1. SHAFIUR RAHMAN, J.--By a short order dated 4th of November, 1991 the Civil Petition for Leave to appeal against the judgment of the High Court dated 14-10-1990 was dismissed for reasons to be recorded later on. Hereunder are the facts of the case and the reasons for dismissal of the Petition and refusal of the leave to appeal:-- The President of Pakistan by an order under Article 58(2)(b) of the Constitution on 6th of August, 1990 dissolved the National Assembly in exercise of his discretion as, according to him, 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 had become necessary. The formal order which was gazetted is reproduced hereunder in extenso:- "The President having considered the situation in the country, the events that have taken place and the circumstances, and among others for the reasons mentioned below is of the opinion that 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) The utility and efficacy of the National Assembly as a representative institution elected by the people under the Constitution, and its mandate, is defeated by internal dissensions and frictions persistent and scandalous `horse-trading' for political gain and furtherance of personal interests, corrupt practices and inducement, in contravention of the Constitution and the law, and by failure to discharge substantive legislative functions other than the adoption of the Finance Bill, and further the National Assembly has lost the confidence of the people.
(b) The Constitution envisages the Federation and the Provinces working within the spheres respectively assigned to them with clearly delineated executive and legislative authority, and with a view to safeguarding the structure of the Federation also contains special provisions of mandatory nature to ensure and protect the authority granted to the provinces, by creating specific constitutional institutions consisting of Federal and Provincial representatives, but the Government of the Federation has wilfully undermined and impaired the working of the constitutional arrangements and usurped the authority of the Provinces and of such institutions, resulting in discord, confrontation and deadlock, adversely affecting the integrity, solidarity and well-being of Pakistan, in that, inter alias-
(i) The Council of Common Interests under Article 153, which is responsible only to Parliament, has not been allowed to discharge its Constitutional functions and exercise its powers despite persistent demands of the Provinces, and Parliament has also not been allowed to function in this regard as required by Articles 153 and 154, and in relation to Articles 155 and 161.
(ii) The National Finance Commission under Article 160 has never been called to meet 'and. Allowed to function, thus blocking mandatory constitutional process in the matter of allocation of shares of revenues to the Provinces despite their persistent demands.
(iii) Constitutional powers and functions of the Provinces have been deliberately frustrated and extension of executive authority of the Federation to the Provinces in violation of Article 97 and by the general manner of implementation of the Peoples' Programme.
(iv) The Senate, which is representative of the Federating Units under Article 59 and is an integral part of Parliament, has been ridiculed and its Constitutional role has been eroded.
(c) Corruption and nepotism in the Federal Government, its functionaries and Authorities and Agencies statutory and other corporations including Banks, working under its supervision and control and the holders of representative offices has reached such proportion that the orderly functioning of the Government in accordance with the provisions of the Constitution including the requirements of the Oath(s) prescribed therein, and the law, does no longer carry public faith and credibility and despite being subject to wide public condemnation, the Government has failed to take appropriate action in this behalf.
(d) The Federal Government has failed in its duty under Article 148(3) of the Constitution to protect the Province of Sindh against internal disturbances and to ensure that the Government of that Province is carried on in accordance with the provisions of Constitution, despite the heavy loss of life and property, the rule of terror in urban and rural areas, riots, arson, dacoities, kidnapping for ransom, politics of violence among citizens and widely condemned failure of the Provincial Government and its law enforcing agencies, and also, in this behalf, failed to act under appropriate provisions of the Constitution.
(e) The Government of the Federation has violated the provisions of the Constitution and the law in that:--
(i) The Superior Judiciary has been publicly ridiculed and its integrity attacked and attempts made to impair its independence.
(ii) Authority, resources and agencies of the Government of the Federation including statutory Corporations, authorities, and Banks have been misused for political ends and purposes and for personal gains.
(iii) The Civil Services of Pakistan have been undermined by disregarding the provisions of Articles 240 and 242.
(iv) The powers under Article 45 have been exercised by the Government without prior approval of the President.
2. Now, therefore, 1, Ghulam Ishaq Khan, President of the Islamic Republic of Pakistan in exercise of the powers conferred on, me by clause (2)(b) of Article 58 of the Constitution of the Islamic Republic of Pakistan dissolve the National Assembly with immediate effect; and the Prime Minister and. The Cabinet cease to hold office forthwith."
3. This Order of the President of Pakistan was challenged amongst others by the Petitioner Khawaja Ahmad Tariq Rahim who was, earlier to the impugned order, a Federal Minister of Parliamentary Affairs in the Government of Pakistan. The grounds taken up in the Writ Petition were, generalities apart, the following:-
(1) The words "discretion" and "opinion" used in sub-Article (2) of Article 58 of the Constitution were meant to satisfy an objective test and not a subjective test;
(2) The High Court in the case of Muhammad Sharif v. Federation of Pakistan (PLD 1988 Lahore 725) and Supreme Court in the case of Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 Supreme Court 166) had not only held, that this discretion and opinion formation had to satisfy the objective test but also proceeded to hold that there must be a complete breakdown of the Constitutional machinery;
(3) The discretion exercised by the President in passing the impugned order was arbitrary, unjust, capricious and mala fide and against the spirit of the Constitution and democrative system;
(4) The matters which were sub judice in Courts in one form or the other e.g., failure to summon a meeting of the Council of Common Interests, and the case of Mr. Ihsanul Haq Piracha could not be made the basis for the impugned action;
(5) The grounds taken up were factually incorrect and insufficient for the action taken.
4. A larger Bench of the Lahore High Court heard this Constitution Petition and others instituted, on transfer to it, on the same subject. After affording full hearing to the parties, a short order was passed by the High Court on 14-10-1990. The operative part of it, so far as relatable to the impugned Order, was as hereunder:- "After having considered the arguments of the learned counsel for the parties and perusal of the material placed by them on the record we find that the President was justified in forming the opinion that the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary. This opinion could validly and reasonably be formed from, amongst others, the following acts of commission and omission of the Federal Government:-
(i) No substantial legislative work had been and could be carried on by the Government in the National Assembly inter alia for the reason that the Government had virtually no representation in the Senate. During its twenty months' tenure out of fifty Ordinances/Bills presented before the National Assembly only fifteen could be passed by the Parliament while the remaining thirty-five were not processed and allowed to lapse.
(ii) The Federal Government miserably failed to perform its obligation under Article 148(3) of the Constitution to protect the Province of Sindh against internal disturbances which continued unabated and assumed serious proportions beyond the control of the Provincial Government.
5. Despite repeated advice of the President, clear view expressed by the Governor of Sindh and opinion of the then Attorney General, resort to the provisions of Article 245 of the Constitution was not made resulting in colossal loss of life and property thereby endangering the integrity and solidarity of Pakistan.
(iii) The Constitution envisages Pakistan as an Islamic Federal Republic wherein the Federal Government and the Federating Units have well defined powers and sphere of operation. A mechanism is in-built in the Constitution to resolve disputes between the Federation and its units and between the units inter se. Inaction on the part of the Federation in resolving such disputes may endanger the federal structure of the State itself. In this regard one of the important institutions is the Council of Common Interests constituted under Article 153 of the Constitution. It formulates and regulates policies in relation to matters in Part-II of the Federal Legislative List and entry 34 (Electricity) in the Concurrent List (refer Article 154), supervises and controls the related institutions and is also required to determine the rates at which net profits arc to be calculated in terms of Article 161. The documents on record reveal that the Federal Government despite repeated demands by three. Out of four federating units and unanimous resolution of the Senate, failed to call a meeting of the Council of Common Interests resulting' in polarisation and confrontation between the Federation and two federating units which eventually obliged them to rile a suit against the Federation in the Supreme Court of Pakistan.
(iv) The, formation of the National Finance Commission, another important institution, required to be set up under Article 160 of the Constitution for distribution of revenues between the Federation and the Provinces was unnecessarily delayed with the result that not a single meeting could be convened thereby depriving the federating units to have redress of their grievances.
(v) The provincial autonomy guaranteed by the Constitution was eroded by launching People's Works Programme in a manner contrary to Article 97 of the Constitution without any legislative backing.
(vi) Article 14 of the Constitution guarantees that the dignity of man and, subject to law, the privacy of home shall be inviolable. This fundamental right was flagrantly violated and disregarded by tapping the telephones of highly respected persons, including dignitaries like the Chairman of the Senate and Speaker of National Assembly. Even the members of the Government party were not spared, petitioner being one of those whose telephones were tapped.
(vii) Important Constitutional organs of the State like the Senate and superior Judiciary were publicly ridiculed and brought into disrespect. Even the legal existence and validity of the Senate was disputed by the Federal Government.
(viii) Misuse by the Federal Government of Secret Service Funds running into crores of rupees and unauthorized use of aircrafts belonging to PAF and PIA for transportation of MNAs at the time of No Confidence Motion.
(ix) Wholesale and indiscriminate appointments in the Civil Services of Pakistan and the , Services under the Statutory Corporations in violation of law.
6. The controversy arising in this appeal is substantially narrowed down by the fact that both the parties are agreed that the law laid down by this Court in Federation of Pakistan v. Haji Muhammad Saifullah Khan (PLD 1989 S.C. 166) should be applied, as none challenges or questions its soundness or applicability. The petitioner wants to avail of two principles of law laid down therein.
7. The first is the justifiability of such an order on the yardstick of an objective criteria. The second is the exact objective criteria required for sustaining such an order of dissolution. For the first principle 'reliance has been placed on the following observations in Haji Muhammad Saifullah's case (PLD 1989 SC 100) at page 212 of the report:- "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 this 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 arc concerned. Additionally the existence of jurisdictional facts capable of judicial ascertainment and adjudication was made a precondition for the exercise of this power. Not to test the exercise of this power by reference to these constitutionally _ prescribed jurisdictional facts, namely:-
(i) a situation has arisen is 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: would in fact amount to a failure to discharge a duty ordained by the Constitution itself."
8. For the second principle the reliance has been placed on the following two observations contained in the same judgment:- "(i) 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 on in, accordance with the provisions of the Constitution.
(ii) The expression "cannot be carried on" sandwiched as it is between "Federal Government" and "in accordance with the provisions of the Constitution", requires a very potent, a very positive and 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 Constitutional mechanism, a stalemate, a deadlock in ensuring the observance of the provisions of the Constitution."
9. According to the learned counsel for the petitioner if the law so laid down is applied to the facts of the case under consideration then the impugned Order cannot stand because there was no breakdown of the Constitutional machinery, no impasse or stalemate to paralyse the functioning of a Constitutional Government in 'the country. Additionally, the learned counsel contended that.
10. Even if such a situation existed there were alternative powers for the President to which resort could be had. In this connection he has referred to Article 233--Proclamation of Emergency; Article 184(1)--Resort to original jurisdiction of Supreme Court in any dispute between-any two or more Governments; section 131-A of the Criminal Procedure Code--Power to use military force for the public security and maintenance of law and order. According to him, without availing of any of these alternatives, direct resort to such an extreme measure cannot be constitutionally justifed.
11. The learned Attorney-General has, on the other hand attempted to demonstrate the factual correctness of the grounds invoked for dissolving the National Assembly, its nexus with the powers conferred on the President, and the imminence and gravity of situation prompting the exercise of such a power by him.
12. Mr- Sharifuddin Pirzada, Senior Advocate, appearing for the Federal Government has presented before us the historical perspective in which the expressions "situation has arisen" and "Government cannot be carried on 'in accordance with the Constitution" came to be used so as to give a specific meaning and connotation to them. He has referred to exercise of similar power of dissolution of elected Assemblies in India, Australia and the restraint exercised by the Courts in testing meticulously the factual correctness of the grounds made the basis for such an action. He has also pointed out that an identical challenge to the impugned order of dissolution did not succeed in High Court of Sindh in Khalid Malik and others v. Federation of Pakistan and others PLD 1991 Karachi 1. The judgment has become final as no appeal was preferred against it. It would operate as res judicata on the strength of decision given by this Court in Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145.
13. There are three general arguments advanced by the learned counsel for petitioner which need attention at this stage before taking up the specifics. The first was that there were available to the President other alternative Constitutional remedies before restoring to this or such a drastic step. In advancing this argument a misconception with regard to the Constitutional powers enjoyed by the President in his discretion and by the Prime Minister has been exhibited. All the alternative powers referred to are exercisable by the President only on the advice of the Prime Minister and not in his discretion. It is not for the President to seek advice of the Prime Minister and to obtain one. Nor is it open to the Courts to examine what advice, if any, was given and how it was received. None of the powers, be it under Article 186(1), or Article 233(1) or Article 184(1) of the Constitution or even section 131-A of the Criminal Procedure Code is exercisable by the President in his discretion. So there are no alternative remedies available to the President but these alternative remedies are available to the Prime Minister.
14. The second argument addressed was that the National Assembly is the only instrumentality of State directly elected by the people of Pakistan. Such an elected body should not be at the mercy of an indirectly elected constitutional functionary howsoever high. This or such an argument may be theoretically sound and plausible. However, the express words of the Constitution make provision for it. Ours is not the only country where the power is so reserved. The legal and moral basis for reserving or reposing such a power 'and the occasional exercise of it have been illustratively described by A.V. Dicey in his book "Introduction to the Study of the Law of the Constitution" (12th Edition) at page 433 as hereunder:- "This looks at first sight like saying that in certain cases the prerogative can be so used as to set at naught the will of the nation. But in reality it is far otherwise. The discretionary power of the Crown occasionally may be, and according to the Constitutional precedents sometimes ought to be, used to strip an existing House of Commons of its authority. But the reason why the House can in accordance with the Constitution be deprived of power and of existence. Is that an occasion has arisen on which there is fair reason to suppose that the opinion of the House is not the opinion of the electors. A dissolution is in its essence an appeal from the legal to the political sovereign. A dissolution is allowable, or necessary, whenever the wishes of the legislature are; or may fairly be presumed to be, different from the wishes of the nation.
15. This is the doctrine established by the celebrated contests of 1784 and of 1834. In each instance the King dismissed a Ministry which commanded the confidence of the House of Commons. In each case there was an appeal to the country by means of a dissolution. In 1784 the appeal resulted in a decisive verdict in favour of Pitt and his colleagues, who had been brought into office by the King against the will of the House of Commons. In 18_'34 the appeal led to a verdict equally decisive against Peel and Wellington, who also had been called to office by the Crown against the wishes of the House. The essential point to notice is that these contests each in effect admit the principle that it is the verdict of the political sovereign which ultimately determines the right or (what in politics is much the same thing) the power of a Cabinet to retain office, namely, the nation.
16. Much discussion, oratorical and literary, has been expended on the question whether the dissolution of 1784 or the dissolution of 1834 was Constitutional (See Emden, The people and the Constitution (2nd Edn., 1956) pp.194-196, 197-201-ED). To a certain extent the dispute is verbal and depends upon the meaning of the word "constitutional". If we mean by it "legal", no human being can dispute that George the Third and his son could without any breach of law dissolve Parliament.
