardarzada Zafar Abbas Syed and two others, all members of Punjab Provincial Assembly made the following prayers in their petition:- "It is, therefore, respectfully prayed that it may Kindly be declared that the order dated May 30, 1988, of the Governor of the Punjab Province dissolving thereby the Provincial Assembly of the Punjab with immediate effect under Article 112 (2) (b) of the Constitution is arbitrary, malafide, unconstitutional, void, inoperative, without lawful authority and of no legal effect, and that the Punjab Assembly with the petitioners as its members is legally and constitutionally still in existence. It is further prayed that the impugned order dated May 30, 1988, be quashed and directions be issued to the respondents restraining them i) from hindering the Provincial Assembly of the Punjab to function in accordance with the Constitution. Ii) from doing any act or passing any order or issuing any direction which may impede performance of any duty or exercise of any right or power under the Constitution by the said Assembly or the petitioners as its members, and iii) from holding fresh election to the said Assembly. Lt. Col (Retd) Muhammad Yamin, a member of the Punjab Provincial Assembly in his separate petition prayed as hereunder:- "....This Honourable Court may graciously be pleased to grant to the petitioner the following reliefs: - (i) that the impugned Notification of the Government of the Punjab dated 30-5-1988 dissolving the Provincial Assembly of the Punjab and the Punjab Cabinet may be declared to be without lawful authority and of no legal effect; (ii) that this Honourable Court may be pleased to hold that since the impugned Notification and the action and orders of the respondents are devoid of legal effect, the Provincial Assembly of the Punjab continues to exist in the eyes of law and thus entitled to perform all functions and exercise all jurisdictions, powers and authority; (iii) that this Court may grant such other relief being in consonance with the acceptance and success of this petition as it may consider appropriate; (iv) that the Respondent No. 1 be burdened with costs."
8. In resisting these petitions the Federation pleaded that the order dated 29-5-88 " has been fully acted upon, and the present petition is misconceived, mala-fide and not maintainable in view of the provisions of the Constitution".
Further it was contended that "the order having been passed in excccise of discretionary power expressly conferred by the provisions of the Constitution, on the President, the same is valid, and cannot be called in question on any ground whatsoever in accordance with clause (2) of Article 48 of the Constitution". On merits the plea taken was that in the opinion of the President " a situation had arisen in which the Government of the Federation could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary of which he is the sole judge" and that " an appeal to the electorate is envisaged under the Constitution and the holding of General Elections on 16-11-1988 in the country as mentioned hereafter is a Constitutional step which the Petitioner hereby seeks to impede. In such case the concept of judicial restraint is even otherwise well known". Objections on the grounds of laches, acquiscence and disentitlement of the petitioners to seek discretionary relief were also taken. Finally it was stated that " In case and without prejudice to the above submissions and in the alternative it is respectfully submitted that in the cricumstances, all acts done, actions taken, appointments made and laws including Ordinances promulgated by the President on and after 29-5-1988 todate are and shall continue to be legal and valid and are deemed to be so by virtue of the de-facto doctrine and cannot be called in question. In the leading judgment recorded by the learned Chief Justice on the question of the jurisdiction of the Court and its extent to examine and review judicially the exercise of constitutional power possessed by the President under Article 58 (2) (b) of the Constitution, the following findings were recorded:- i) "Whether it is 'subjective' or objective' satisfaction of the President or it is his 'discretion' or 'opinion', this much is quite clear that the President cannot exercise his powers under the Constitution on wish or whim. He has to have facts, circumstances which can lead a person of his status of form an intelligent opinion requiring exercise of discretion of such a grave nature that the representatives of the people who are primarily entrusted with the duty of running the affairs of the State are removed with a stroke of the pen. His action must appear to be called for and justifiable under the Constitution if challenged in Court of Law." ii)
Blanket coverage of validity and unquestionability of discretion under Article 48 (2) was given up when it was provided under Article 58 (2) that "Notwithstanding clause (2) of Article 48"-, the discretion can be exercised in the given circumstances. Specific provision will govern the situation." iii) "Courts' power whenever intended to be excluded is expressly stated, otherwise it is presumed to be there in Courts of record. No express exclusion of Courts' jurisdiction is provided in respect of the matter in hand. Therefore, it is not possible to hold that the action of the President under Article 58
(2) (b) is beyound the authority of the Courts entrusted with the duty of interpreting and enforcing the Constitution." iv) "The 'discretion' and formation of the 'opinion', of course, are 'subjective', yet these have to be based on facts and reasons which are objectives rclitics. The 'discretion' or fromation of 'opinion' cannot be based on illusions, fancy or whim." On the merits of the Order of dissolution the learned Chief Justice of the High Court recorded the following findings:- i) "The first reason advanced for dissolving the National Assembly is that " the objects and purposes for which the National Assembly was elected have not been fulfilled."............. After hearing the contentions of the learned counsel, we have come to the conclusion that the reason given is too wide." ii) "The second ground is that "the law and order in the country have broken down to an alarming extent resulting in tragic loss of innumerable lives as well as loss of property." Firstly, law and order problem is to be tackled under the Constitution by Emergency power provided under Part X.
Secondly, the law and order problem is perennial. Only in one Province it was rather serious. Rest of the country was normal. Efforts could be mric to solve the problem." iii) 'The third ground gi.Ort is "the life, property, honour and security of citizens of Pakistan have been rendered totally unsafe and integrity and ideology of Pakistan have been seriously endangered:. It is patently too wide and general. It can be advanced any time." iv) "The fourth and the last ground gives was that " public morality has deteriorated to an unprecedented level"................... On such a general ground keeps changing from generation to generation drastic action of dissolving the highest representative legislative body cannot be upheld." v) "The Governor in his order of dissolution has given no reasons at all, exccot a bald statement that the " situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution." As regards the other constitutional violations alleged in the petitions the learned Chief Justice of High Court held as follows:- i) "it would appear to be that the office of Prime Minister is necessary for running the affairs of the State at all times." ii) "Alteration in the oath was not permissible except through amendemt of the Constitution which could only be made through the National Assembly." iii "Caretaker Cabinets have to confine themselves to take care of the day to day administration of the State. They can lake all decisions requiring attention or action, may be having far-reaching effects, like in respect of war and peace of earthquake or floods." As regards the relief to be granted to the petitioners, the learned Chief Justice noted the following facts:- i) "With no declaration the dead" (dissolved Assembly) "can come to life." ii) 'The Assembly was elected by avoiding political parties from participation in the process of election." iii) "All were demanding fresh election". Iv) "No responsible person challenged the action, neither the leader of the house nor its Speaker. The latter's support of the petitions is too belated." v) "The entire nation is looking forward to the ensuing elections, including the members of the dissolved assemblies." ' vi) "the petitioners are not acting bona-fide in pursuing the legal remedy. They are after political gains and they cannot hope to make courts their instruments." The learned Chief Justice on the basis of the preceding findings of fact and law observed as follows as regards the relief: - "In exercise of discretionary jurisdiction under Article 199(1) (b) (ii) of the Constitution we pass no order as the matter can be set right sooner or later and to avoid any confusion, crisis or collapse. Restraint is part of judicial discretion."