17. If we mean "usual", no one can deny that each monarch took a very unusual step in dismissing a Ministry which commanded a majority in the House of Commons. If by "constitutional" we mean "in conformity with the fundamental principles of the Constitution," we must without hesitation pronounce the conduct of George the Third constitutional, i.e. In conformity with the principles of the Constitution as they are now understood. He believed that the nation did not approve of the policy pursued by the House of Commons. He was right in this belief. No modern constitutional list will dispute that the authority of the House of Commons is derived from its representing the will of the nation, and that the chief object of a dissolution is to ascertain that the will of Parliament coincides with the will of the nation. George the Third then made use of the prerogative of dissolution for the very purpose for which it exists. His conduct, therefore on the modern theory of the constitution, was,, as far as the dissolution went, in the strictest sense constitutional. But it is doubtful whether in 1784 the King's conduct was not in reality an innovation, though a salutary one, on the then prevailing doctrine."
18. A more recent version of the same is found in the book "The Prime Minister of India Powers and Functions" by Dr. (Mrs.) Sarla Malik at pages 48 to 50 in the following words:- "The Prime Minister can also be dismissed if he stays in office by misusing his powers, arid in very exceptional circumstances, if his stay in office is not considered in the national interest by the President. In such circumstances, the President can dismiss him even if he commands a majority in the Lok Sabha. This course of action was adopted by Sir John Kerr, the Governor-General in Australia in November 1975. Even in Germany under the Weimar Republic President Hindenburg dismissed the Chancellor of the Reich, Brunning, in May, 1932, though he was in command of a majority in the Reich, and his term was still to run for two more years ... ... ... .... ....For instance, after the dismissal of the Labour Ministry, headed by Gough Whitlam, and the appointment of the Liberal Ministry, headed by Malcolm Fraser by Sir John Kerr, the then Governor General of Australia in November 1975, fresh elections were held in December 1975, after dissolving the Senate and the House of Representatives. Fraser's Liberal. Party Coalition got a majority in both Houses of Parliament. This shows that the assessment of the political situation by the Governor General was correct and his action was upheld by the electorate. On the other hand, if the assessment made by the Governor General had proved wrong, and the electorate had again voted to power the Labour Party of Gough Whitlam, the position of the Governor General would have been really difficult. It will not be out of place to mention here that Dharma Vira, who had dismissed United Front Ministry, headed by Ajoy Mukherjee, had to leave West Bengal when the United Front was voted back to power in 1968. Similarly, Marshal Macmohan in France.-had to resign in 1877 for dismissing the Ministry, which came back to power ... ... ... ... ... ... .. ...The power of dismissing the Prime Minister may be viewed in the perspective that if the Council of Ministers is bent upon subverting the Constitution; the President has certain reserve powers, and is obliged by his oath to exercise them."
19. The specific power, the jurisdictional requirement all being provided in our Constitution, it is not necessary to either go back deep into history or to I infer a residual but necessary power of the President in the matter.
20. The third general argument, contained more in writing than addressed orally could be summed up as that the horse-trading of elected representatives, corruption and nepotism, violations of individual constitutional provisions e.g. Not summoning Council of Common Interests or Finance Commission, all have been taking place in the past and even after dissolution of the National Assembly. Hence, these factors could not be made the grounds for the impugned action. Such an argument may be attractive to the gallery but it cannot prevail because, once the evil is identified, remedial and corrective measures within the constitutional framework must follow. Public functionaries, holding public power in trust, under oath to discharge the same impartially and to the best of their ability must react. They cannot and must not renaing silent spectators.
21. The power invoked by the President is enshrined in Article 58(2)(b) of the Constitution, the relevant portion of which reads as hereunder:- "58(1) ......................................................
22. (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."
23. Article 48 of the Constitution provides for the manner of exercise of various constitutional functions by the President. The portion relevant to the question under discussion is as hereunder:- "48.President to act on advice, etc.--(I) In the exercise of the functions, the President shall act in accordance with the advice of the Cabinet or the Prime Minister: Provided that the President may require the. Cabinet or, as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
(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 and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever.
(3) Omitted.
(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 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.
(6) ------------------------------------------
(7) ------------------------------------------ In the Third Schedule of the Constitution are contained the Oaths prescribed fur the President, the Prime Minister, the Ministers and the Members of the National Assembly. A feature common to all the oaths is the duty to "preserve, protect and defend the Constitution of the Islamic Republic of Pakistan".
24. Coming now to the specifics, the jurisdictional requirement for an action under Article 58(2)(b) of the Constitution is that 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". Section 45 of the Government of India Act, 1935 contained this expression in the following words:- "45.--(1) If at any time the Governor General is satisfied that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of this Act, he may by Proclamation-
(a) declare that this functions shall to such extent as may be specified in the Proclamation be exercised by him in his discretion;
(b) assume to himself all or any of the powers vested in or exercisable by any Federal body or authority.
25. This provision was commented upon by authors of "the Constitutional Law of India & England," i.e. J.N. Varma and M.M. Gharekhan, as hereunder:- "BREAKDOWN OF THE CONSTITUTION
569. When this Act was on the anvil, Parliament expressed the opinion that the safe running of the Government of India must be sufficiently ensured. A situation might arise in which the working of the Constitution as laid down by the Act was either impracticable or impossible. It is with a view to meet such a situation that section 45 has been enacted. The wording of this provision, it must be remarked,' is both unique and unusual. There is no precedent for it either in England or the Federal Dominions or the United States of America; and the use of the term `Constitutional machinery' is altogether novel to Constitutional Law ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...The section which can be described as a `break- down section', makes a detailed provision with a view not to turn the Federation into something like permanent dictatorship. Parliament will have a very close control of the situation. From the point of view of the Indian States also it was thought highly desirable that the exercise of these emergency powers did not become permanent.
26. This section, it will therefore be seen, was enacted after keeping many constitutional and emergent points in view. First of all, a view was kept - in mind that Parliament should keep a check on any renewal. Secondly, it was necessary not to jeopardise the position of the States; thirdly, the assumption of all the powers by the Governor General should not be permanent; fourthly, the other Federal Organs which would not otherwise be affected by the breakdown of the Constitution, should be allowed to function; fifthly, the Federal Court should not be allowed to be affected by the suspension of the Constitution:'
27. In a note appearing in Secrvai-Basu's Commentary on the situation of India Sixth Edition Volume `O'
28. (1989 - Silver Jubilee Edition) rage 17 following remarks with regard to scope and meaning of this session arc made:- "This is the sense in which the Joint Parliamentary Committee on Indian Constitutional Reforms (1933-34), Vol. I, para. 109, explained the proposed provision in S.93 in the Government of India Act, 1935, where similar power to assume sole responsibility for the administration of the Province had been conferred on the Governor, in case of a breakdown of the machinery of the Provincial Government, in whole or in part.
29. See also the earlier Report of the Simon Commission, Vo1.II (para. 65), where the two expressions `breakdown of the constitutional system' and `the Government of a province cannot be carried out in accordance with the provisions of the Statute' were used as referring to the same situation, and as instances of such situation werementioned -- `complete inability to form or maintain in office any Ministry enjoying support from the Legislature's widespread refusal to work the normal constitution of the province, or general adoption of a policy which aimed at bringing Government to a standstill'.
30. While introducing Draft Art. 278 (now Art. 356), Dr. Ambedkar explained that he was introducing a provision `analogous to S.93 of the Government of India Act, 1935', to meet a `breakdown of the constitutional machinery' (IX C.A.D., 132-33, 177)."
31. This expression received a fuller attention by the framers of the Indian Constitution who confined it to the provincial sphere only (Article 356 of the Indian Constitution):-- Even if one seeks to exclude the marginal note of Art. 356 and confine the interpretation to the words (failure to carry on the Government of the State) `in accordance with the provisions of the Constitution' it would not refer to the failure to comply with particular provisions of the Constitution, but the failure to maintain the `form of the Constitution', which, in relation to the Provincial part of the Constitution, meant the form of `responsible Government', as Krishnaswami Ayyar explained.
(iii) The foregoing narrow interpretation would also follow from the premises explained by the framers of the Constitution themselves that Art. 356 (draft Art. 278) was a corollary or adjunct to the duty of the Union under Art. 355) (draft Art. 277A) and that Art.355 had been drafted on the model of Art. IV(4) of the Constitution of the U.S.A., which enjoined the United States to guarantee to every State in the Union "a republican form of Government". Broadly speaking, that expression has been understood to mean "a form that, as distinguishes from aristocracy, monarchy, or direct democracy, rests on the consent of the people and operates through representative institutions". If that be so, neither the provisions in Art. IV(4) of the American Constitution nor Art. 355 of the Indian Constitution (can be used to subvert the normal system of Government in a State on the plea of violation) of particular provisions of the Constitution, short of breakdown of the constitutional machinery or form of representative and responsible Government."
32. This much for the background of the constitutional power, its. Scope and meaning in the past and in the contemporary decisions outside Pakistan. In Haji Muhammad Saifullah Khan's case (PLD 1989 SC 166) our Constitutional provision has received full attention and its meaning and scope authoritatively explained and determined. It is an extreme power to be exercised where there is an actual or imminent breakdown of the constitutional machinery, as distinguished from a failure to observe a particular provision of tho Constitution. There may be occasion for the exercise of this power where there takes place extensive, continued and pervasive failure to observe not one but numerous provisions of the Constitution, creating the impression that the country is governed not so much by the Constitution but by methods extra- Constitutional.
33. The very first ground disclosed in the dissolution order is the utility and efficacy of the National Assembly as a representative institution being delegated by-
(i) internal dissensions and frictions;
(ii) persistent and scandalous horse-trading;
(iii) corrupt practices, inducement;
(iv) failure to discharge substantive legislative business; and
(v) National Assembly having lost the confidence of the people.
34. The objection of the petitioner to this ground is two-fold. Firstly, that the express words of the Constitution talk of Government and not of National Assembly. For that reason an entirely extraneous consideration has been kept in view. Secondly, factually all that has been mentioned as a fact is not correct.
35. The word "Government" has not been defined in the Constitution. Black's Law Dictionary defines it as "the whole class or body of office-holders or functionaries considered in the aggregate upon whom devolves, the executive, judicial, legislature and administrative business of the State." While interpreting President's Order I of 1970, the Lahore High Court in Master Khusrow Amrr Khan Niazi v.
36. Province of Punjab and 2 others (PLD 1975 Lahore 819) held as hereunder:- "it may also be observed in this connection that under clause (b) of subsection (1) of section 20 of the President's Order No.l of 1970 the President can by order make suitable provisions for "the Government and administration of the Islamabad Capital Territory". The President's Order 12 of 1971 has, inter alia, been made in pursuance of the provisions of clause (b) of subsection (1) of section 20 of President's Order I of 1970. The term "Government" used in the abovementioned provisions includes the exercise of legislative functions. This becomes all the more clear because the term "Government" has been employed in addition to and apart from the term "administration", in the above provisions. As explained by the Supreme Court in Iftikharuddin v. Muhammad Sarfraz PLD 1.961 SC 585, the word "Government" includes in its ordinary connotation, legislative, judicial and executive functions, and the ordinary connotation should be adopted in the absence of any indication to the contrary. There is nothing in the President's Order I of 1970 which indicates any contrary intention.
37. There is no reason why the word "Government" used in Article 58(2) of the Constitution be given a restricted or a different meaning.
38. The preamble to our Constitution prescribes that "the State shall exercise its powers and authority through the chosen representatives of the people". Defection of elected members has many vice.
39. In the first place, if the member has been elected on the basis of a manifesto, or on account of his affiliation with a political party, or on account of his particular stand on a question of public importance, his defection amounts to a clear breach of confidence reposed in him by the electorate. If his conscience dictates to him so, or he considers it expedient, the only course open to him is to resign to shed off his representative character which he no longer represents and to fight a re-election. This will make him honourable politics clean, and emergence of principled leadership possible. The .Second, and more important, the political sovereign is rendered helpless by such betrayal of its own representative. In the normal course, the elector has to wait for years, till new elections take place, to repudiate such a person. In the meantime, the defector flourishes and continues to enjoy all the wordly gains. The third is that it destroys the normative moorings of the Constitution of an Islamic State. The normative moorings of the Constitution prescribe that "sovereignty over the entire universe belongs to Almighty Allah alone, and the authority to be exercised by the, people of Pakistan within the limits prescribed by Him is a sacred trust" and the State is enjoined to "exercise its powers and authority through the chosen representatives of the people". An elected representative who defects his professed cause, his electorate, his party, his mandate, destroys his own representative character. He cannot on the mandated Constitutional prescription participate in the exercise of State power and authority. Even by purely secular standards carrying on of the Government in the face of such defections, and on the basis of such defections, is considered to be nothing but "mockery of the demoratic Constitutional process". The other enumerated evils contained in first ground precede, accompany or follow the defection. That there had been taking defections has not been seriously disputed, nor the t fact that the defectors were quite often rewarded with posts and prizes. As regards the second ground, we find sufficient correspondence on record to indicate that persistent requests were made by the Provinces for making functional the Constitutional institutions like Council of Common Interests, National Finance Commission with a view to sort out disputes over claims and policy matters concerning the Federation and the Federating Units as such. In spite of the intercession of the President, no heed was paid, constitutional obligations were not discharged thereby jeopardizing the very existence and I sustenance of the Federation.
40. It is true that some of the grounds like (c), a (ii) and a (iii) may not have been independently sufficient to warrant such an action. They can,however, be invoked, referred to and made use of along with grounds more relevant like.(a) and (b) which by themselves are sufficient to justify the action taken.
41. Hence, there is no case on merits for grant of leave to appeal which is hereby refused.
42. ABDUL SHAKURUL SALAM, J.--At the conclusion of the hearing the petition was dismissed by a short order dated 4-.1.1-1991, detailed reasons to be given later.
43. I have had the privilege and learnt a lot from the analytical exhaustive treatment by my learned brother Mr. Justice Shafiur Rehman of the questions involved in the petition. In view of the gravity and potentiality of the Constitutional interpretation involved in the case I take it as my duty to express my views as I see the vicissitudes through which the country has passed in the Constitutional journey, where it stands and how various courses arc likely to lead to.
2. It is distressing that a country in the process of whose creation mothers were murdered, sisters enslaved, girls mutilated, boys butchered, whole families slaughtered and millions made to (cave their hearths and homes should find itself that in spite of having been given birth under a Parliamentary Statute, Indian Independence Act, 1947, with a working constitutional framework provided under the Government of India Act, 1935, based on federal principle and parliamentary form of government, individuals one after another come to take the reins of the affairs of the State for long periods of time without having any mandate 'from the people of the country. To understand this morass it would be appropriate to look back as Arnold, J. Toynbee did in his study of History to examine the place of existing civilizations with reference to the past civilizations--their growth, disintegration and the impact they made on the present. It pains me to see how a beautiful country sitting on the shoulders of the sub-continent of India at the foot of Himalaya in the East of green landscape intercepted by rivers and exhuberant people to improve their lot and in the West vast plains irrigated by canals, mighty Indus and mountainous regions full of minerals with robust people to proceed with confidence to advance to prosperity has been cut into half and its people left frustrated, bewildered, not knowing what might strike them tomorrow.
44. 2.The reason lies perhaps in the flurry and flush of the independence it was forgotten that the two principles permeating the creation of the country were federal structure of State and parliamentary form of government. Principles became victim of passions of people who came to carry on the day to day administration of the State. May be Meredith in his Love's Grovees was right; "Passions spin the plot We are betrayed by what is within"
45. 3.State having been created, for its governance basic legal documents being there, its policies. And laws were to be implemented. For this civil servants were employed, to look after the borders military personnel. They performed a colossal task of establishing the machinery of the government, looking after the citizens and absorbing millions of refugees. But for them it would not have been possible to organize the life of the people of the country. They are entitled to our tribute.
46. 1 respect them. But what follows is from the deepest and sincerest sentiments that we understand the basic melee so that we can attend to it and all survive. Country's existence is essential to serve or rule. Some of those who reached the top or occupied key positions outstripped the bounds of service, succumbed to the temptation to rule, notwithstanding that they were not so endowed as they had sought security of service in early life and were trained to obey and serve. To rule a free people is very different from ruling one's subordinates.
47. 4.On the advent of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah became the Governor General and his right hand man Mr. Liaquat Ali Khan the Prime Minister. After the sad demise of the Quaid, his lieutenant from East Pakistan Kh. Nazim-ud-Din became the Governor General. The Prime Minister was assassinated. The assassin was killed at the spot. A high official of the Police was said to be an instrument of the intrigue. Nothing was done to find out the truth. As in a parliamentary system, the surviving lieutenant of the Quaid-i-Azam, Kh. Nazim-ud-Din stepped down from the ceremonial office of the Governor General and took over the reins of the affairs of the State in his hand as a Prime Minister. He was a noble man. As in a Greek tragedy he did something which turned out to be his undoing. He nominated a man from Account service Mr. Ghulam Mohammad to be the Governor General. It was understood that the country having attained Independence, it will be governed by the Parliament through the Prime Minister and his Cabinet and the governor- general will be a figurehead. The assumption turned out sour. The Governor General who all his life had been adjusting accounts displayed his expertise in managing the men of the establishment.
48. He dissolved the Constituent Assembly functioning as Federal Legislature as well and dismissed the Prime Minister and the Cabinet. Though he himself was paralysed yet inflicted a fatal blow to the nascent Constitutional system of the State. Nature has its own ways. Nemises is not far away. The Governor General made his exit but none was 'told where he was laid under -the dust. Major- General Sikandar Mirza, Defence Secretary managed to get into the saddle. A new Assembly was elected. It framed the first Constitution of the Islamic Republic of Pakistan in 1956. The Governor General took Oath under it as President to uphold and defend the Constitution. But in two years time he abrogated the Constitution and handed over the country to the Commander-in-Chief to be put under Martial Law. Though he had hoped to continue to govern when he said to others; go, while the going is good, but little realized that two swords do not sit well in a scabbard. The irony is that -he was the first to go as the Commander-in-Chief General Mohammad Ayub Khan whisked him away. He left the country and was buried in alien land. The General assumed the mantle of Presidency and got conferred title of Field Marshal. He promulgated a Constitution, with an odious distinction, that it carried his own name in the preamble, known as Constitution of Pakistan, 1962.
49. Not knowing the ethos of the struggle he thought the genius of the people which was his own by training and habit, that the form of government of the country should be Presidential. Of course, he did not realize that a .Presidential form of government is a democratic one and rather difficult to run, as the President has only executive authority, no control over Parliament or Congress and can neither manipulate nor dismiss it for ire or non-cooperation. Budget is to be passed by the Parliament and if ii does not do or obstructs, the President would be helpless. But the Field Marshal provided in his Constitution that he would have all the executive powers as well as full control over the Parliament, even of its dismissal. The net-result was a dictatorial system. The people had the jibe that like the light-house of a town, Faisalabad all roads lead to the Presidency. However, life has its own, limitations.. When he fell ill and could carry no more instead of passing the powers under his own Constitution to the Speaker of the National Assembly he asked the Commander-in- Chief General Mohammad Yahya Khan to perform his constitutional duty, who did it by abrogating the Constitution and dismissing the Assemblies and all, put the country under Martial Law. He held elections for new National Assembly but was not prepared to part with power. Eastern wing rebelled. He tried to supress. The neighbouring country intervened. The Military Commander of the area surrendered. East Pakistan was lost in blood and tears. He was forced by the circumstances to hand over power to the leader of the members of the National Assembly from the Western wing Mr. Zulfiqar Ali Bhutto. The latter first promulgated an Interim Constitution and then got passed with the consent of all the political forces represented in the National Assembly the Constitution of the Islamic Republic of Pakistan, 1973. Having had bitter experience of the past, the Governor General or President dissolving the Parliament, conventions of the parliamentary form of Government were incorporated in the Constitution. It was clearly laid down that the country shall be governed by Parliament through the Prime Minister and the Cabinet. They shall be responsible all the time to the National Assembly and ultimately to the nation. The second principle in the Constitution is that the country shall be a Federation consisting of four Provinces. As a symbol of their unity there shall be a President. The Constitution was in operation for four years only when in 1977 the Chief of the Army Staff who was chosen by the Prime Minister purportedly for loyality to his person, took over the country, put the Constitution in abeyance, dismissed the Government, .Dissolved the Assemblies and imposed Martial Law, himself becoming Chief Martial Law Administrator and little later as President of the country. He hanged the person who had put him in the position. What a life! He ruled the country till 1985 when he got elected people without political affiliations to form a National Assembly. He nominated Mr. Muhammad Khan Juneja as a Prime Minister. He promulgated President Order No. 14 of 1985 Revival of the Constitution of 1973 Order, 1985, making extensive amendments in the Constitution including the power to dissolve the National Assembly and retaining the power to appoint a date for lifting of the Martial Law. The new National Assembly realizing that it is better to have the Constitution revived and Martial Law lifted agreed to adopt the amendments made by the Chief Martial Law Administrator/President managing at the same time to soften the rigors of the President's powers as far as possible, hoping that the sword of Democles shall not strike soon. But they were disappointed when they were packed and the Assembly dissolved in exercise of the amended powers, in the year 1988. He fixed a date for elections of the new Assemblies. But he could not see them through. He died in an air crash with 29 Senior Military Officers, a General and the Ambassador of the United States leaving the nation stunned. His successor under the Constitution, Chairman of the Senate Mr. Ghulam Ishaq Khan, took over as the Acting President. He held the elections on Schedule. The leader of the political party having the majority though not absolute in the National Assembly, Ms. Benazir Bhutto was nominated as Prime Minister. She formed the Government and obtained vote of confidence from the Assembly. It may be noted at this stage that though the action of the late President dismissing the Assemblies was found to be unconstitutional yet the then Assemblies were not restored for the reasons recorded in "Federation of Pakistan v. Haji Saifullah PLD 1989 SC 166. The members of the newly-elected National and Provincial Assemblies elected the acting President as the President. After twenty months, on 6th August, 1990 the President dissolved the National Assembly, and the Governors the Provincial Assemblies. It . Is the order of the President in dissolving the National Assembly which is in question. It reads as follows: DISSOLUTION ORDER "The President having considered the situation in the country, the events that have taken place and the circumstances, and among others for the reasons mentioned below is of the opinion that 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) The utility and efficacy of the National Assembly as a representative institution elected by the people under the Constitution, and its mandate, is defeated by internal dissensions and frictions, persistent and scandalous horse-trading for political gain and furtherance of personal interests, corrupt practices and inducement, in contravention of the Constitution and the law, and by failure to discharge substantive legislative functions other than the adoption of the Finance Bill, and further the National Assembly has lost the confidence of the people.
(b) The Constitution envisages the Federation and the Provinces working within the spheres respectively assigned to them with clearly delineated executive and legislative authority, and with a view to safeguarding the structure of the Federation also contains special provisions of mandatory nature to ensure and protect the autonomy granted to the Provinces, by creating specific constitutional institutions consisting of Federal and Provincial representatives, but the Government of the Federation has wilfully undermined and impaired the working of the Constitutional arrangements and usurped the authority of the Provinces and of such institutions, resulting in discord, confrontation and deadlock, adversely affecting the integrity, solidarity and well-being of Pakistan, in that, inter alia:--
(i) The Council of Common Interests under Article 153, which is responsible only to Parliament, has not been allowed to discharge its Constitutional functions and exercise its powers despite persistent demands of the Provinces and Parliament has also not been allowed to function in this regard as required by Articles 153 and 154, and in relation to Articles 155 and 161.
(ii) The National Finance Commission under Article 160 has never been called to meet and allowed to function, thus blocking mandatory Constitutional processes in the matter of allocation of shares of revenues of the Provinces despite their persistent demands.
(iii) Constitutional powers and functions of the Provinces have been deliberately frustrated by extension of executive authority of the Federation to the Provinces in violation of Article 97 and by the general manner of implementation of the Peoples Programme.
(iv) The Senate, which is representative of the Federating Units under Article 59 and is an integral part of Parliament, has been ridiculed and its constitutional role has been eroded.
(c) Corruption and nepotism in the Federal Government, its functionaries and authorities and Agencies, statutory and other corporations including Banks working under its supervision and control and the holders of representative offices has reached such proportions, that the orderly functioning of the Government in accordance with the provisions of the Constitution including the requirements of the Oath(s) prescribed therein, and the law does no longer carry public faith and credibility and despite being subject to wide public condemnation, the Government has failed to take appropriate action in this behalf.
(d) The Federal Government has failed in its duty under Article 148(3) of the Constitution to protect the Province of Sindh against internal disturbances and to ensure that the Government of that Province is carried on in accordance with the provisions of the Constitution, despite the heavy loss of life and property, the rule of terror in urban and rural areas, riots, arson, dacoities, kidnapping for ransom, politics of violence among citizens and widely condemned failure the Provincial Government and its law enforcing agencies, and also, in this behalf, failed to act under appropriate provisions of the Constitution.
(e) The Government of the Federation has violated the provisions of the Constitution and the law in that:--
(i) The Superior Judiciary has been publicly ridiculed and its integrity attacked and attempts made to impair its independence.
(ii) Authority, resources and agencies of the Government of the Federation including statutory corporations, authorities, and Banks have been misused for political ends and purposes and for personal gains.
(iii) The Civil Services of Pakistan have been undermined by disregarding the provisions of Articles 240 to 242.
(iv) The powers under Article 45 have been exercised by the Government without prior approval of the President.
50. Now therefore, 1, Ghulam Ishaq Khan, President of the Islamic Republic of Pakistan in exercise of the powers conferred on me by clause (2)(b) of Article 58 . Of the Constitution of the Islamic Republic of Pakistan dissolve the National Assembly with immediate effect; and the Prime. Minister and the Cabinet cease to hold office forthwith".
51. 5.The power exercised by the President is with reference to Article 58(2)(b) of the Constitution. In order to understand its efficacy and scope, it is necessary to take note of some of the provisions of the Constitution. It was in the preamble and now in Article 2A of the Constitution that "the State shall exercise its powers through representatives of the people". This clearly laid down that power and authority shall be exercised through the chosen `representatives', not through an individual, however high, may be the President. Then, these chosen representatives have to be of `the people'.
52. The President is not chosen by the people. He is elected by the- members of the Assemblies. He has no direct contact nor the people choose him. Secondly, according to Holy Quran (AI-Amran, Para 4, Ayat 109) the Prophet Muhammad (Peace be upon him) was ordained to consult. Which Muslim ruler can claim more authority not to, consult? The Constitution of Pakistan has mandated in Article 45 "that in exercise of his functions, the President shall act in accordance withthe advice of the Prime Minister and such advice shall be binding on him". In the amended form, about which something will be said later, the provision is that "In the exercise Of his functions, the President shall act in accordance with the advice of the Cabinet or Prime Minister: Provided that the President may require the Cabinet or as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration."
6. When one is required to act in accordance with the advice of another he acts at this peril if he goes against the advice. If the advice of the authorized person is not taken, like that of a doctor by a patient the latter is likely to suffer. Thirdly the power exercised under the amended Article 58(2)
(b) came into existence along with amended Article 41(7) of the Constitution when the Chief Martial Law Administrator/the President had already provided in Presidential Order No.14 of 1985 that he shall appoint a date for lifting of the Martial Law. The amendments had to be made by the National Assembly as which assembly or parliament would have the Martial Law rather than not submit to some amendments. Therefore, while interpreting Article 58(2)(b) this factual background is not to be lost sight of and it is not to be interpreted in a manner that it invests power in the President more than the King or Queen of England possessed even when sun did not set over one or other part of their dominions or territories, nor more than what the President of the most powerful nation in the world possesses. King or Queen of England has not dissolved the Parliament for more than a century without the advico of the Primc Minister. Nor the President of the United States can dissolve the Congress.
53. 7.More importantly it may be noted that the relevant amendments made are unique in nature. For the first time in constitutional history of any country, I think, it was so stated that a named person will be President for such a period. Article 41(7) inserted in the Constitution is to the following effect:- "Notwithstanding anything contained in this Article, or Article 43 or any other Article of the Constitution or any other law, General Muhammad Ziaul Haq, in consequence of the result of the referendum held on the nineteenth day of December, 1984,. Shall become the President of Pakistan on the day of the first meeting of Majlis-e-Shoora (Parliament) in joint sitting summoned after the elections to the Houses of Majlis-e-Shoora (Parliament) and shall hold office for a term of five years from that date, and Article 44 and other provisions of the Constitution shall apply accordingly."
54. 8.This provision is notwithstanding Article 43 which lays down that "the President shall not hold any other office of profit in the service of Pakistan or occupy any other position carrying the right to remuneration for the rendering of services". The President wanted to retain the Office of the Chief of the Army Staff which was the main plank of his authority, so the provision. After the General had become President he was 'to hold office for a term of five years and "other provisions of the Constitution shall apply accordingly". The other provision most vitally connected with the power structure of ruling was the authority to dissolve the National Assembly. It was laid down in the amended Article 58(2) that the President may also dissolve the National Assembly in his discretion where, in his opinion-- "(a) ------------------------------- (b)a situation has arisen in which Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary."