All the petitiones were disposed of "subject to what has been said above.". Another learned Judge (Mr Justice Rustam S. Sidhwa) recorded his separate reasons for coming to the same conclusions and while on the question of relief to be granted took note of two additional factors. These being: - i) "the decision of Mr. Muhammad Khan Junejo. The former Prime Minister, in accepting the action of the President and the Governors and declaring the decision of his party i.e. The Pakistan Muslin* League, to go to the Polls and seek the mandate of the people." ii) "Further, soon after the dissolution of the Assemblies, the Pakistan Muslim League got broken up into two parts, with some Ministers and members, both at the Center and the Provinces, supporting Mr.Muhammad Khan Junejo, the former Prime Minister and some Ministers and Members, both at the Centre and the Provinces, supporting Mr. Fida Muhammad Khan. In these circumstances, it cannot be said that the previous majority parties at the Center and the Provinces still command the majority of the votes of the Members in the Center and the Provinces." About the entitlement of the appellants to the relief the learned Judge observed as hcreunder:- "Since the order dissolving the National Assembly and the four Provincial Assemblies are ultra vires and unconstitutional, the petitioners are entitled to a writ of Mandamus restraining the respondents from preventing them from performing the functions of their offices and to a declaration that such of the respondents who presently hold Ministerial offices and listed posts be treated as having not been costitutionally appointed and as having no authority under the law to hold such posts, notwithstanding the short delay of three months that has occurred in the filing of their writ petitions." Finally, the learned Judge concluded as hereunder:- "Taking all circumstances into consideration, the discretionary jurisdiction of the Court under Article 199 of the Constitution does not permit me to grant the relief as prayed. I do not, therefore, propose to grant any relief." i) "With no declaration the dead"(dissolved Assembly ) "can come to life." ii) "The Assembly was elected by avoiding political parties from participation in the process of election." iii) "All were demanding fresh election". Iv) "No responsible person challenged the action, neither the leader of the house nor its Speaker. The latter's support of the Petitions is too belated." v) "The entire nation is looking forward to the ensuing elections, including the members of the dissolved assemblies." vi) "the petitioners are not acting bona-fide in pursuing the legal remedy. They are after political gains and , they cannot hope to make courts their instruments." 9.
The learned Chief Justice on the basis of the preceding findings of fact and law observed as follows as regards the relief:- "In exericse of discretionary jurisdiction under Article 199 (1) (b) (ii) of the Constitution we pass no order as the matter can be set right sooner or later and to avoid any confusion, crisis or collapse. Restraint is part of judicial discretion." All the petitions were disposed of "subject to what has been said above.". Another learned Judge (Mr. Justice Rustam S. Sidhwa) recorded his separate reasons for coming to the same conclusions and while on the question of relief to be granted took npte of two additional factors. These being: - The third learned Judge (Mr Justice Muhammad Afzal Lone) on the question of relief concluded as follows:- "Notwithstanding the illegality of the impugned orders and the constitutional problems stating at our face, I am constrained to refuse not only the revival of the assemblies but also the cabinets, and leave it to the posterity to adjudge the wisdom of this refusal. But let it be firmly understood that it is not because the dissolution of the assenblies has become a fait accompli or that there is no instance of their revival that their restoration is declined. Even if there is no precedent as to the revival of a dissolved Assembly but the national interest demands so, this Court shall not hesitate to discharge its obligations."
10. Another learned Judge (Mr Justice Gul Zarin Kiani) on the role and powers of a Caretaker Government recorded a dissent in the following words:- "But an extraordinary situation like the present, in my opinion, calls for a care-taker Government and therefore, the respondent No. 1 and his council of Ministers can only carry on day-to-day administration in office which are necessary for carrying on "for making alternative arrangements". In effect the President, in my opinion is therefore, not obliged to accept the advice that the respondent No. 1 and his Council of Minister tender to him except for day-to-day administration and the Council of Ministers and the respondent No. 1 should not make any decisons which are necessary except for the purpose of carrying on the administration untill other arrangements are made. This in effect means that any decision or policy decision or any matter which can await disposal by the Council of Ministers responsible to the House of People must not be tendered by the respondent number 1 and his Council of Ministers. With this limitation the respondent No.1 and the Counsel of Ministers can only function. And in case whether such advice Is necessary to cary on the day*to- dayadministration till other arrangements are made" or beyond that, the President, in my opinion, is free to judge. It is true again that this gives the President powers which have not been expressly conferred by the Constitution. But, in my opinion, having regard to the basic principle behind this Constitution under Article 75 (3) read with Article 74 (1), in the peculiar facts and circumstances of this case is the only legitimate, legal and workable conclusion that can be made. Beyound this statement, I do not propose to go further." Another dissent recorded by the same learned judge is as follows:- "I have already indicated my reasons for holding that it would be highly improper for the Court to issue a Rule at this stage. Though I have a suspicion that the application lacks seriousness. I do not want to venture so far as to say that the application is not bona fide. It is unnecessary. But I am quite satisfied that it is belated............... I am not inclined to entertain the plea of laches, delay etc for ordering dismissal outright." While considering the relief to be granted the learned Judge noted the following additional fact:- "Dissolved assemblies were product of partyless elections. Some of the political parties having some following boycotted the elections and remained out of arena." and held that:- "despite unsustainability of the impugned orders dissolving the Assemblies, interference is declined and no writ or direction can issue." This judgment of the High Court has aggrieved both the parties, the Federation and the Province, in so far as findings of blatant, pervasive and continued violations of the Constitutional provisions have been attributed to the President and the Governor. It has aggrieved the writ petitioners as well in so far as Judges of a Court under solemn oath to discharge their duties and perform their functions in accordance with the Constitution and the law, and further, to preserve, protect and defend the Constitution have after holding that blatant and manifest violations of the Constitution have taken place and are continuing to take place, provided no redress, taken no steps to correct the wrong or remedy the evil. The findings on all questions of law, being in favour of the writ petitioners, their constitutional petitions could not, according to them, be held to be malafide. The learned Attorney General in support of the appeal contended that the power conferred on the President under Article 48(b) of the Constitution ("a situation has arisen in which the Government of the Federation cannot be carried on in accordnnce with the provisions of the Constitution and an appeal to the electorate is necessary"), is not by its very nature justiciable in Court of law, that it depends for its exercise on the subjective satisfaction of the President, as appearing to him from the material available and before him. This Court will not ordinarily sit in appeal over such a matter. He has likened this power and the controversy arising out of it to a Political Question, which in the Constitutional jurisdiction has been considered to be outside the pale of judicial review. In the alternative the learned Attorney General contended that the material placed before the High Court for justifying the action taken by the President was sufficient in the ordinary course to satisfy even the judicial mind about the legality and the propriety of the action taken. Finally, the submission of the leamed Attorney General was that in any case the members of the National and Provincial Assemblies has no vested right to enjoy the full term of office as members and, in any case, an appeal to the electorate, the political sovereign has been made and the people or the electorate is the final arbiter in such a dispute.