55. 9.Reading the three Articles together it was obvious that the General wanted to become President, retain the base of his power the Command of the Army and also the authority to dissolve the National Assembly according to his discretion. Being the Chief Martial Law Administrator and conditioning the lifting of Martial Law on the amendments to be made by the National Assembly it was but wise of the members of the National Assembly to oblige and get the country out of the clutches of the Martial Law. But the beneficiary of the powers little realized that there is a Being beyond human specie who does not take kindly to arrogation of authority. The General with his companions died in an air crash. Powers acquired or conferred perished in a twinkle. There is no doubt that the power to dissolve the National Assembly was desired by the late President and it was granted to him. Article 41(7) makes it cleat that it is the General, Muhammad Ziaul Haq who becomes President and provisions of the Constitution are to apply `accordingly'. Reality and the letter of law both point to the conclusion that the powers were personal for the President. These perished with his sad demise. Sophistry will not suffice to say that power to dissolve the National Assembly devolved on his successor. Intention and actions had combined together for the late President. There is no doubt about it. If the Divine Will did not permit the late President to complete his mission or tenure, nobody can step into his shoes and put on his mantle. So the relevant amendments lapsed with the life of the late President. No interpretation would be true contrary to the intention and actions of the participants of the amendments. Nor that is advisable as that would strike at the root of the parliamentary system of Government established under the Constitution after much trial and error and loss of half of the country.
56. 10.Clarity of vision is essential. Confusion in thought is fatal. Presidential system was tried under the Field Marshal, resulting in the end of humiliating defeat and loss of half of the country. Past experience had shown that the President and the Prime Minister did not co-exist long constitutionally. A President vested with powers to govern, unless made a dictator, cannot run the affairs of this State as in a Presidential system he will have no control over the legislature, Parliament or Congress and ii is unrealistic to think that the Parliament having control over the purse, will always oblige the President by passing the budget. Even with the ultimate threat of dissolving the National Assembly, the President cannot or could not run the affairs of the country without sending the house Home. How can he do so, if he would have no Democles' sword to wield None--these, if the parliamentary system under the Constitution is not acceptable it may be given up but it is not right or fair to interpret it in a manner that its spirit is swept away under the carpet and the President is asked to hold election within ninety days after dissolving the National Assembly. Nobody can ensure the result of election. If the same Assembly is re-elected with a bang, how embarrassing for him it would be and if the Assembly takes into its head to impeach, how awful the situation would be. Such an hazardous course is not chalked for the President. The risk could be taken by the late President who held office of the Chief of the Army Staff and if the elections were to go away he could reimpose Martial Law. This is not possible for a civilian President under the Constitution. Therefore, I am clear of the view that power under Article 58(2)(b) pertained to the late President and it need not be stretched any further to make the confusion worse C confounded. In conclusion, I would say that historical perspective, vicissitude of constitutional developments and the Constitution as it is does not permit the President to dissolve the National Assembly.
57. 11.Assuming that the authority of the late President to dissolve the National Assembly devolved on his successor-in-office, then Article 58(2) may be referred to. It lays down "Notwithstanding anything contained in clause (2) of the Article 48, the President may also dissolve the National Assembly in his discretion wherein 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."
58. 12.Two points may be noted. Firstly it is the `government of the E Federation', and secondly that it "cannot be carried on in accordance with the provisions of the Constitution", when the President may dissolve the National Assembly. Now, concentrating on the first point it is the `government of the federation' which cannot be carried on. How the Government of the Federation is carried on, Article 90 provides the answer. It is that "(i) The executive authority of the Federation shall vest in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution."
59. Article 91 lays down.
60. "(1)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...
(5) The Prime Minister shall hold office during the pleasure of the President, but the President shall not exercise his powers under this clause unless he is satisfied that the Prime Minister does not command the confidence of the majority of the members of the National Assembly, in which case he shall summon the National Assembly and require the Prime Minister to obtain a vote of confidence from the Assembly."
61. Reading the two Articles together the 'Government of the Federation' is to be carried on by the President with the aid and advice of the Cabinet headed by the Prime Minister. If `the Government of the Federation' is not being carried on in accordance with the Constitution the fault is that of the President and the Cabinet. Why should the National Assembly be dissolved? If there are differences between the President and the Cabinet, the Constitution provides mechanism for their solution. The President may call upon the Prime Minister to perform his/her duties under Article 46. He may ask the Prime Minister if he thinks that the latter has lost confidence of the National Assembly to seek vote of confidence. He may address the two Houses of Parliament and ask the members to see that the Prime Minister acts in accordance with the Constitution. If all his efforts fail, he should think that he may be wrong, than that all the representatives of the people are wrong.
62. 13.The second point is that the Government of the Federation "cannot be carried on in accordance with the Constitution". If the President is to act on the aid and advice of the Cabinet as required by the Constitution, there will be no non-carrying of the Government of the Federation in accordance with the provisions of the Constitution. It is only when President and the Cabinet acting together fail to carry on the Government of the Federation in accordance with the Constitution that the National Assembly can be dissolved. President has not said that he had failed to carry on the Government of the Federation in accordance with the provisions of the Constitution. So it cannot be said that the Government of the Federation could not be carried on in accordance with the provisions of the Constitution. It may also be noted that it is only when the Government of the Federation "cannot be carried on in accordance with the provisions of the Constitution" that the National Assembly can be dissolved. Words to be taken note of are "cannot be carried on", not that the Government is being carried on not efficiently or without any fault. Which Government in the world is being carried on without default? And one has not to forget that the Government had come into being after a long spell of Martial Lacy and it is a developing country. Problems and difficulties are going to be there.
63. Ideal is difficult to achieve and it always goes ahead. Further, the provision is that the Government of the Federation cannot be carried on "in accordance with the Constitution". Where was the breakdown of the Constitution? The provision may come into play only when the Constitutional machinery has completely broken down. Where had it broken down or come to standstill? All constitutional authorities were there and functioning, Presidency, National Legislature, Governors, Provincial Assemblies, Courts etc. If there were defaults or defects, violation of law, these were matters to be attended to by the President and his Cabinet. They had to work in unison. The President cannot throw the bucket and dissolve the National Assembly and calf the nation in twenty months time to go back to polls. Elections cost money and turmoil. Poor country can hardly afford the luxury with no prospectus of any improvements. Exercise of authority or power demands careful, cool assessm ent with foresight.
64. 14.It may be recollected that when on the 6th of August, 1990 the President dissolved the National Assembly, in the two Provinces in which the majority party in the National Assembly had the majority in the Provincial Assemblies, these two were dissolved allegedly with the approval of the President by the respective Governors, and the other two assemblies on the advice of the Chief Minister by the respective Governors. The point to be taken now of is that it is the Federation of Pakistan comprising of four federating units. In a federal form of Government, the Federal institutions on the one hand and institutions in the federating units on the other function in their owns spheres under the Constitution. It does not follow that if the Federal Government is not being carried on in accordance with the Constitution, the provincial governments are also not fixing carried on in accordance with the. Constitution. The fact that all the assemblies were simultaneously dissolved shows that the Constitution was being taken as if it provided a unitary form of Government which obviously it did not do.
65. 15.Another point to be taken note is that the Leader of the Opposition had moved a motion of no- confidence against the Prime Minister. The motion was defeated. Few days earlier than the dissolution, the Leader of the Opposition indicated that another no-confidence motion would be moved. Notwithstanding, the National Assembly was dissolved. Although under amended Article 91(8) of the Constitution, any person can be appointed as a Prime Minister when the Assembly stands dissolved. But to appoint the Leader of the Opposition as a Prime Minister in the circumstances/would show that whole Assembly was not at no fault, so why dissolve the entire body. Discretion to appoint anybody as a Prime Minister during the dissolution of the Assembly may be bald or not expressly circumscribed. But it does not mean that for dissatisfaction with the Leader of the House, the whole House is dissolved and the Leader of the Opposition is appointed Prime Minister. It will not inspire impartiality, prerequisite of the high office of the President.
66. 16.Exercise of high Constitutional authority is not undertaken as one would wish it or for dissatisfaction. One has to be aware that William Blake said; ---The strongest poison ever Known Came fromCaesar---s laurel Crown."
67. Present passes. Constitution basic law should survive lest striking at its root hollows the foundation crumbling the edifice of the State. Therefore, Constitutional authority is to be exercised not with reference to the present affairs of the State but how it is going to affect the affairs of the State in future. Similar is the duty of those who interpret the Constitution. Marshall's judgment in "Marbury v.
68. Radison", 5 U.S. (1 Crauch) 137(1803) determined the course of history in subjecting the Executive authority to judicial review leading the United States to run on democratic lines. Therefore, I am clear of the view that the advice being taken not from the Constitutional authority, the Prime .
69. Minister but from authorities or persons not authorized by the Constitution to tender advice to the President if so taken, or acting on his own, the President fell in error in exercising the power of dissolution of the National Assembly which did not vest in him nor was available in the circumstances.
70. 17.Learned counsel for the appellant urged arguments at length in support of his petition: The learned Attorney-General in his usual suave style justified the order of dissolution. It was a privilege to hear Syed Sharifuddin Pirzada trace the history of the provision from Simon Commission Report.
71. He pointed out that the phrase "the Government cannot be carried on" in accordance with the Constitution was .First used in the said Report. When on the basis of the Report, Government of India Act, 1935 was being debated in the House of Lords in England, extended meanings were assigned to the phrase. But it was made clear on behalf of the Government moving the Bill that the phrase comes into play only when the Constitutional machinery of the Government totally breaks down, not when the Constitutional authorities carrying on the Government are functioning, though not as good as one would wish. The, phrase survived and was used or abused until the Constitution of 1973 when it was dropped because of bitter struggle of the authorities using it on the one hand and the people on the other. When the Chief Martial Law Administrator wanted it to be inserted in the Constitution before he would lift Martial Law, it was resurrected. But it lapsed with the moving figure for whom it was intended, as seen above. Even if it survived the maker, its contours were defined by this Court in the case of `Federation of Pakistan v. Muhammad Saifullah Khan' PLD 1989 SC 166. My learned brother Mr. Justice Nasim Hasan Shah at page 190 of the report took it to mean 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".
72. My learned brother Mr. Justice Shafi-ur-Rehman defined it at pages 212-213 as follows: "The expression "cannot be carried on" sandwiched as it is between "Federal Government" 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 performance or the quantum of the achievement. It concerns itself with the breakdown of the Constitutional mechanism, a stalemate, a deadlock in ensuring the observance of the provisions of the Constitution. The historical perspective in which such provision found a place in our Constitution re-enforces this interpretation".
73. 18.Specious arguments to distinguish or diminish the vitality of the explicit exact language may overshadow its meaning but it cannot suffuse its soul. Sophistry is always available but truth survives in spite of hemlock. Reasons advanced are many, may be weighty. But reasons alone are not enough. The archangel gave reasons for not prostrating before Adam: He was made of fire, Adam of clay. The latter shall shed blood. Nobody ever said that the reasons were not correct. Yet the archangel was expelled from heaven. Why? He disobeyed the Command. The Constitution is to -be obeyed. Not the Institutions provided dismantled by invocation of one provision or the other.
74. Therefore, I am clear of the view that notwithstanding the dissatisfaction of the President with the functioning of the Prime Minister or the Parliament the reasons for dissolving the National Assembly were not good enough under the Constitution, principles previously laid down by the highest Court in the land. It was perhaps lost sight of that if the National and Provincial Assemblies were so bad as to be dissolved, it were these very Assemblies who had not long ago elected the President. Were they good then and had become had so soon? Creature condemning the creator/s does not sound well.
19. Having held that there was no power or authority to dissolve the National Assembly, the next question is whether the National Assembly be restored. It may be noted that when the first ever Assembly was dissolved, its Speaker Maulvi Tamizuddin Khan had challenged the order. When the previous Assembly was dissolved, its restoration was disallowed by me in tote High Court (PLD 1988 Lah. 725) inter alia on the ground that neither the Speaker nor the Leader of the House had challenged the order. Rather they were ready and participating in the ensuing election.
75. Notwithstanding that this time too neither the Speaker of the Assembly, nor the Leader of the House or the Leader of the Opposition had challenged the dissolution. All participated in the forthcoming elections. Leading members of the National Assembly have Leader of the House has become the Leader of the Opposition, no less an eminent position. The Leader of the Opposition can still point out the right course of action. If it is really right, not following it would lead the Government astray to be replaced in course unsteading them can be passed restoring the dissolved Assembly. For these reasons the petition is dismissed.
76. (Sd.)
77. Abdul Shakurul Salam, J.
78. RUSTAM S- SIDHWA, .I--This is a petition by Kh. Ahmad Tariq Rahim petitioner seeking (cave to appeal against the judgment of a Special Bench of the Lahore High Court dated 14-10-1990 dismissing his writ petition filed to challenge the order of the President of Pakistan data) 6-8-1990 dissolving the National Assembly of Pakistan.
79. I have read the leading judgment of my learned brother Shafiur Rahman, J., but since there are various matters which he has not touched in his judgment and there are others where our perceptions differ, it is necessary to express myself separately, which I do so herewith.
80. 2.Raja Muhammad Anwar, Senior Advocate, has argued the case on behalf of the petitioner. He has drawn support from the writ petition and the documents annexed therewith, as also the replication and documents attached therewith. Mr. Aziz A. Munshi, Attorney-General for Pakistan, has argued the case (in behalf of the Federal Government. He has copiously referred to-the written statement filed on behalf of the Government, as apart from a mass of documents filed by the Government in support of its case, including the affidavits of senior officers of Government. Mr. Sharifuddin Pirzada, Senior Advocate, has also argued the case on behalf of the Government and has referred to earlier legislation dealing with the provisions relating to the breakdown of Constitutional machinery. For the great pains taken by all the learned counsel in this case, l am indeed indebted.
81. 3.In order to understand the controversy, it is necessary to understand the nature of our Constitution. The Pakistan Constitution framed in 1973, as amended upto the date of the dissolution of the Assemblies, is basically Federal in character, partaking of the British Parliamentary system, with the executive having the primary responsibility for the formation of the Government policy and its implementation through the process of law, subject to its retaining the confidence of the legislature. The executive has to act subject to the control of the legislature. Under Article 41, the President is the Head of the State and represents the unity of the Republic. Under Article 90, the executive authority of the Federation is vested in the President and is exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution, without prejudice to the right of the Majlise-Shoora (Parliament) from conferring by law functions on authorities other than the President. Under Article 97, the executive authority of the Federation extends to all matters with respect to which the Majlis-e-Shoora (Parliament) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan. Under Article 98, the Majlis-eShoora (Parliament), on the recommendation of the Federal Government, can by law confer functions upon officers or authorities subordinate to the Federal Government. Under Article 91, there is a Cabinet of Ministers, with the Prime Minister at its head, to aid and advise the President in the exercise of his functions. Under Article 48(1), the President in the exercise of his functions, has to act in accordance with the advice of the Cabinet or the Prime Minister; without prejudice to his right under Article 48(2), to act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so. The President is thus a fairly strong constitutional head of the executive, with the real power vesting in the Cabinet and the Prime Minister. Similar position obtains in the Provinces, with the Governor as the head of the executive. Under Article 130, there is a Cabinet of Ministers in each of the Provinces, with the Chief Minister as its head, to aid and advise the Governor in the exercise of his functions. The Cabinet is therefore the guardian knot which binds the legislature to the executive both in the Federation and in the provinces. The Cabinet enjoying majority support in the legislature, controls both the legislative and executive functions. Where they arc agreed on fundamentals and represent the collective will of the nation, they control policy in all its forms. All these provisions, bring out clearly the Federal character of the Constitution, based on the Parliamentary system.