With regard to the controversy being one in the nature of a Political question, the leamed Attorney General referred to an identical provision contained in the Indian Constitution [Article 356 (f)] to the effect that" If the President...Is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may issue proclamation". This provision came up before the Indian Supreme Court in the case of State of Rajasthan Vs. Union of India (AIR 1977 S.C. 1361) and was commented upon as hereunder:- The choice between a dissolution and re-election or a retention of the same membership of the legislature or the Government for a certain period could be matters of political expediency and strategy under a democratic system......... If the Union Government thinks that the circumstances of the situation demand that the State Government must seek a fresh mandate to justify their moral rights in the eyes of the people to continue to exercise power in the interests of their electors, or else the discontent of the masses may have its repercussion not only on the law and order sitution but will also affect legal responsibilities or duties which the Union Govt, has towards a particular State or towards Indian citizens in general, all of whom live in some State or other, can we 'say that resort to art. 356 of the Constitution is not called for? I think that it is impossible to substitute our judgment for that of the Union Government on such a matter." The learned Attorney General next referred to the decision in K.K. Aboo vs. Union of India and others (AIR 1965 Kerala 229), in which it was held that:- "The President who is integral part of the Parliament (Vide Article 79) may not be the executive head but the constitutional head of India. If that be the correct view, a challenge of his proclamation behind his back cannot be heard in a Court of law. Perhaps the inevitable consequence of such a view may be to hold that it is not open to the Courts to question the validity of a Proclamation under Article 356. Even otherwise, if the promulgation of a Proclamation under Article 356 is a matter of personal satisfaction of the President who is not personally amenable to the Court's jurisdiction, the same result would follow. The only sanctions against a capricious act on the part of the President would then be what the Constitution itself has provided; namely, an impeachment under Article 61 or the non-approval of his action under clause 3 of Article 356." The next decision referred to by him is Rao Birinder Singh versus The Union of India and others (AIR 1968 Punjab Haryana 441) in which it was held that:- "The President having issued the Proclamation pursuant to his constitutional power under Article 356 and it not being an executive act of the Union, and the President not being amenable to the jurisdiction of this Court in view of sub- Art. (1) of Art. 361, this Court cannot go into the validity or legality or propriety of his Proclamation. He cannor be present in Court and in his absence his proclamation is not open'to consideration by this Court, not even the relevancy of the recital as to his satisfaction. None of the grounds urged by the learned counsel for the petitioner can later this position. If there is any substance in those grounds, those would be the basis for a debate in both the Houses of Parliament on the question of approval or otherwise of the proclamation. Secondly, the reconsideration of the Proclamation has specifically been vested by the Constitution in Parliament and that, in my opinion, excludes the jurisdiction in this Court in so far as the Proclamation is concerned in that respect.Nothing has been said against the power of Parliament to approve or to withhold approval of the proclamation. There is not even a suggestion that Parliament has done, anything beyond its constitutional powers. It is a constitutional power and it is a power which, as I have said, excludes the jurisdiction of this Court to consider any aspect of the Proclamation of the president having been expressly left by the Constitution within the sphere of powers of Parliament. So this argument on the side of the Petitioner that the Proclamation of the President is justiciable in any aspect does not prevail either."
10. Another decision referred to by the learned Attorney General is in the matter of A. Sreeramulu versus (AIR 1974 Andhra Pradesh 106) where it was held that;- "It is necessary to know the character of the power exercised by the President under Article 356 of the Constitution, It has been pointed out by the Supreme Court in Javantilal Amralal v. F. N. Rana. (AIR 1964 S.C. 648) and Sardari Lai v.
Union of India (AIR 1971 SC 1547) that the power under Article 356 is not a power of the Union Government but that it is a power specially vested in the President by the Constitution and in regard to which the satisfaction is the personal satisfaction of the President." ' Finally the learned Attorney General referred to the decision in Biiavnanda Patnaik and others versus President of India and others (AIR 1974 Orissa 52) in which it was held that:- "The satisfaction of the President is integrally connected with the question of enforcing the convention on the Governor's failure to call the leader of the Opposition to form the Ministry. The convention being not enforceable, the satisfaction based on a decision whether to honour the convention or not, is equally uneforceable."
According to the learned Attorney General the exercise of such a power as is contained in Article 58 (2) (b) cannot be tested in Court on judicially discoverable and manageable standards and will rather take the Court into a political Thicket. As regards the alternative contention the learned Attorney General has referred us to the recitals in the orders themselves by which the National and Provincial Assemblies were dissolved. They enumerate all the events and factors which necessitated the action and also the conclusion at which the President had objectively arrived before passing that order. A pointed reference was made to the mandate given to General Muhammad Zia-Ul- Haque by the people of Pakistan m the referendum held on the nineteenth of December, 1984 to usher in and complete the process of Islamization in the country. It was argued that such a mandate coupled with Article 2-A becoming a substantive part of the Constitution necessarily implied and conferred on General Muhammad Ziaul Haq, as President of Pakistan, a power transcending the various Constitutional provisions, coupled with a duty to achieve that end.
If the National Assembly faltered in Keeping pace with him in achieving this object, or intended its attain inevitably the conclusion could objectively and reasonably be drawn that" the objects and purposes for which the National Assembly was elected have not been fulfilledc.That the National Assembly both falterd and failed, according to the learned Attorney General, was obvious from the fact that the Constitution Ninth Amendment Bill directed at enforcing Sharia in the country was lying unattended in the National Assembly and the President had to make a reference to it in strong words in his address to the Joint session of the Parliament (Annex R/2-D page 25) on 7th April, 1988. Hereunder is reproduced the more relevant portion:- According to the learned Attorney General, the second ground for dissolving the National Assembly given out in the Presidential Order was that "the law and order in the country have broken down to an alarming extent resulting in tragic loss of innumerable valuable lives as well as loss of property". This was fully borne out from the contemporaneous events. Besides, like the first ground it was put across by the President without mincing, words, in the same joint session of Parliament in the following words:- The third ground by the President for dissolving the National Assembly was that ' the life, property, honour and security of the citizens of Pakistan have been rendered totally unsafe and the integrity and ideology of Pakistan have been seriously endangered. This ground also, according to the learned Attorney General was disclosed in great detail to the National Assembly and through it to the nation in the same address on 7th April, 1988 in the following words (the more relevant Portion):- The fourth and the last ground given was that 'public morality has deteriorated to unprecedented level". According to the learned Attorney General the specific instances and details of it were provided to the National Assembly in the same address to the two houses of Parliament in words that follow;- " "r=J zjl/t3& 11. According to the learned Attorney General these grounds, as well as the opininon formed on them had all an objective background. Their detailed disclosure had taken place in the Parliament and through it and the media to the nation over a month and a half before the dissolution order was passed. When it was felt by the President that the gravity of the situation remained unheeded and unattended and that the matters were being allowed to drift and deteriorate that the extreme and the unusual step of dissolving the National Assembly was taken.