82. 4.Even where the National or a Provincial Assembly is dissolved, the Constitution seeks to maintain the continuity of- the system. Where the President dissolves the National Assembly, he is mandatorily bound under Article 48(5) to fix a date, not later than 90 days from the date of such dissolution, for the holding of the general election to the said Assembly and also to appoint a Care- taker Cabinet. The word "and" between paras (a) and (b) of clause (5) of Article 48 shows that the fixing of the date of the next general election and the appointment of the Care-taker Cabinet arc coextensive with the dissolution of the National Assembly. Where the Governor dissolves the Provincial Assembly, he is mandatorily bound under Article 105(3) to appoint, in his discretion, but with the previous approval of the President, a Care-taker Cabinet. Under Article 224(2), when the National or a Provincial Assembly is dissolved, a general election to the Assembly is mandatorily to be held within a period of ninety days after the dissolution and the results of the election have to be declared not later than fourteen days after the conclusion of the polls. Article48(5) (b) and 224(2) both read together, clearly show that the general elections must be held within ninety days of the dissolution of the National or Provincial Assembly and the date which is to be fixed must be such which brings about the election within this stated period. In Federation of Pakistan v- Muhammad Saifullah Khan (PLD 1989 SC I where the date fixed for the election exceeded by over fifty days the period prescribed, this Court by majority view treated the delay as excusable, though Shafiur Rehman J treated the same as inexcusable and unwarranted.
83. 5.Under Article 48(5)(b), Where the President dissolves the National Assembly;" he has mandatorily to appoint, in his discretion, a Care-taker Cabinet. Under Article 105(3), where the Governor dissolves a Provincial Assembly, lie has mandatorily to appoint, in his discretion, but with the pious approval of the 'President, a Care-taker Cabinet. Under Article 91(8), rev where a National Assembly is dissolved, the Chief Minister or any other Minister can be allowed to continue in his office during the period of dissolution, or any other person can be appointed as Chief Minister or other Minister during such period. Articles ,91(8) and 130(8) thus enable the executive powers to be exercised by the President and the Governor with the aid and advice of interim Care-taker Cabinets, for without such Cabinets their actions would be unconstitutional. The appointment of the Prime Minister form amongst Ministers at the Federal level and the Chief Minister from amongst Ministers at' the Provincial level is mandatory, for a Care-takerCabinet can only be presided over by them and a Cabinet is not legally complete without them. The Care-taker Cabinet cannot be presided over by the President or the Governor. The Constitutional oaths which the Ministers make before assuming office also contain a provision by which they are bound not to reveal internal secrets, unless specially permitted by the Prime Minister or the Chief Minister. The object of the Care-taker Cabinet is to fill atemporary void, so that it may conduct day to day administration, without getting involved in matters of substantive importance or policy or subjects having far-reaching effects, other than during an emergency or some urgency, till the new Government is installed. Above all, it is not supposed to influence the elections or do or cause to be done anything whereby which Government machinery or funds are channelled in favour of any political party. Perhaps its most important duty is to ensure free, fair and impartial elections, the said function being inherent in the very purpose for which it is constituted. All these provisions, cumulatively show that no sootier the Federal, or the Provincial Assembly is dissolved, that Care-taker Cabinets have .To be immediately installed, in keeping with the Parliamentary traditions of a Cabinet system of Government,. With the Prime Minister or Chief Minister at its head. This is nothing more than, an extension of the principle of continued Parliamentary responsibility, which in the Parliamentary system. In Federation of .Pakistan v. Muhammad Saifullah Khan ,(supra), where a Care-taker Cabinet at the federal level was installed, without a Prime Minister, this Court took serious, notice of the omission and held that the Constitutional provisions clearly showed that the office of the. Prime Minister was necessary at all times for running the affairs of the country and that he should have been appointed J to head the Care-taker, .Cabinet.
84. Shafiur Rahman J, treated the omission as altering the very character of the, Constitution from a Parliamentary democracy: to a Presidential system of . Government, which omission he felt the Courts ' should neither countenance nor condone.
85. 6.Where the Care-taker Cabinet is not to be composed totally from theold Ministers but a new or mixed set has to be appointed, from out of the elected members, it is of the utmost importance that they arc totally neutral persons possessing the highest integrity so that the elections can be held in an atmosphere of impartiality and the same are not influenced in any way in favour of any political party. The appointment of members of the Care-taker Cabinet is strictly in the discretion of the President or the Governor under Article 48(5) or Article 105(3), which is not within the scope of judicial review, but the appointment of .Members known for their open hostility to the last party in power, or those likely to .Subvert the election, would border on breach of impartiality and severely injure the democratic process. Impeccable impartiality demands that the President and Governor- remain free from all political colour and affiliation and that the elections held arc free and fair as can even throw up the dismissal party in power-Both the President and Governor are heavily burdened with onerous duties and their chambers are no bed of~roses. They perform their duties not for the glory of the office, but for the honour and dignity of the State.
86. 7.Turning back to the Constitution it .Cannot be denied, that by changes which were inter alia effected in Articles 46, 48, 50, 56, 58,10, 75, 90 and 91 of the original 1973 Constitution by the Revival of the Constitution of 1973 Order, 1985 (P.O. 14 of 1985) and the Constitution (Eighth Amendment)
87. Act, XVIII of 1985, certain rights and powers hitherto not with the President were vested in him. Some of these have been listed by me in pare 7 of my judgment in Muhammad Sharif v. Federation of Pakistan (PLD 1988 Lah. 725 at 768). In keeping with the desire of the then President "to share powers" with the Parliament, the said amendments- were accepted by the then Parliament; both the President and the Parliament sharing-the united view that the Federal and Parliamentary character of the Constitution would be preserved, including the Parliamentary conventions surrounding them: It is true that the elected representatives then had no 'choice but to accept the lifting of martial law and 'the restoration of democracy on whatever 'favourable terms were offered or could be extracted. The President however secured for himself come inherent and some very effective powers which could remain dormant, but which he could effectively use when required. In short, he created a "power base" in favour of his office, not previously provided by the 1973 Constitution, thus obliterating his position as a figure or titular head and replacing it as one almost as effective, if not equal in power as the Prime Minister.
88. 8.A few words may be stated. About the, position. Of the President. The President, as the Head of the State, represents the unity of. The Republic. He is thus placed above the party. He is. The benign moderator and, the symbol of the impartial dignity of the State. He is entitled to certain communications and information, which is the duty of the Prime Minister to furnish, with power to submit for the consideration of the Cabinet any matter on which a decision may have been taken but which has not been considered by the Cabinet. He can call upon the Cabinet to reconsider any, advice tendered or consider such advice. He has power to act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so, with entitlement to decide whether he is so empowered. He has power to refer any matter of national importance to a referendum. He has power to send messages to either House for their consideration. He has the right to address both Houses assembled together at the commencement of each Session of Parliament. He has the power to dissolve the National Assembly if, 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. He has the power inter alia to appoint the Chairman of the Joint Chief's of Staff Commitee and the three Chiefs of the Army Staff, Naval Staff and Air Force Staff. He is at the apex, as the executive authority of the Federation, which is vested in him, is exercised by him directly or through officers subordinate to him. He is to be aided and advised in the exercise of his functions by the Cabinet of Ministers, with the Prime Minister at its head. In the exercise of his functions, he has to act in accordance with the advice of the Cabinet or the Prime Minister; except in cases where he is obliged to act in his discretion. The President is therefore no less powerful than the Prime Minister.
89. 9.The basic character of the Constitution is now a mix. It , is not Presidential; it was never meant to be. It is not totally Parliamentary; as it was intended:
10. This amalgam of powers can be viewed from two angles. One view-The President, by virtue of a host of Articles, can interfere by advice and recommend change and correction. The President has effective power to make himself felt and secure attention and compliance of his views. His invisible presence is no less effective than his presence. The power is thus divided between the President and the Prime Minister. It is the case of two competing holders of power at the apex. The President thus has effective power greater than the freedom to act on the three rights of the Crown which King George V once expressed he had and of which Bagehot spoke, namely; "The right to be consulted, the right to encourage and the right to warn". The President's intercession can thus be treated as impeding the functioning of anything in the nature of a purely parliamentary Cabinet form of Government. The other view--The President can be treated as the repository of a complementary power, so very much needed to neutralise discord, preserve unity and restrain the political will from breaking its conventional frontiers. An experienced and wise President, having served as a member of Parliament for a number of years, could provide the much needed guidance and direction as a benign moderator and democratic ombudsman. Where a breakdown of Parliamentary discipline, ethics and morality have set in, such a President could perhaps be the last bulwark between chaos and utter disaster. Like two jets in a carburettor, the President and the Prime Minister have to synchronise their working, to provide smooth functioning of the democratic process. Where both live by the book and rule of law, they cannot provide any scope for discord, and there should be none, for no two honest persons can differ over that which is inherently true and correct. It is only when the Constitution or the rule of law is flouted, that disagreement can set in and where the system totally fails, disagreements and disharmony become symbols of political hatred and discord. t An enlightened Parliament alone will have to answer the question whether the present system is inherently defective or intrinsically sound and can be allowed to work.
90. 11.One may now turn to the office of the President in the context of the party that puts him into power. A President may be appointed by the major political party in power holding majority votes in the two Houses and the Provincial Assemblies. In such a case it is very likely that he would be a member of the major political party in power and a person thus sharing their political views. He may also be a person not belonging to the major political party, but put up as a joint candidate by a number of political parties, in which case he would be treated as in a position of trust, impliedly obligated to favourably share their political consensus. In either case, being a symbol of impartiality and unity, he would have to transcend all political, private or personal interests and conduct himself with dignity and grace. In matters where he has to exercise his functions with the aid and advice of the Cabinet, it is expected he would act on the advice tendered. Where he feels inclined to slightly deviate, but not differ, then one would assume he has worked out, with the tacit consent of the Cabinet or the Prime Minister, a proposal nearest and most appropriate as an alternative to that presented, which can then be accepted by him. Parliamentary practice and convention do not permit the President to unnecessarily, unreasonably or rashly differ, so as to create cleavage or polarity, which may affect the smooth functioning of the Government. Where, however, the President feels strongly compelled to differ, only the highest considerations of fairplay, equity or justice would justify him to take such a course, in which case, I would imagine, the Prime Minister or the Cabinet would bow down, more out of respect for the higher considerations involved, rather than the enforcement of their will. In the category of cases where the President is obliged to act in his discretion according to the Constitution, he would be within his legal rights, on opinion properly and objectively formed in that respect, to exercise his functions without the aid or advice of the Cabinet or the Prime Minister, though it is inconceivable that he would not have examined the aid proffered or advice tendered by the Cabinet,' if any. However, .Within the confines of confidentiality, the unseemly would have given place to order, dispute to agreement and disharmony to consensus, so that outwardly all actions conform to the requirements of the Constitution or appear in conformity with- Parliamentary practice and procedure.
91. 12.I may now turn to the matter in hand. The history of the provisions relating to the failure of the Constitutional machinery as contained in Articles 58(2)(b) and 112(2)(b) of the Pakistan Constitution, 1973 can be traced to the Government of India Act, 1935. Section 45 of the said Act provided for failure of the Constitutional machinery in the Federation and section 93 provided for such failure in the Provinces. The said sections inter alia provided that if at any time the Governor General in the case of the Federation or Governor in the case of Province was satisfied that a situation had arisen in which the Government of the Federation or a Province could not be carried on in accordance with the provisions of the Act, the Governor General or the Governor concerned could, by proclamation, declare that his functions would to such extent as were specified in the proclamation, be exercised by him in his discretion, or assume to himself all or any of the powers vested in or exercisable by any Federal or Provincial body concerned or authority. H.M. Seervai in his book "Constitutional Law of India", 2nd Edition, Vol. III at page 1778, mentions that these provisions, as would appear from the debate that took place in the House of Lords, were enacted to prevent internal subversion, because one section of the Congress Party had declared its intention to enter the Legislatures only in order to wreck them from within, since they fell far short of the Party's demand for full self-Government. In the debate on the Bill, the Marquess of Lothian desired to add the following words to para (1) of section 45-- "or the subversion of the institutions set up by this Act", so as to arm the Governor General with powers to intervene in the event of any attempt being made to subvert the principles of responsible Government and substitute for them some form of party dictatorship. However, the proposed amendment was withdrawn on the assurance of Marquess of Zetland that the, Governor General would be able to deal with such a matter under section 45. Sections 45 and 93 appeared in separate Chapters in the 1935 Act headed "Provisions in case of failure of Constitutional Machinery". The said two sections were omitted after Pakistan came into being in 1947. Later Constitutional documents of 1956, 1962, 1972 and 1973 did not incorporate provisions .To deal with failure of Constitutional machinery as provided in the 1935 Act.
92. It was, not till the Revival of the Constitution of 1973 Order, 1985 (P.O. 14 of 1985) and the Constitution (8th Amendment) Act, XVIII of 1985, were passed that such provisions found their way in the 1973 Constitution. The present Articles 58(2)(b) and 112(2)(b), which in some measure reproduce the language of sections 45 and 93 of the old Government of India Act, 1935, enable both the Federation and the Provinces to deal with cases of failure of Constitutional machinery and to thereby ensure that their respective Governments are carried on in accordance with the provisions of the I Constitution.
93. 13.Para. (b) of clause (2) of Article 58 and para (b) of clause (2) of Article 112 of the Constitution basically cover cases of failure of Constitutional machinery. Though the headings of these Articles do not refer to this fact, but these clauses cover this subject. This is apparent when one reads the heading to Article 234, which reads : "Power to issue Proclamation in case of failure of Constitutional machinery in a Province". This section deals with the Province not being able to carry on its government in accordance with the provisions of the Constitution. The ultimate object of Articles 58(2)(b) and 112(2)(b) is to restore representative Government at the Federal or Provincial level.
94. Article 112(2)(b) is not intended to cover cases dealing with external or internal aggression, for which Article 232 exists.