Even the outgoing Prime Minister was then satisfied of its Constitutionality and publicly expressed it (Ex.R/2-G). An appeal to the electorate has been made, the dates for the elections have been notified all arrangements are being made to satisfy the requirement of the Constitution and the law. According to the learned Attorney General it is established principle of constitutional law that once an appeal to the Political Sovereign has been made there remains no occasion for striking down the dissolution order, for restoring the National Assembly or for recognizing the rights of the elected members so as to transcend the dissolution order. As regards the delay in observing the Constitutionally prescribed time schedule of ninety days for the holding of the elections the learned Attorney General considered that the dissolved Assembly was entirely responsible for it. According to him Article 51 required that the "seats in the National Assembly shall be allocated in accordance with the last preceding census officially published." Article 222 empowers the National Assembly to provide by law the allocation of seats in the National Assembly as required by clause (3) and (4) of Article 51. The Election Commission had drawn the attention of the Federal Government as early as December 1987 to this requirement and the necessity under Article 222 of framing a law on the Delimitation of the constituencies but that was not done. The precondition for the election remained unsatisfied till then. Additionally, the leamed Attorney General contended that Article 254 takes good care of such delays in observing the time schedule and the mere delay does not invalidate the action, if otherwise valid. The leamed Attorney General further contended that the express mention of Prime Minister While providing for the Cabinet in Article 90. And the intentional omission of the mention of Prime Minister while providing for a caretaker cabinet in Article 48 (5)
(b) must be noted, given due effect by keeping intact the difference intended and provided for. The result, according to him, will be that in the normal course of events the cabinet will be headed by a Prime Minister but in the case of a caretaker cabinet, which is provisional, limited to the interregnum, a Prime Minister may not necassarily be required, lt follows therefore that the mere absence of a Prime Minister from a Caretaker Cabinet will not be violative of any constitutional provision nor will the acts of the caretaker cabinet rendered invalid by the absence of the so to say a caretaker Prime Minister. The learned Attorney General had nothing to say on the question of alteration effected without a constitutional mandate in the oath of the Ministers by substituting the expression Prime Minister by President in the concluding portion of the oath prescribed in the Third Schedule of the Constitution for the Federal Minister of State. Coming now to the merits of the submissions made the Indian decisions referred to by the learned Attorney General for ousting Judicial Review have two distinguishing features which are material for our purposes. The first is that Atride 356(5) of the Indian Constitution, at that time read as hereunder: "Notwithstanding anything contained in this Constitution, the satisfaction of the President in clause (1) shall be final and conclusive and shall not be questioned in any Court on any ground" and this was interpreted by the Indian Supreme Court in State of Raiasthan Vs. Union of India (AIR 1977 Supreme Court 1361 at 1377), as hereunder:- "In so far as Art. 356(1) may embrace matters of political and executive policy and expediency courts cannot interfere with these unless and until it is shown what constituional provision the President is going to contravene or has contravened on admitted grounds of action under Art. 356(1) for, while Art. 74(2) disables Courts from inquiring into the very existence or nature or contents of ministerial advice to the President, Article 356(5) makes it impossible for Courts to question the President's satisfaction" on any ground". Hence, Courts can only determine the validity of the action on whatever may remain for them to consider on what are admitted, on behalf of the President, to be grounds of Presidential satisfaction." The second factor to be noted about the Indian dedsins is that with the deletion or substitution of this clause(5) of Article 356, the view of the Indian Supreme Court on the subject changed materially. In the case of A.K. Rov (AIR 1982 S.C. 710,). The Court held as follows in para 27:- " The Rajasthan case (AIR 1977 S.C.
1361) is often cited as an authority for the proposition that the Courts ought not to enter the "political thicket." It has to be borne in mind that at the time when that case was decided, Article 356 contained Clause (5) which was inserted by the 38th Amendment, by which the satisfaction of the President mentioned in Clause (1) was made final and conclusive and that satisfaction was not open to be questioned in any Court on any ground. Clause (5) has been deleted by the 44th Amendment and, therefore, any observations made in the Rajasthan case on the basis of that clause cannot any longer hold good. It is arguable that the 44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President's satisfaction." The doctrine of political question has its roots in American Constitutional system ordaining separation of Powers. Its rational and purpose finds mention in the following words in the third Volume of Encyclopedia of American Constitution at page 1422:- "The political question device derives its legitimacy from the necessity to preserve an independent Judiciary in, the American political system. The device is justifiable because it enables the judiciary to maintain its independence by withdrawing from no-win situations. In addition, it prevents the courts from usurping the role of the ballot box. The Supreme Court, declaring the presence of a political question, tacitly admits that it can not find and therefore cannot ratify a social consensus that does not violate basic American beliefs. The Court has no moral right to impose rules upon a country not yet ready for them. The political question doctrine, which permits the Court to restrain itself from precipitating impossible situations that might tear the social fabric, gives the electorate and its representatives time to work out their own rules, which can ultimately be translated into constitutional doctrine through judicial decision. The doctrine of political questions is more than a self-saving mechanism for the Court; it is also an affirmation of a governmental system based on popular sovereignty. Edward McWhinney in his book 'Supreme Courts and Judicial Law- Making: Constitutional Tribnuals and Constitutional Review* has the following comment to make on this subject (Page 113): "The contours and reach of the doctrine of 'political question' are not clear, though its consequences are: once they have decided a particular problem brought before them is a 'political question', the Courts will not intervene. The category has developed piecemeal, on a case by case basis, with little serious attempt at an overarching conceptualisation or synthesis. As we have seen, most great constitutional controversies are also political ones. The rule of judicial non-intervention seems to have emerged experientially, as a rule of judicial prudence, for fear of getting one's fingers burned. On the other hand, as we will see, the category itself and its list of non- justiciable, non- judicially reviewable constitutional -governmental actions has tended to contract in more recent years as judicial expertise and judicial confidence have increased, and also as the judges have come increasingly to accept that in relation to certain basic community problems, it is either a matter of the judges' intervening or else of no one intervening, with the result that grave constitutional abuses will remain unsolved. In practical terms, the category of ' political question' has seemed, in the past, to involve the three main groups of problems: problems going to the Grundnorm or ultimate source of legal authority in the state; intra- Governmental, inter- institutional conflicts- what, in German terms, is classified as Organstreitigkeiten; and finally, electoral questions. Only the first of these three groups of problems would seem to be capable of argument as so intrinsically political as to be necessarily non-legal and non- justiciable: the argument, so far as it goes, would maintain that issues of the nature and survival of the state are absolute ones and properly beyond the competence of Courts. The second of the three, intra- Governmental, inter- institutional conflicts, raise separation-of-powers issues above all, and the Court's non-intervention is predicated upon the obligation of deference and self restraint vis-a-vis other, coordinate institutions of Government. The last of the three, electoral questions, were traditionally (and wrongly, it may be suggested) considered as involving technical problems beyond the ability of judges to comprehend or their expertise to resolve in useful ways." In America, were this-doctrine has flourished, after reviewing the decisions in this area in Charles W. Baker Vs. Joe C. Carr (7L.Ed, 2d 663)the U.S.Supreme Court concluded that on the surface of any case held to involve a political question was at least one of the following formulations: "Prominent on the surface of any case held to involve a political question is found a tcxtually demonstrable constitutional! Commitment of the issue to a co-ordinate political department, or a lack of judicially discoverable and manageable standard for resolving it, or the impossibility of deciding without an initital policy determination of a kind clearly for non-judicial discretion, or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due to a co-ordinate branches of government, or an unusual need for unquestioning adherence to a political decision already made, or the potentiality of embarrassment from multifarious pronouncements by various departments on one question; unless one of these formulations is inextricable from the case, there should be no dismissal for non-justiciability on the ground of the presence of a political question." In the case of Adam Clavton Powell versus John W. McCormack (23 L. Ed. 2d 491) this doctrine was limited further toTiold that " the Political question consideration is now one on the merits rather than a decision not to decide." f l2. As all constitutional question turn on whether power has been exceeded or abused, the judicial process is eminently suited to the ascertainment of relevant facts and the application of the law, or the Constitution to the facts so ascertained. The jurisdiction of the Court may be excluded by the Constitution iteslf and the following are the instances of such exclusions in our Constitution:- i) "The validity of the election of the President shall not be called in question by or before any court or other authority" [Article 41 (6)]. Ii) "Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so and the validity of anything done by the President in his discretion shall hot be called in question any ground whatsoever." [Article 48 (2)] iii) 'The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister or Minister of State shall not be inquired into in, or by, any court, tribunal or other authority". [Article 48 (4)J iv) "(l)The validity of any proceedings in Majlis-e-Shoora (Parliament) shall not be called in question on the ground of any irregularity of procedure. (2) No officer or member of Majlis-e-Shoora (Parliament) in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in Majlis-e-Shoora (Parliament), shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers". [Article 69(1) & (2)].' v)
'The validity of any Proclamation issued or Order made under this Part shall not be called in question in any court."[Article 236(2)]. Vi) "All proclamations.......... Are hereby declared to have been Validly made by competent authority and shall not be called in question in any Court on any ground whatsoever." [Article 269 (1)]. "All orders made............. Be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court on any ground whatsoever". [Article 269 (2)]: vii) Notwithstanding a judgment of any court, a law made by Majlis- e-Shoora (Parliament) under clause (1) shall not be questioned in any court on any ground, whatsoever." [Article 270 (2) "Notwithstanding the provisions of clause (1), and a judgment of any court to the contrary, for a period of two years from the commencing day, the validity of all such instruments as are referred to in clause (1) shall not be called in question before any court on any ground whatsoever." [Article 270(3)]. "All orders made........ Shall not be called in question before any court on any ground, whatsoever. [Article 270 (4)]. Viii) "The proclamation........ Shall not be called in question in any Court on any ground whatso-ever". [Article 270A (1)]. "All Orders made....... Shall not be called in question in any Court on any ground whatso-ever."[Article 270 A(2)]. Ix) "The proclamation of Emergency............ Shall not be called in question in any Court on the ground of inconsistency with any of the rights conferrred by Chapter I and Part II., (Article 280.). The power reserved for the President in Article 58 (2) (b) of the Constitution in the following words is the subject matter of examination in this Court:- "58(1)....................................... (2) Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion- (a) (b) 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 the electorate is necessary." There is no express ouster clause in the Constitution with regard to the exercise of this power by the President. Whatever ouster could be implied by the use of the expressions " in his discretion" and"in his opinion" stands removed by the use of non- obstante clause " notwithstanding", thereby excluding the application of ouster clause contained in Article 48 (2) excluding Courts ' jurisdiction generally where the powers reserved for the President to be exercised in his discretion are concerned. Additionally the existence of jurisdictional facts capable of judicial ascertainment and adjudication was made a pre-condition for the exercise of this power. Not to test the exercise of this power by referennee to these constitutionally prescribed jursidictional facts, namely- i) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution; and ii) an appeal to the electorate is necessary; whould in fact amount to a failure to discharge a duty ordained by the Constitution itself. The expression "cannot be carried on"sandwitched as it is between "Federal Governemnt" and "in accordance with the provisions of the Constitution", acquires a very potent, a very positive and a very concrete content. Nothing has been left to surmises, likes or dislikes, opinion or view. It does not concern itself with the pace of the progress, the shade of the quality or the degree of the performance or the quantum of the achievement. It concerns itself with the breakdown of the Constitutianal mechanism, a statement, a deadlock in ensuring the observance of the provisions of the Constitution. The historical perspective in which such a provision found a place in our Constitution reinforces this interpretation. Whilloughby commenting on the United States Constitutional Law (Vol. I) observes as hereunder:- * "the possession by the courts of the right to determine, in last resort, not only their own constitutional powers but those of the other organs of government, must be established, if established at all, by the intentions of those who framed and adopted the Constitution which serves as the fundamental instrument of government.
If this intention is not clearly declared, one way or the other, the force of the words that are empolyed must be interpreted in the light of pertinent extrinsic evidence, such as the discussions attending the drafting and adoption of the Constitution, and the general understanding of the people as shown in their previous and contempora- ^ as practice in the premises................................................................... When it is necessary and proper to resort to extrinsic evidence in interpreting the Constitution, an important source of such evidence is to be found in the history of the events which led up to its adoption. Of special importance are the recorded proceedings of the convention which drafted, of the State conventions which ratified, and of the public utterances of the men who played an influential part in the establishment of, the Constitution. Resort is to be had, however, to these sources only with caution, and only where latent ambiguities are to be resolved. Cooley has stated in a manner not to be improved upon the weight properly to be ascribed to debates in conventions. He says: "When the inquiry is directed to ascertaining the mischief designed to be remedied, or the purpose sought to be accomplished by a particular provision, it may be proper to examiner the proceedings of the convention which framed the instrument. Where the proceedings clearly point out the purpose of the provision, the aid will be valuable and satisfactory." Recently, in the case of Benazir Bhutto (PLD 1988 S.C. 416) it was held that:- "Courts in Pakistan, India and the United States have taken a broader view and have often referred to the proceedings of the legislature when the words of the Statute were ambiguous as an aid to construction of a statute for discovering the real intention of the lawmakers." The then Law Minister contemporaneously explained the purpose and object of the amendment resulting in the provision before us. He said- "We have placed a check on the President that where the condition as I have submitted many a time in the Hon'ble House, these conditions as realized in 1977. In that case, when the machinery of the Federation is totally blocked and it becomes absolutely impossible for the Federal Government to func on in that case, the President will dissolve the Assembly."