95. 14.Articles 58(2)(b) and 112(2)(b) refer to situations which have arisen in which the Government cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. The word "cannot" presupposes a Constitutional inability in the nature of a breakdown or dislocation. The word "Constitution" obviously means the Constitution of the Islamic Republic of Pakistan and not the other laws of Pakistan. The words "and an appeal to the electorate is necessary" highlight the breakdown to be of such a magnitude that an appeal to the electorate is perhaps the only remedy to the situation. Taking the case at the strictest level, one would imagine that these provisions become applicable when a breakdown has actually occurred or is on the very brink of happening and that the level of requirement is beyond the test of imminence and that the transgression is of such a magnitude that nothing short of an appeal to the electorate is necessary. Should the provisions be considered strictly as to even exclude the imminence of danger from its parameters or exclude circumscribed safeguards which can be considered or provided to preclude arbitrariness in their application. Successive Governments which run by the book, have respect for law and order and are free from corruption, would invariably set a trend so that these provisions could be strictly construed. However, if successive Governments do not carry on their functions in accordance with the provisions of the Constitution, have little respect for the rule of law and are immersed in corruption, they would invariably set a trend requiring the rigidity to be scaled down whilst interpreting these provisions. Again, if too stringent tests are applied, then the situation of 1977 may repeat itself with the President holding out for a total collapse and the Martial Law stepping in for failure on his part to control imminent breakdown. I would not however like to go down on the record a justifying an interpretation which varies with every change in the tone of our political progress or experience. The wording of the two provisions are sufficient to admit of a flexible approach either way and, without being dogmatic in interpreting these provisions, the facts of the case. In the background of the overall situation and political climate then prevailing and the reasons leading to the breakdown, would, all taken together, determine what the correct approach should be.
96. 15.Articles 58 (2) (b) and 112 (2) (b) are oppressive provisions. M.H. Beg. CJ., whilst interpreting a similar provision of the Indian Constitution (Article. 356) on the State of Rajasthan's case (AIR 1977 S.C. 1361 at para 40), held the same to be both preventive and curative. The same position obtains for these two provisions in our Constitution. Preventive, so as to prevent failure of Constitutional machinery taking place by nipping in the bud a breakdown that is imminent. Curative. So as to mend the ill effects of a breakdown that has occurred. The provision can be applied by the Federation if a Province was to refuse to carry out the directions of the Federation given in exercise of such powers conferred on the Federation by the Constitution. Since there exist a large number of matters on which the Federation is competent to give directions, one would imagine that in all cases this provision could be applied to meet such situations. The words "cannot be carried on in accordance with the provisions of the Constitution" could also cover non-compliance of almost every provision of the Constitution. But in applying these provisions, one must not forget our. Own retarded legislative experience, which has operated in a field where discipline has been loose, the rule of law somewhat lax and accountability sketchy and non-existent. To apply these provisions in a sweeping manner would be creating Constitutional autocracy and retarding the somewhat slow development of the democratic process which has begun and which has to be nursed through its formative years. One cannot overlook the fact that the electorate is still be smirched in illiteracy and ignorance and the elected representatives have yet to find their class. Half of the life of this country has been under Martial Law and the other half has been `under a Presidential system and a variety of Parliamentary systems of Government under an assortment of Constitutional documents, with questionable dismissals of Governments for political gain and power, subversion of the Constitution and rigged and politically influenced elections being in some general measure the miserable lot of this nascent country. To apply sophisticated British standards, whilst appraising our Constitution, would be to do injustice to an infant system which yet has not passed through its teething troubles. In England, both the electorate and the elected representatives operate at highly educated and intelligent levels of awareness and consciousness to the political process. The Indians, rough sustained experience, are finding their levels. To apply all the best of sophisticated standards that one can find in text-books to understand the working of different provisions of our Constitution, would be to create doubts and difficulty in the minds of those who have to run the system and are not highly experienced. With this background, one would have to act carefully when appraising a case under Article 58 (2)(b), which relates to the dissolution of a National Assembly, and a case under Article 112 (2) (b), which deals with the dissolution of a .Provincial Assembly. In respect of the latter, the range is somewhat large, as it incorporates the failure of a Provincial Government to carry out directions issued by the Federal. Government in the exercise of its powers under the Constitution, where the Court may find difficulty in finding grounds to limit its sweeping range, but barring such a case under Article 112 (2) (b) specifically relating to the failure of a Provincial Government in carrying out the directions of the Federal Government, these provisions, i.e. Articles 58 (2) (b) and 112 (2) (b), in keeping with the spirit of balance and restraint, would have to be construed in their circumscribed sense to cover only cases of failure or breakdown of Constitutional machinery, or else it would lead to Constitutional dictatorship. To hold that because a particular provision of the Constitution was not complied with, the National Y Assembly could be dissolved under Article 58(2)(b) of the Constitution, would amount to an abuse of power. Unless such a violation independently was so grave that a Court could come to no other conclusion but that it alone directly led to the breakdown of the functional working of the Government, it would not constitute a valid ground.
97. 16.The main question that arises is when it can be said that a situation has arisen in which the Government of the Federation or a Province cannot be carried on in accordance with the provisions of the Constitution. In Muhammad Sharif v. Federation of Pakistan (PLD 1988 Lah 725 at 777), I had the opportunity to examine this matter in respect of the dissolution of the National Assembly, where I stated inter alia:- "The expression "Government of the Federation" is not limited to any one particular function, such as the executive, the legislative, or the judicial, but includes the whole functioning of the Federal Government in all its ramifications. It cannot be forgotten that sub-clauses (a) and (b) of clause
(2) are juxtaposed together and therefore sub-clause (b) has to be read in harmony with the intention behind sub-clause (a), in short whether a political issue has arisen demanding the ascertainment of the will of the people as regards the continuance of the National Assembly. Thus, where the National Assembly is beset with internal dissensions and problems and the party allegedly in power does not have a clear majority, or having tenuous support from its members, is not able to carry on the functions of the Government with confidence, and is avoiding to take important decisions, which require to be taken, for fear that it may be outvoted, in case a debate is held in respect thereof, a situation can be stated to have arisen in which the Government of the Federation, cannot be carried on in accordance with the provisions of the Constitution. A few further instances can also be given, such as, where the Government has been defeated in the Assembly and the Prime Minister does not want to step down, or political groupings are such that even attempts by the President to form a coalition Government and get a working majority have not been successful and no alternative Government can be formed."
98. In that case I was dealing with the case of a majority party having undisputed majority seats and voting strength, which was firmly in the saddle, running its affairs smoothly and carrying on the functions of the Government with confidence. The situations visualised above relating to failure of Constitutional machinery were therefore given in the context of that case. However, when the said case travelled to the Supreme Court, this Court, by majority view in the Federation of Pakistan v.
99. Muhammad Saifullah Khan (PLD 1989 S.C. 166), held that unless it could be shown that the machinery of the Government had broken down completely, its authority eroded and the Government could not be carried on in accordance with the provisions of the Constitution, dissolution could not be ordered. At another place it held that unless the machinery of the Government of the Federation had come to a standstill or such a breakdown had occurred therein which prevented the orderly functioning of the Constitution, dissolution could not be ordered. With respect, I would submit that the test laid down is too strict and rigid. -It forgets that the provision is also preventive. One does not have to wait till the whole machinery of the Government collapses or comes to a standstill or so serious a breakdown occurs which prevents the orderly functioning of the Government, before ordering a dissolution. What is required is that the breakdown is imminent, as partial dislocation has begun, or the breakdown has actually taken place and as a last resort interference is required to ultimately restore representative Government. Each case should therefore be left to be dealt with on its own merit. There could be many situations which could lead to or where there is an actual failure of Constitutional machinery, such as where the party in power having tenuous support from its members, is not able to carry on the functions of the Government effectively, or a deliberate deadlock created by a party or a group of parties or deadlock arising from an indecisive electoral verdict has constantly impaired or made the smooth running of the Government practically impossible, or where no party in the legislature is in a position to form a Government, or the party in power is guilty of or attempting internal subversion, or where a Government is being continuously conducted in utter disregard of the Constitution, or there is a mass uprising or civil disturbance or complete breakdown of law and order due to public opinion being against the party in power at the Federal or Provincial level. Apart from assuming such situations can arise, it would not be proper to lay down any parameters or tests to determine under what circumstances this Court would accept a given case as one falling in the category of breakdown of Constitutional machinery, other than deal with each case on its own merits as and when it comes up on the basis of material placed before the Court to show what facts were before the President or the Governor when he formed the opinion -and whether the same had a proper nexus with the requirements of the Constitutional provision.
100. 17.Whilst stating with some diffidence the types of situations where the power can be exercised, it must be stated that this power is meant to be used by the President impartially and objectively and only as a last resort to restore some balance and order in the Government, within the compass of established Parliamentary practice, and not in a way as may give the impression that it is to displace a political party in power or to rob the Federation or the Provinces of their autonomy to rule within the respective spheres allowed to them by the Constitution. The exercise of various powers under the Constitution does not guarantee that they will be exercised correctly, or that the elected representatives at the Federal or the Provincial level will perform their functions free from all human or legal errors and defects. All Government actions are not free from catastrophic errors of judgment or. Dismal failures of action. The functional ability of a ruling party to governdoes not merely fail if some provision of the Constitution is violated or not performed or ill performed. With political strategy and choices, in a house divided between many political parties, being mauled or mutilated by conflicting interests, it may not be possible to take even simple decisions.
18. In the Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166 this Court happened to consider the following grounds given by the President in his order justifying the dissolution of the National Assembly, namely;
(1) that the objects and purposes for which the National Assembly had been elected had not been fulfilled;
(2) that law and order in the country had broken down to an alarming extent resulting in tragic loss of innumerable valuable lives as well as loss to property;
(3) that the life, property, honour and security of the citizens of Pakistan had been rendered totally unsafe; and
(4) that the integrity and ideology of Pakistan had. Been seriously endangered; all of which it found as having no nexus with the breakdown of the Constitutional machinery or as justifying the dissolution of the National Assembly.
101. 19.The total material presented to the Court showing the difficulty of the party in power having tenuous supports from its members, in not being able to carry on the functions of the Government with .Confidence and responsibility, the deliberate deadlock created by a party or group of parties or deadlock arising from an indecisive electoral verdict or some other situation constantly impairing or making the smooth running of the Government practically impossible, or no party in the legislature being in a position to form the Government, internal subversion attributable to the party in power, the continuous running of the Government in utter disregard of the Constitution, the total rejection by the people of the party in power exemplified by continuous mass processions, strikes and unrest on a national or provincial scale, are basically situations which have a nexus with the failure of the Constitutional machinery. Other stray, or a number of, violations of the Constitution unless by themselves so grave that a Court could come to no other conclusion but that they alone directly led to the breakdown of the functional working of the Government, would not constitute valid grounds. However, where one of the basic situations constituting breakdown of Constitutional machinery, as. Stated above, is present, violations of the Constitution, where they have contributed to or been the cause of the breakdown, could be treated as valid supportive factors to the decision. Non-compliance of general law, failure to hold or call meetings under the provisions of the general law, misuse of the authority or resources of the Federation or of the Provinces or of statutory or autonomous bodies, unauthorised or irregular interference in Service matters and disruption in their regular and orderly working, some failure to maintain law and order; or the resultant effects arising, from such situation's, such as the climate of uncertainty if any created thereby, the sense of insecurity created at different levels of administration, the rejection by the people of some actions of the party in power, creation of some threats to law and order, the weakening of the judicial process, would not normally provide grounds for action under Articles 58(2)(b) or of the Constitution though they may, with other factors, provide to the Court the total picture " showing some of the other matters that attended the breakdown, or to show the resultant effects arising therefrom. This Court cannot sit in appeal over a dissolution order or substitute its findings for the opinion of the President, but a dividing line would have to be kept in mind between certain basic situations which can be treated as leading to the breakdown of the Constitutional machinery and as having nexus with the provisions of the two Articles of the Constitution that provide for dissolution, strong Constitutional violations which the Courts may hold as directly leading to the breakdown of the functional working of the Government and other peripheral Constitutional violations which contribute to or may be the cause of the breakdown and can be used as supportive factors where basic situations exist. This is apart from the question of quantum or sufficiency of the material, over which this Court has no concern.
102. 20.Before dealing with the merits of the case it is necessary to decide a preliminary objection raised by -the learned counsel for the petitioner, namely, ` whether if one or more of the grounds which were the basis of the opinion of the President were not well founded, the order could be struck down as a I B whole, or could be sustained on the remaining grounds. In this connection the learned counsel has referred to the observations of. The learned Chief Justice in the case of Khawaja Muhammad Sharif v. Federation of Pakistan (PLD 1988 Lah. 725), which he submits were approved by the Supreme Court of Pakistan in Haji Saifullah Khan's case (PLD 1989 S.C. 166), apart from other cases on the same subject such as Keshave Talpade v. Emperor (AIR 1943 F.C. 1), Government of West Pakistan v. Haider Bux Jatoi (PLD 1968 S.C. 210) and some others. So far as where Khawaja Muhammad Sharil's case (supra) is concerned, the view of the learned Chief Justice was not shared by the other Judges and this Court in Haji Saifullah Khan's case (supra) also did not support the said view. Regarding the view stated in Keshave Talpade's case, Haider Bux Jatoi's case and some others, the same were in respect of detention matters where it is possible to form the opinion that in case one or more of the grounds which are the basis of the opinion are non-existent or not well founded, the whole order can be struck down, as it is not possible to assess how much of the faulty or non-existent grounds have played in the formation of the opinion.
103. However, Mr. Justice Muhammad Munir, the then Chief Justice of the Lahore High Court, in Rafiq Ahmad v. Crown (PLD 1.951 Lah 1'7), while. Dealing with a habeas corpus petition, doubted the authenticity of the above view. The Indian Supreme Court in a number of cases, more particularly Suran Singh v. State of Punjab (AIR 1976 S.C. 232), has also departed from the view taken in Keshave Talpade's case. The opinion formed by the President under Article 58(2)(b) is under a Constitutional provision. The rule with regard to detention matters cannot be applied to such a case to strike down the whole order of the President on the ground that one or more of the grounds which were considered by him when forming his opinion were not well founded or non-existent, while the remaining grounds, any of which could have been a good reason for the dissolution, were not individually or collectively good reasons on which he could have formed his opinion. It would amount to substituting the opinion of the Court for that of the President, which cannot be permitted. I would, therefore, hold that this preliminary objection has no merit and deserves to be rejected.