13. In the context of our Constitution Scheme the object and purposes of the election and the existence of the National Assembly could not be limited or made synonymous with the mendate which brought late General Muhammad Zialul Haq into Office as President of Pakistan, which Office he was oplained by Article 41(7) of the Constitution to hold for five years "Notwithstanding anything contained in this Article, or Article 43 or any other Article of the Constitution or any other law." National Assembly has a Charter of its own, an existence distinct and separate, and its utility, efficacy, representative character, success, or fialure could be judged not by any best or opinion outside the provisions of the Constitution but by reference to the provisions of the Constitution itself. Therefore we are unable to endorse the view of the leamed Attorney General that the National Assembly had to earn its existence and continuance by maintaining such a pace and progress on the question of Iscamization as could satisfy the late President. Article 2-A of the Constitution does not demand or prescribe a time schedule. The very first reason given in the impugned Order, viz, "the objects and purposes for which the National Assembly was elected have not been fulfilled" was misconceived, vague and was not available to the President for dissolving the National Assembly. The second reason given is that .' the law and order in the country have broken down to an alarming extent resulting in tragic loss of innumerable valuable lives as well as loss of property'. It has been attended to in the judgment of the High Court.
The learned Chief Justice observed "Firstly, law and order problem is to be tackled under the Constitution by Emergency Powers provided under Part X. Secondly, the law and order Problem is Perennial. Only in one Province it was rather serious. Rest of the country was normal". Another learned Judge (Rustam S.Sidhwa, J.) observed that " Grounds (ii) and (iii) relate to law and order, which is a Provincial subject. The National Assembly has no power to legislate on it." These grounds arc also extraneous to the conditions laid down in sub-clause(b). Law and Order is indeed the responsibility of the Provincial Governments. Transfer of this responsibility to the National Assembly could take place under the Orders of the President under Article 234 (1) (b) of the Constitution.
Without such transfer of functions, the responsibility for the breakdown of law and order was laid, by no other authority than the President himself at the wrong door. This ground in the circumstances is wholly extraneous to the power exercised. The third ground that "the life, property, honour and security of the citizens of Pakistan have been rendered totally unsafe and the integrity and the ideology of Pakistan have been seriously endangered" is directly linked with the second ground and independently of the second ground there is nothing else to sustain it. The fourth ground given is that "publicmorality has deteriorated to unprecedented level". It has no nexus at all with the pequirement that " a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution:. It is an established principle of law that an Order which is based on reasons of fact which do not exist must be held to be infected with an abuse of power. The impugned order of the President dissolving the National Assembly is therefore, unsustainable, and was rightly held to be so. Another breach of the Constitutional provision was non-compliance with clause (5) (a) of Article 48 and clause (2) of Article 224 of the Constitution. The date of election had to be fixed and the election held within ninety days of the dissolution of the National Assembly which was not done. The failure of the dissolved National Assm bly to promulgate the necessary Delimitation law as required by Article 222 and Article 51 may explain the delay but cannot condone it. The President after dissolving the National Assembly on 29th day of May, 1988 promulgated the required Delimitation of Constituencies (Amendment) Ordinance 1988 (Ordinance IV of 1988) on the 21st July, 1988. Where ninety days was the period prescribed for holding the election the delay of over fifty days in promulgating the Delimitation Ordinance would appear to be unreasonable, inexcusable, and unwarranted. Similarly, fixation of the date of election beyound ninety days of the dissolution and even from the date of announcement of the date of election was in breach of constitutional rquirement. Yet another breach of constitutional provision was the noncompliance with the requirement of clause (5) (b) of Article 48. It requires the appointment of a Caretaker Cabinet immediately 0n dissolution of the National Asssembly. The Cabinet has been descrined in clause
(1) of Article 91 of the Constitution as hereunder:- "There shall be a Cabinet of Ministers, with the Prime Minister at its head, to aid and advise the President in the exercise of his functions." Clause.
(8) of Article 91 provides as follows:- "Nothing contained in this Article shall be construed as disqualifying the Prime Minister or any other Minister or a Minister of State for continuing in office during any period during which the National Assembly stands dissolved, or as preventing the appointment of any person as Prime Minister or other Minister or as Minister of State during any such period." Clause (2) of Article 92 provides as hereunder:- "Before entering upon office, a Federal Minister or Minister of State shall make before the President oath in the form set out in the Third Schedule." The relevant portion of the Oath of Federal Minister or a Minister of State Prescribed in Third Schedule of the Constitution reads as hereunder:- "I,-------- ,do solemnly swear that I will bear true faith and allegiance to Pakistan: That, as Federal Minister (or Minister of State); I will discharge my duties,........................ As Federal Minister (or Minister of State), or as may be specially permitted by the Prime Minister. May Allah Almighty help and guide me(A'meen)." In this background the Constitution does not visualise a care-taker Cabinet without a Prime Minister. The absence of Prime Minister from a Caretaker Cabinet alters for the period under discussion the very Character of the Constitution from a Parliamentary democracy to a Presidential system of Government. The Courts can neither countenance nor condone all this at this stage and in these proceedings. Such violations and breaches concern the very essential features of the Constitution.
What are the legal consequences on individual acts done, or actions alreay taken and suffered, we are leaving it to be decided in individual cases, more appropriately brought before us. Finally, the breach concerning the alteration in the Oath of Minister. The learned Attorney General had no explanation for it. We do not find any mention of it even on the record. What has been accomplished by an unwritten executive fiat amounts to a material amendment of the Constitutional provision which could not be accomplished without recourse to Provisions of Part XI of the Constitution.
14. The findings of the High Court are therefore, affirmed on all the controvertial questions. Next is the question as to what relief should or can be granted in the circumstances. This question requires an equally detailed examination on our part. Article 199 of the Constitution under which all the petitions giving rise to these appeals were filed in the High Court, provides inter alia for a Declaration, a Prohibitory Order, a Mandatory Order, and an order in the nature of quo-warranto.
The reliefs claimed by the petitioners in the High Court which-have already been reporduced in extenso show that they claimed all these reliefs. The jurisdiction possessed by the High Court in such matters under Article 199 is discretionary and it has repeatedly been held to be so.For example, as regards the declaratory relief, the following statement of law is found in Halsbury's Laws of England 4th Edition, (Volume I) at page 174:- The power to make a declaratory judgment is discretionary, the discretion should be exercised with due care and caution, and judcially, with regard to all the circumstances of the case, and, except in special circumstances should not be exercised unless all parties interested are before the court. It will not be exercised where the relief claimed would be unlawful or unconstitutional, or inequitable for the court to grant, or contrary to the accepted principles upon which the court exercises its jurisdiction. The court will not make a declaratory judgment where the question raised is purely academic, or the declaration would be useless or embarrassing, or where an adequate alternative remedy is available, such as an action for damages, and it will be slow to make a declaration as to future or reversionary rights; a declaration that a person is not liable in an existing or possible action is one that will rarely be made, although it is not beyond the power of the Court in a very exceptional case to make such a declaration." The same statement of law is to be found in 62 Harvard Law Review at page 805 in the words that follow: - "Although the requirements of justiciability and jurisdiction are met, it dose not follow that a court will automatically issue a declaration, for in many cases discretion to dismiss the action exists. This power to with-hold declaratory relief is generally granted either expressly or impliedly by statute. Whether a court may proprely exercise such discretion in a particular case is becoming increasingly predictable, as the factors influencing its exercise become more clearly defined." In 26 Corpus Juris Secundum, the following statement of Law is to be found at page 70:- "There is a distinction between the jurisdiction of a court to grant declaratory relief and the exercise of discretion pursuant to that jurisdiction. So it is generally a matter within the judicial discretion of the court as to whether or not jurisdiction to enter or decline to enter such a judgment or decree will be taken and exercised in any particular case, or as to whether or not it will award all the relief sought, and this is the rule although the statute does not, in specific terms, declare that its application rests in the discretion of the court." As regards prohibitory orders the following statements of law appears in 73 Corpus Juris Secudum page 18: "While a writ of prohibition may go as a matter of right were the absence of jurisdiction is plain and application is made in proper time by a party who has no other adequate remedy and has not lost his right thereto by misconduct or laches ordinarily it is granted, not as a writ of right, but as one of sound discretion to be granted or withheld by the court exercising supervisory control according to the nature and circumstances of each particular case. This is particularly true where the existence or absence of jurisdiction of the court whose action is sought to be prohibited is in doubt, or depends on facts which are not made matter of record; or where a stranger applies for the writ; or where want of jurisdiction of the inferior court does not appear on the face of the proceedings and the application for prohibition is not made until after judgment or verdict in that court. Prohibition, it has been said, is not favored by the courts. In any event, the writ of prohibition should be used with caution and forbearance for the furtherance of justice and for securing order and regularity in and among inferior tribunals, and it should issue only where the absence or excess of jurisdiction, or the right to relief, is clear."
Halsbury's Laws of England, 4th Endition, Volume I, page 140 contains the following statement of law on the same subject:- "Where the defect is not patent, then eventhough the application is made by a party, the court has a discretion and may decline, by reason of the conduct of the party, to intervene. A stranger has no right to require an order of prohibition; but where a clear excess of jurisdiction by an inferior tribunal is brought to the notice of the court, and a prohibition is necessary in order to enforce public order in the administration of the law, the court is bound to grant it; at least where the application has a personal interest in the outcome of the proceedings. It is otherwise if there is a doubt in fact or law whether the inferior tribunal is exceeding its jurisdiction or acting without jurisdiction.: As regards a mandatory order, the following statement of law in 55 Corpus Juris Secundum page 31, may be usefully reproduced:- "The court in the exercise of its discretion may and should take into consideration a wide variety of circumstances in determining whether the writ should issue. It may and should consider the facts of the particular case, the exigency which calls for the execise of its discretion, the consequences of granting the writ, and the nature and extent of the wrong or injury which would follow a refusal of the writ. The court is not bound to allow the writ merely because applicant shows a clear legal right for which mandamus would be an appropriate remedy, even though without mandamus applicant for the writ would be without remedy. The writ will not be issued on mere techical grounds, and it may be granted or refused depending on whether or not it promotes substantial jutice." In the case of the Lahore Central Co- .Oerative Bank Ltd, versus Pir Saif IJllah Shah (PLD 1959 S.C. 210) this court held as follows:- "Mandamus is a discretionary writ. It is not an order granted as of right and it is not issued as a matter of course, so that the Court may refuse the order not only upon the merits, but also by reason of the special circumstances of the case." As regards Quo warranto, in the case of Kamal Hussain and 7 other versus Muhammad Siraiul Islam and others (PLD 1969 S.C. 42) where quo warranto was sought, this court held as follows:- "Under Article 98 (2) (b) "any person and not necessarily an aggrieved person can seek redress from the High Court against the usurpation of a public office by a person who is allegedly holding it without lawful authority". On that account it cannot be doubted that Mr. Siraj-Ul-Islam did have the locus standi to file the petition. But the grant of relief in writ jurisdiction is a matter of discretion, wherein it is quite legitimate on the part of the High Court to test the bona-fides of the relator to see if he has come with clean hands. A Writ of quo warranto in particular is not to issue as a matter of course on sheer technicalities on a doctrinair approach. In the present case, considering all the circumstances I cannot escape the feeling that Mr.Siraj-Ul- Islam is not entirely playing his own game, for high altruistic motives, and that he has instituted the writ petition not so much-for the vindication of any public right or the redress of a public wrong as to redeem the discomfiture of the defeated candidates, and to fight their battle on another front which some of them had already waged by the process of the election petition within its limitations. The delay has occurred in the filing of the petition which has not been satisfactorily explained is not without effect on the grant of this discretionary relief."