104. 21.I would now first turn to the main ground given by the President for the dissolution of the National Assembly, namely, that the utility and efficacy of the National Assembly had been defeated by internal dissension and frictions and by failure to discharge substantive legislative functions, other than the adoption of the Finance Bill, and further that the National Assembly had lost the confidence of the people. The learned Judges of the High Court came to the conclusion from the material brought on the record that the National Assembly had failed to carry out any substantial legislative work, that during its twenty months' tenure, out of about fifty Bills and Ordinances, only fifteen could be passed by the Parliament and that cases, some of which were very important, like the Shariah Bill, could not be processed and were allowed to lapse. The learned Judges also found that since the majority of the members of the Senate were members of the Combined Opposition, this prevented the Coalition Government to carry on legislative business, which fact had also been echoed by the then Attorney-General in his Press statement. The learned Judges also observed that the Pakistan Peoples Party had only two members in the Senate, that in the National Assembly the said Party did not have a comfortable majority, that the Coalition Government had retained a hostile attitude against the Senate and that political confrontation with two of the federating units had made it practically impossible for it to carry out any legislative business, as there was no likelihood of any Bill sponsored by the Government being passed in the joint Session of the Parliament for lack of majority.
105. 22.On behalf of Khawaja Tariq Rahim petitioner it is submitted that there were no internal dissensions and frictions within the Assembly, that dissent and healthy friction is a part of democracy, that no House could be dissolved on that account and if there was any friction, it was caused by the Combined Opposition Parties who were out to dislodge the Coalition Government at all costs, whose members were benefited after the dissolution by being made Ministers in the Care-taker Cabinets at the Centre and in the Provinces. It is further submitted that during the twenty months' rule of the Coalition Government, fifteen Acts were passed, including the Finance Acts, and that therefore substantive legislation was done. It is also contended that Parliament passed more laws in one year than in the three years of General Ziaul Haq's regime. The learned Attorney-General supports the findings of the High Court. He has referred to documentation filed by the Federal Government in support of his case.
106. 23.The view formed by the learned Judges of the High Court is not without substance. Out of fifty Ordinances and Bills presented before the National Assembly, only fifteen could be passed by the Parliament. It appears that amongst fifteen Acts that were passed during the Coalition regime, almost all were amendment Acts, whilst the finance legislation not having to be sent to the Senate under Article 73 (1), directly came to the President for his assent. Irrespective of the question as to which of the two parties took up a hostile attitude against the other, the-fact remains that open political confrontation and polarisation between the members of the Coalition Party and the Combined Opposition, which was manifest in the proceedings of both the National Assembly and the Senate, was such that it incapacitated the Coalition Government's ability to perform its primary function of legislation. Though the Pakistan Peoples Party was the single largest party at the Centre, it did not have an overall majority in the National Assembly. The Pakistan Peoples Party had its Governments. In Sindh and North-West Frontier Province, but not in the Punjab and Balochistan. The confrontation between the Federal Government, on the one hand, and the two Provincial Governments of the Punjab and Balochistan, on the other, continued unabated. The Senate was.
107. Almost totally with the Combined Opposition. It remained and acted under strong political compulsions. It appears that on 6-12-1989, the President, whilst addressing the joint Session of the Parliament, highlighted the problems and performance of the Parliament and the Government. In view of the ingrained polarised atmosphere, there appeared little hope for any change. Functional dislocation of the Constitutional machinery had set in. It was a basic situation leading to the breakdown of the Constitutional machinery and one having a direct nexus with Article 58(2)(b). If the President desired to take action to restore a healthier Government, by placing the matter in the hands of the electorate, so that they, as the Political Sovereign, could choose their elected representatives once again to constitute a stabler Government, the action was neither illegal nor unconstitutional.
108. 24.This then brings into focus certain connected circumstances which are stated to have caused the breakdown, as is referred to by the President, namely, horse-trading to win over members of the Assemblies and corruption, inducement, nepotism and measures taken to prevent defection and/or to win over members from the other side, in contravention of Constitution and law, which had assumed prominence. The learned Judges of the High Court found from the material on the record that these malpractices were perpetrated to win over the members of the Assemblies by inducement, that those that defected were ostensibly rewarded, that this exercise gave rise to corruption, horse-trading and misuse of public funds running into crores of rupees and this posed a serious threat to the public interest and to the Coalition Government and that the national institutions began to crumble. The learned Judges also .Held that to foil the move of the Combined Opposition, the Coalition Government transported its members of the National Assembly to Swat, and that they were made hostages and not allowed to contact any other member of the Assembly, that they were brought to the House when the no-confidence motion to be tabled against the Prime Minister was put to vote and that by this device the members were prevented to freely exercise their right of vote and the ruling party succeeded in frustrating the no-confidence motion.
109. The learned Judges also came to the conclusion that some of the members of the National Assembly, who were instrumental in the defeat of the no-confidence motion against the Prime Minister, were immediately thereafter rewarded by being appointed Ministers or Ministers of State and that some of these persons were earlier actually signatories to the no-confidence motion.
110. They also found that huge amounts from the Secret Service Fund had been disbursed to various Ministers during the days of the no-confidence, motion and during the days when the election of the Prime Minister of Azad Kashmir was held.
111. 25.On behalf of the petitioner it is submitted that defection and winning over of members is a part of the normal democratic. Process, that those members who feel that the party with which they are aligned has deviated from its platform or has materially changed its programme, have the freedom to leave, that members of the opposite party are wooed to join their party on the basis of a better programme being offered by them in the national interest, that the Coalition Party did no more than permit such members as were willing to join them to do so, that it victimised none nor bribed any to join their fold, that the Secret Service Fund was not used to bribe members to join them, but for genuine national purposes, and that if there was any horse-trading it was the present Government in power which had and is still indulging in it flagrantly and has thereby won over its members. It is submitted that there was no misuse of moneys from Secret Service Fund, particularly in view of the affidavits furnished by the former Prime Minister, Ms. Benazir Bhutto, and her Adviser, Major-General (Rid.) Nasirullah Babar and others and the explanation offered by Major-General (Rtd.) Nasirullah Babar in the Chamber was sufficient to dispel all doubts. The learned Attorney-General relies upon documents filed by the Federation in support of its case, more particularly about disbursement of Secret Service Fund and relies upon the findings recorded by the High Court.
112. 26.Coming to the question of defection and horse-trading, the position is not so easy as one would imagine. Defection means the change of party allegiance or loyalty by a legislator, i.e. Leaving one political party and joining another. Where defections are few, they retain their character, as such; where they are large and en-bloc, they assume the character of a "split", i.e. a break of the party into two, the smaller being called "the splinter group" or by other catchy names. In view of the Parliamentary form of Government enshrined in the Pakistan Constitution, which is founded on a party system, it is essential that the right of dissent, as much as the freedom of speech, is preserved and protected for the stability and smooth functioning of the system. The right of freedom of speech of a member of Parliament is preserved and guaranteed by Article 66(1), subject to the Constitution and the rules of procedure as may be prescribed by Parliament, and of a Member of a Provincial Assembly by Article 127 read with-Article 66(1), subject to the Constitution and the rules of procedure as may be prescribed by the Provincial Assembly. In common with an ordinary citizen, a legislator has the right of freedom of speech and expression under Article 19, subject to the reasonable restrictions stated therein. The ordinary citizen cannot exercise the said right in the legislature, as it is forbidden to him by the rules of the legislature, whereas the legislator, by being elected thereto, acquires the right to enter it and to exercise the said right in the performance and discharge of his duties. The fundamental right of speech and expression of a legislator under Articles 66(1) and 127 is of no less a quality and effect as that of an ordinary citizen under Article 19; in fact it is specially tailored for his need and is qualitative and equally effective, if not greater. The freedom of speech entitles the legislator to vote according to his conscience and to express his views freely and openly on all important matters, other than those on which there is a Constitutional bar. Any regimentation of or restriction on the exercise of this right by a Code of Conduct or law, would interfere with the performance of his duty, if not render him soulless and conscienceless. Where a legislator comes on a party ticket, he has a commitment to both his party and his electorate to abide by the policies articulated by his party and to also support that party.
113. Between his duty to support the party and its policies, on the one hand, and to act rightly in the best interest of his electorate according to his conviction, on the other, he may be forced by the weight of conscience to oppose or not to vote on a measure, or to totally (cave his party and join another. Up to what limit defection remains acceptable or assailable with permissible political behaviour, or when it becomes unacceptable, is not easy to define. An independent candidate usually comes with no political programme. Other than a claim to act rightly on all matters in the best interest of the nation and his constituency-. A party candidate is restricted to his party's programme. But programmes and policies keep changing with grouping. Thus, the independent member may not seriously face a charge of defection if he were to ally himself with a party, but the member coming on a party ticket would most assuredly find himself in breach of trust with his voters. And whilst all forms of defection must be abhorred as violative of the Islamic spirit that binds a man to his word, such transgression on the part of a legislator must be all the more looked down upon as a serious breach of the authority reposed in him by Allah to represent his constituency on the basis of the sacred trust reposed by them in him. By defection he basically violates the very spirit of the teachings and requirements of Islam, under which he is ordained to act, and such an act can only be treated as a negation of the very spirit of the Constitution, which he is bound to preserve and protect. But one thing is certain, that when defection is used by a legislator to bargain for something outside his pure moral desire to change loyalty for another political party, "tradinf" sets in, and when he dictates onerous terms as a consideration for his detection, such as a heavy price, a high office or some handsome reward, it becomes "horse- trading" or "conscience vending", a highly pernicious, immoral and unethical act, which for the same reasons must be openly condemned.
114. 27.Defections have become some form of standard practice and behaviour among legislators. But this evil old practice has prevailed since democratic institutions were established in this country and since it has served the interests of the parties in power, no serious steps have ever been taken to eradicate it. Whilst any form of unethical defection or "horse-trading" requires to be condemned and I would say that there should be a Constitutional amendment to ban the same, but, in the absence of such a ban, the power to deal with defection or "horse-trading" should be left with Parliament itself, as it deals with violation of Parliamentary practice and etiquette and breach of behaviour on the part of its members, and if there is a law in that behalf, the matter should be left with the bodies designated for that purpose. By a side wind, these somewhat pernicious, though fraternal, departures from ethical behaviour and conduct, should not be permitted to destroy the fate of all the members of a legislative body, for the mistake of a few. Parliamentary practices need to be strengthened; rather than the legislatures be crucified for the mistake of a few Judases.
115. 28.But then the question again arises, whether this pernicious evil has contributed to the failure of the Constitutional machinery. As stated earlier, the Coalition Government was somewhat peculiarly placed in view of the open confrontation existing between itself and the Combined Opposition and attempts made by both to dislodge each other contributed to defection and. "horse-trading" on an uninterrupted scale with each side trying to grab members of the other and offering Ministerial or other posts and rewards in the Centre or in the Provinces to some of the defectees. The grant of High offices, such as of Ministers, Ministers of State, etc., to members of the Opposition camp showed that they were for reward. No Parliamentary practice permits defection or "horse-trading".
116. The evil is manifest where tenuous coalitions arc in the seat of power. To maintain power, defections from the opposition parties are sought against high rewards and offer of Ministerships.
117. Likewise, the same practice is adoption by the Opposition to break the ruling coalition. The adoption of this evil practice only lays bare the position of a coalition party that its functional ability to rule, through the numerical strength of its members, is vulnerable, and that if the opponents were to succeed by the same practice, they would be out of power. This ground can reasonably be treated as reflective of serious functional dislocation of a coalition government, and since this is a basic situation for which an assembly can be dissolved, as stated in para 19 above, this ground I would treat as justifying the opinion which the President did come by to justify dissolution.
118. 29.As regards the abduction of the members, it appears no objections were filed by the abducted members for violation of their privileges before the Privileges Committee, nor any action was filed with the Courts. If they wanted to oblige the Leader of the House to be protected from being abducted by or coerced into joining the Opposition, their action cannot be considered as giving rise to any cause of action in favour of the other.
119. 30.The material placed on the record shows that excessive amounts were withdrawn from Secret Service Fund at about the time the no-confidence motion was moved against the Prime Minister and the election to the Legislative Assembly of the Azad Jammu and Kashmir Government was to be held. Disbursements from Secret Service Fund are matters of high confidence, to be kept secret and not to be made public. To open up any chapter thereof in Court proceedings is fraught with the gravest danger to the State. Action for misuse or defalcation of such funds should be before a Committee specially constituted by Parliament for this purpose, or before a Tribunal constituted for this specific purpose by law, whose proceedings are held in the strictest secrecy. The Prime Minister or any Minister utilising such funds is bound by his or her oath of secrecy not to divulge the nature of its use or appropriation. If the uses were disclosed, it could lead to disaster; and whether they were true or false, how could they be verified. It is stated that the certificate of the Prime Minister that they had been spent on good causes in the best interest of the Government, was all that was required. In this view of the matter, to call for an open disclosure in Court would be a serious departure from correct practice, one against the public interest and that which this Court should not approve. For this Court in Constitutional proceedings relating to a dissolution matter to inquire into this matter, would be derogatory to the honour of the Parliament and almost interfering in their internal working. It is also claimed that the misuse of such high amounts near the period of the no- confidence motion and the election to the Azad Jammu and Kashmir Legislative Assembly, lead to the strong inference that they were wholly or in a material 'measure used to win over Opposition members to their fold or to hold on to their defecting members. It is also urged that certain Presidential References have also been filed against certain members of Parliament for misappropriation of such Secret Service Funds. Since I do not consider that this is a matter which should be an open subject for Courts and this matter is sub judice before Special Courts set up to try such cases and references relating to misappropriation of Secret Service Funds is only confined to not more than half a dozen parliamentarians, I do not think this matter was one which led or contributed 'to or was the cause of the breakdown. I would therefore hold that this matter did not give the President a firm basis to form an opinion regarding thebreakdown of Constitutional machinery.
120. 31.I now turn to two other reasons given by the President for the dissolution of the National Assembly, namely, that the Council of Common Interests had not been allowed to discharge its Constitutional functions and to exercise its powers despite the persistent demands of the Provinces and that the. National Finance Commission had never been called to meet and allowed to function, thus blocking important Constitutional bodies from performing their functions. In this respect the learned Judges of the High Court found, on the basis of the material placed on the record, that it appeared that the Federal Government, despite repeated demands by three out of the four federating units and the unanimus resolution of the Senate, had failed to call the meeting of the Council, that the correspondence exchanged between the Chief Ministers, the Prime Minister and the President indicated that there were several subjects which required resolution by the Council, that the failure to call the Council's meeting put off the settlement of the major disputes, that the reason for not calling the Council's meeting was that in case any of the issues remained unresolved in the Council, the matter would have had to be referred to the joint session of the Parliament, that since the Federal Government lacked majority there it might, have faced humiliation, that the stalemate resulted in polarisation and confrontation, that the Provinces of the Punjab and Balochistan having no way out had to institute suits against the Federal Government in the Supreme Court calling for the Council's meeting and that though the President had expressed his concern over the confrontation and political deadlock and had advised the Prime Minister to redress the grievances of the Governments of the federating units, the same was not done. The learned Judges also found, on the basis of the material on the record, that the National Finance Commission was formed after a great delay on 25-7-1990, i.e. a day before' the last day of its formation under the Constitution, which delay had resulted in not a single meeting of the Commission being convened throughout the tenure of the Federal Government, that the accords which could have resulted from its meetings stood aborted and that the non-summoning of the said Commission gave rise to political confrontation between the Federation and the Provincial Governments, which endangered the solidarity of the country.