15. It is in exercise of this discretionary power that the High Court after recording the findings on the controvertial issues in favour of the writ petitioners declined to grant relief under Article 199 of the Constitution. As the matter concerns the violation of the constitutional provisions and also the right of the writ petitioners and others to be dealt with in accordance with the law, the exercise of discretion in a particular manner on the facts of these cases requires fullest explanation and complete understanding and comprehension. In the first place it has to be noted that in a democratic system the dissolution of a representative body like the National Assembly has always been taken in a parliamentary form of Government to be in essence an appeal from the legal to the political sovereign. It is ultimately the verdict of the political sovereign which determines the rights or the Power of a Cabinet to retain office. A.V.Diccy, in "An Introduction to the Study of the Law of the Constitution, 10th Edition, at page 438 observes as hcrcundcr:- "The right of dissolution is the right of appeal to the people, and thus underlies all those constitutional conventions which, in one way or another, are intended to produce harmony between the legal and the political sovereign power." This principle of Constitutional Law has become a part of the jurisp irduencc of our country because in rendering the Advisory opinion in ^r>r;'il Reference No. 1 of 1955 by his Excellency the Governor General ^ L.O 1955 Federal Court 435) the court took the following view at page 47l:- "It should not be overlooked that dissolution does not in any way adversely affect the rights of the members of the Assembly. If their claim that they are in the Assembly by the consent of the people and as their representative and not merely because of a statutory provision is good, they can seek re-election to the new Constituent Assembly, there being no disqualification attaching to them from being chosen as members of that Assembly. If they receive a fresh electoral mandate, they can return to the Assembly with greater popular acclamation and thus disprove the allegation that they represent nobody except themselves." In our context what is important, is that the restoration of a National Assembly and Provincial Assemblies which were brought into the existence by materially departing from the essential feature of our own constitutional set up cannot be allowed to take place. As we all know these Assemblies were brought into existence as a result of Partyless elections. As early as in the year 1959, the Constitution Commission of our country had pointed out that "as long as it is the representative form of the Government that has to be worked we fail to see how political parties can be avoided". Justice SA.Rahman, observed in the case of Abdul A'la Maudoodi versus Government of West Pakistan (PLD 1964 S.C. 673) that "In a democratic setup such as is visualised by our present Constitution, the presence of political parties is regarded as an essential feature so that it is conceivable that the opposition of today may be the Government of tomorrow.. In judgment of this Court of Miss Benazir Bhutto the following observations made by each of the learned Judge recording an opinion arc rclcvant:- i) "Our Constitution is of the pattern of Parliamentary democracy with a Cabinet system * based on party system as essentially it is composed of the representatives of a party which is in majority......... It is a party system that converts the results of a Parliamentary election into a Government. "(Muhammad Haleem, C.J.) ii)
"It provides a basic guarantee to the citizen against usurpation of his will to freely participate in the affairs and governings of Pakistan through political activity relating thereto. "(M.A.Zullah, J) iii)
"Persons elected to the legislature in their personal capacities have hardly any importance. They just toss around on the political scene, rudderless and without a destination. It is only when they band them-selves into a group, as a party, that they become a force exercising some influence by their activities. It is only as members of a political party and not as individual members of the legislature; can they achieve their objectives." (Nasim Hasan Shah, J) iv) "The right to form, and be member of, a political party, is an indispensable political tool for the effective use of the process of a democratic government. Besides, the right is vital for the maintenance of other demoratic rights like the right to practice one's profession etc. It is often said that Government by public opinion involves the right to create and organize opinion with a view to influence the conduct of Government, or to bring about a change in the Government." (Abdul Kadir Shaikh, J) v) "It is conceded on all hands and is so recognised in the Constitution that Islam confers on the people the right to choose the persons who shall govern them. To deny them the right to organize themselves for choosing such persons is to negate and destroy that right itself. "(Shafiur Rahman, J) vi) "The expression "n /.Itical justice" is very significant and it has oeen placed in the category of fundamental rights. Political Parties have become a subject-matter of a fundamental right in consonance with the said provision in the Objectives Resolution. Even otherwise, speaking broadly our Constitution is a Federal Constitution based on the model of Parliamentary form of representative government prevalent in United Kingdom. It is also clear from the Objectives Rcsulution that principles of democracy as enunciated by Islam are to be fully observed. True and fair elections and the existence of political parties, is an essential adjunct of a functional democratic system of Government." (Zaffar Hussain Mirza, J.) It will be clear from the foregoing observations that Partylcss elections are not in consonance with the Scheme of our Constitution and when this Court is possessed of a discretion, or a choice whether to revive, restore or perpetuate by rcsuscicating such Assemblies, the Court will stand for constitutionalism rather than departures and deviations from it and refuse to restore them. There is another reason too for exercising the discretion or the choice in this manner. On the sub-continent, as elsewhere in the Parliamentary Democracies, in order to avoid or in any case to reduce corrupt and illegal practices at an election, control has been exercised through the maximum limit of election expenses. Rogger on Elections (Parliamentary Election and Petitions) 1928 edition at page 120 observes "the evil consequent on the enormous expense commonly incurred at elections has long been acknowledged". As long ago as 16% British Election Act mentioned "the excessive and exorbitant expenses contrary to the laws and in violation of the freedom due to the election of representatives for the commons of England in Parliament to the great scandal of the Kingdom, dishonourable and may be destructive to the constitution of Parliament". The rationale of the requirement has been described by Nanak Chand in Laws of Election 1937 edition page 246 as "Candidates are required to lodge a return of their election expenses with the Returning Officer. The object of this salutary safeguard is the imposition of a curb on the munificence of a rich candidate and to eliminate the element of undue influence and other unwarranted practices, which generally follow in the wake of an indiscriminate abuse of money.
16. Such a limit always existed in the recent past in our country and did so when members of these Assemblies contested the elections and got elected. But soon thereafter when came the time to file the return of the expenses incurred at the election all were absolved of this responsibility by making an amendment in the law. To be specific section 50 and 51 of the Representation of the People Act 1976 before the amendment provided as hereunder:- "50.
Return of election expenses. -(1) Every contesting candidate shall, within forty-five days after the publication of the name of the returned candidate, submit to the Returning Officer a return of election expenses in the prescribed form containing - a) a statement of all payments made by the contesting candidate together with all the bills and receipts; b) a statement of all disputed claims of which the contesting candidate is aware; c) a statement of all unpaid claims, if any, of which the contesting candidate is aware; and d) a statement of all moneys, securities or equivalent of money received from any person for the purpose of election expenses specifying the name of every sOch person. (2) The return submitted under sub-section (1) shall be accompanied by an affidavit in the prescribed form sworn by the contesting candidate.
51. Inspection of returns, etc. - (1) The return and documents submitted under section 50 shall be kept by the Returning Officer in his office or at such other convenient place as he may think fit and shall, during one year from the date of their receipt by him, be open to inspection by any person on payment of the prescribed fee. (2) The Returning Officer shall, on an application made in this behalf and payment of the prescribed fee, give any person copies of any return or document kept under sub-section (1) or of any part thereof." Ordinance No.XXVI of 1985 promulgated on 19-3-1985 introduced a new sub-section in section 50 of this Act and it was as hereunder "(3) Notwithstanding anything contained in sub- section (1), a contesting candidate at the elections held under the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, shall not be required to submit a return of election expenses." In this manner even this formal public accountability was dispensed with for the members of these Assemblies. v The third factor to be noted is that all the Writ Petitioners were directly and immediately affected by the dissolution of the Assemblies, by the failure to hold the General elections within ninety days of the dissolution, by the omission to appoint a Prime Minister for the Caretaker Cabinet, but none of them came forward to challenge any of these acts of omission and commission. It was only when the late General Muhammad Zia-ul-Haq, disappeared from the scene on account of an unforeseen disaster, after the stage had been fully set and the whole nation was preparing itself for the General elections that these Writ Petitions were filed seeking reversal of the state of affairs, asking for a declaration of all round pervasive nullities and illegalities and for claiming all the reliefs which have been enumerated. This conduct of the petitioners, the stage at which these Petitions were filed and the death of General Muhammad Zia- ul-Haq whose acts had in essence occasioned all the grievances of the Petitioners, disentitled them of any discretionary relief in the matter. The mere transitory continuance of such a pre- existing state of affairs, with an eye on the immediate and prime objective of holding a timely and fair General elections prompts us not to interfere in these proceedings with those matters, and the prevailing state of affairs. For reasons already given the Findings recorded by the High Court are upheld, the denial of relief to the writ petitioners is affirmed, and all the appeals are dismissed with no order as to costs.