121. 32.In this respect the learned counsel for the petitioner submits that the meeting of the Council of Common Interests could not be called due to political reasons, as it would only have further exacerbated political polarisation and that the Prime Minister had replied to the President to state that the meeting would be called and convened at some opportune time. It is further submitted that since a remedy lay with the Provinces to have their disputes resolved by the Supreme Court under the Constitution and two of the Provinces had so moved the Supreme Court, which also made the matter sub judice, the question of the President having to dissolve the Assembly for the non-convening of the meeting of the Council did not arise. As regards the National Finance Commission, it is submitted that though it had been constituted in the past in 1974, 1979 and 1985, it had only once met and given its award in 1975, which was also on an ad hoc interim basis. It is submitted that in the past when no meetings of the said Commission were held, even though the Federal Government was strongly in the saddle, no breakdown of the Constitutional machinery had occurred and how it could be said that the same now had led to any breakdown. It is further submitted that the Commission was constituted in May, 1990, and when the meeting was to be convened, the Assembly was dissolved. It is asserted that in July, 1989, a summary of the names was put up for appointment, but delay occurred due to differences over the names, but in any case it was constituted on 27-5-1990, but before it could hold a meeting, the National Assembly was dissolved. The learned Attorney-General supports the findings of the High Court with the material filed by it with its written statement.
122. 33.The failure on the part of Government to allow the Council of Common Interests to function and exercise its powers, or failure on its part to allow the National Finance Commission to function, would lay it open to the charge of not fulfilling its Constitutional duties, as provided in the Constitution. These are two institutional bodies created by the Constitution and like the three great organs of the State i.e. the Legislature, the Executive and the Judiciary, require to be specifically preserved, protected and kept functional. The duty of every government therefore to preserve, protect and maintain its Constitutional institutions healthy and functional, must be treated as its highest priority. Whether by keeping the Council or the Commission non-functional, a breakdown of the Constitutional machinery can be said to arise, or it could lead to such a situation, would depend upon the facts of each case. A Government having a strong majority may be able to sort out all disputed matters itself, without allowing the Council or Commission to function, or even in the face of disputes may not allow the Council or Commission to function and get away with it. In such a case, heaven would not fall and the Constitutional machinery would not breakdown. A Government not having a strong majority may feel helpless in convening a meeting of such a Council or Commission to function, lest it may exacerbate an otherwise difficult situation, or create more disharmony, or weaken its own political position, in which case--As a matter of political strategy--It could leave the Province to move the Supreme Court, where it could join issue to resolve the matter and prevent disharmony or its own defeat. 1n fact the Provinces should have swiftly moved the Supreme Court to get judgment under Article 184(2), rather than waste their time with the Federation when they knew nothing useful was expected to come out of their parleys. In the instant case, being on a somewhat weak wicket, the Coalition Government did not allow the Council of Common Interests to function and also dragged its feet in constituting the Commission.
123. The aggrieved Provinces could have moved the Supreme Court swiftly, but they also dragged their feet to take political advantage of the polarised confrontation. It is an unfortunate case of both the opposing parties being in pari delicto. However, two of the Provinces moved the Supreme Court but somewhat late. Nevertheless, the extreme polarisation and political confrontation existing between both the parties on almost every issue, could not totally relieve the Coalition Government from complying with the provisions of the Constitution. In this background. I would hold that there Were strong compulsions on the Coalition Government to call the meetings. The failure of the Coalition Government therefore to allow the Council of Common Interests to discharge its functions and exercise its powers and to call a meeting of the National Finance Commission, created extreme bitterness and political deadlock between the Federation and the Provinces, contributing to a breakdown in the functional working of the Federal Government. In these circumstances, I would hold that the said matters did constitute proper ground; which the President could have taken into consideration when forming hi,, opinion and that they had a nexus with the breakdown of the Constitution a machinery.
124. 34.I 'may now deal with the Sindh situation. The learned Judges of the High Court, on the basis of the material on the record, found that the Sindh Government did not take adequate measures to secure law and order in Sindh as a result of which dacoities, murders and kidnappings for ransom continued unabated, that the matter had gone outside the control of the Sindh Government, that the Pucca Qila operation had virtually destroyed the law and order situation in Sindh, that under Article 148 of the Constitution the Federal Government was under a legal obligation to protect that Province from internal distrubances, that both the President and the Attorney-General ha( advised the Federal Government that the Army be given power under Article 245 of the Constitution to deal effectively with the situation, that the President in his letter dated 28-5-1990 addressed to the Prime Minister ha( also expressed serious concern over the massacres in Karachi and Hyderabad on 27- 5-1990 and involvement of the Provincial administration therein, that thl Federal Government dragged its feet and failed to give powers to the armed forces to combat the law and order situation and thus failed to perform it Constitutional duty to protect the population of Sindh from internal disturbances and breakdown of law and order. The learned Judges also forum, that since the threat to law and order was so grave and the Provincial machinery was not able to cope with the matter, it had become imperative for the Federal Government to have intervened to preserve the integrity an, solidarity of the country and that its failure was culpable.
125. 35.On behalf of the petitioner it is submitted that every conceivable ste was taken by the Sindh Government, where the Pakistan Peoples Party was I power, to maintain law and order, that even the Army and other para-militar forces had been deployed in this respect, that bunkers were set up, patrollin was resorted to and curfew in local areas was imposed to assist the Army their activities, that the Sindh Government desired to secure the assistancethe armed forces for the maintenance of law and order by desiring to renew the Ordinance promulgating section 131-A in the Code of Criminal Procedure--The earlier Central Ordinance, XV of 1988, promulgating that section having lapsed--but the President would not pass the same, but wanted enforcement of Article 245 and that since the said Article envisaged setting up of Military Courts by the Army, whose orders would have been outside the pale of judicial review, it did not permit the Army taking over under the said Article, but it utilised the Army and para-military forces for maintenance of law and order. It is urged that the breakdown of law and order in a Province being a provincial subject did not invite action under Article 58(2)(b) and application of this provision to such like cases had not been accepted by the High Court earlier in Khawaja Muhammad Sharifs case (PLD 1988 Lah 725) or 6y the Supreme Court in Haji Saifullah's case (PLD 1989 S.C. 166). It is also stated that even now the Sindh situation is graver than before, that the Army has not been deployed under Article 245 and the Government has not been dissolved on that account. The learned Attorney-General has referred to the various' documents on the record to support the findings of the High Court, which findings also constitute his arguments.
126. 36.The question here is not that the Army was not called. It is the case of the Federal Government that it should have been called under Article 245 of the Constitution and given a totally free hand to deal with the matter. It is the case of the deposed Government that it did not want to invite the setting up of Martial Law Courts once again, after their last eight years presence, which had brought great misery to the country, and therefore their services and that of other para-military forces were utilised to render such assistance as was required to maintain law and order outside the scope of that Article, so that all Court proceedings could be subject to judicial review. It is not the case, of the Federal Government that the Army or other para-military forces were utilised on a rigged or partisan basis or that the Sindh Government was using its machinery in a partisan.
127. Manner to let off law-breakers belonging to its political partners or clamping down on those belonging to its opponents. In the absence of such material, to hold that the Army should have been called under Article 245 of . The Constitution, would be a debatable issue. In these circumstances, I do not think that the Sindh situation gave to the President any valid basis to form an opinion to dissolve the National Assembly.
128. 37.It is further urged that the Senate and the Superior Judiciary were insulted and their status demanded, that plots of land were allotted to members, of the National Assembly to secure their loyalties, that Air Force planes were used for political purpose; that corruption, favouritism and nepotism were rampant, that telephone's were tapped in ,violation of the fundamental rights of the members of Parliament, that public funds were being misused and loans were being disbursed flagrantly by way of favours, that persons were being inducted into the Services and otherwise favoured in violation of statutory rules and regulations and established practices and that the Peoples Programme was being administered contrary to Constitutional requirement, all of which constituted good grounds on which the President could have formed a valid opinion that there was a breakdown of the Constitutional machinery.
129. 38.So far as where allotments of plots, tapping of telephones, the use of Air Force and civil aviation planes for political purposes, general corruption, favouritism and nepotism, misuse of public funds and disbursement of loans by way of favouritism are concerned, all these are perennial problems that have continuously faced the Federal and Provincial Governments in both this country and in India. Though none can be justified and all deserve to be severely condemned, they cannot be permitted to justify dissolution of legislatures, for otherwise it would be conferring on the President and the Governors sweeping powers, almost creating some form of Constitutional autocracy.
130. These matters deserve to be dealt with by Parliament and the provincial assemblies themselves, through Ethics Committees, special constituted to prevent and weed out these malpractices.
131. Further, they can be dealt with and rectified by law, appropriately framed in that behalf and by public opinion; more so by self-imposed discipline, awareness to the rule of law and the will to abide by and maintain and support ethical practices.
132. 39.The Federal and Provincial Services are Constitutionally protected and recognised. Like the other Constitutional institutions and bodies, the great bureaucracy, i.e., the Services, have an institutional status. All Constitutional institutions and bodies require to be specifically preserved, protected and functionally maintained for good Government and integrity of the State. But the Services have over the years been subjected to manifold illegal interference by the administration itself, either acting under legislative will or extra-legal interference from the elected representatives. In short, it has been corrupted and violated by a section of those it has sought to serve or who are directly responsible for its preservation and protection, and whilst this process has continued over the years, no breakdown of the Constitutional machinery has occurred placing any ruling Government vulnerable to dismissal. The answer to such rampage and pillage is with the Services itself, which should collectively take a stand against this rot and compel the Government through lawful and legal channels to refrain from illegally interfering with their legal structure and working, other than through legal means. Recourse to the Services Tribunals can be availed in this respect to seek redress. They should move the Government to arm the Service Tribunals with effective power so that they can issue interim orders to check such illegal interferences and power to effectively secure execution and compliance of their orders. Recourse to Article 184 (3) of the Constitution can also be availed. Larger groups can move the legal machinery by filing representative petitions.
133. Article 184(3) permits the Supreme Court in a proper case to look into the matter within the compass of "public interest litigation". Thus, whilst emphatically asserting that all forms of extra- legal interference with the Services cannot be justified and must be unequivocally condemned, I would hold that they cannot be permitted to justify dissolution of legislatures and the remedy to this matter lies elsewhere.
134. 40.As regards demeaning the status of the Senate and the Superior Judiciary or the integrity of its members, the position is no different. It is not the first time that those, at the helm of power have demeaned the status of Parliament or the Superior Judiciary or its members. Irresponsible uncalled for actions or remarks only betray lack of caution. They only show that those that are expected to operate at superior levels of grace, sometimes fail to exhibit balance and restraint so very much needed of them in respect of certain sensitive matters and subjects, The institutions they seek to malign do not fall by their utterances, though they suffer in reputation and status. It only goes to the credit of the Senate and the Superior Judiciary that they ignored the matter in keeping with their dignity and grace. Again, such actions and remarks do not justify the dissolution of the legislatures. The remedy is with the voters whether to support or avoid such a candidate. What lies in the field of the electorate, must be reserved to them. Such power must not be usurped by others.
135. 41.The Peoples Programme is again one on which the Federal Government and the Provinces had some dispute The Federal Government felt justified in appropriating the funds itself, in view of Item 25 of the Concurrent Legislative List, whilst the Provinces insisted that they be permitted to appropriate them, in keeping with the spirit of Article 97 of the Constitution. Any aggrieved party could nave moved the Supreme Court. In either case, it would be appropriate in of funds by the Federal Government under Item 25 of the Concurrent Legislative List without legislative approval, or appropriation of funds in violation of Article 97, and since this violation did give the aggrieved Province the right to move the Supreme Court under Article 184(1), this matter also did not give the President a valid basis to dissolve the Assembly. Where the Constitution provides an appropriate remedy, me would expect the aggrieved party to avail the same, rather than pursue the discord and cause a breakdown of the Constitutional machinery.
42. From the above, it would appear that after the 1988 elections, the Pakistan Peoples Party appeared as the single largest party at the Centre, that it did not have an overall majority in the National Assembly, that if formed a Coalition Government and secured a majority in the National Assembly but had little support in the Senate, that it had its Governments in Sindh and North West Frontier Provinces, but not in the Punjab and Balochistan, that open political confrontation and polarisation beset it from the very beginning and continued unabated, that it could not get working support from the Combined Opposition and therefore could not carry the opposition with it, that in this climate of stalemate its ability to legislate became. Highly impaired and it was not inter alia able to legislate freely or to allow the Council of Common Interests and the National Finance Commission to discharge its functions and exercise its powers, thus further exacerbating an otherwise difficult situation, that both sides continued "horse-trading unabated so as to grab each other's members to defeat the other, but it cannot be stated with certainty which person was offered what monetary reward, though high parliamentary offices, etc., were offered to some of the defectees, which constituted high rewards, and that all these facts clearly showed that partial dislocation of the Constitutional machinery had set in and breakdown was imminent, which justified the President in taking the step, which he did, to call upon the electorate to re-elect the National Assembly to remove the stalemate. The fact that the President took into consideration other matters which had not direct nexus with the breakdown or were peripheral, but which were placed before him and may have prompted him to form his opinion, does not vitiate the Order passed. At best they gave him further strength to form the opinion that the Federal Government could not be carried on in accordance with the Constitution, which otherwise he could also have formed on the material above-stated, which had nexus with the requirements of the Constitution.
136. 43.Before concluding, a few matters call for consideration, which I would like to touch.
137. First: The running of any Parliamentary system of Cabinet Government calls for some sophistication. The elected representatives are required to be dedicated persons, having moral consciousness, legal awareness, commitment to democracy, and an aiding faith to run the Government in accordance with the Constitution and the law. They should be above greed or lust for power, and refrain from violating democratic norms and constitutional provisions. And above all, there should be an elite force of mature parliamentarians, rich in experience, holding the higher positions, to set the pace and provide guidance to others, including those that constitute the second line of succession.
138. Second: Without accountability at all levels, no headway can be made and any system of Government would meet failure. Till we have sorted this out, no success can be achieved with a Parliamentary system of Government. The setting up of a Parliamentary Ombudsman or Ethics Committee to Ensure Parliamentary Accountability, to watch and control the personal actions of and exercise of official and Constitutional functions by the elected representatives and take action against them, where necessary, by secret ballot, would set the pace for clean politics and orderly parliamentary working. Selective accountability is a negation of democracy, as it can only lead to further political polarisation and revenge and impair the democratic process.
139. Third : The provisions regarding the constitution of the Senate require examination. A Coalition Government having a fair majority in the National Assembly and a poor representation in the Senate, would be beset with problems from the very beginning, making it almost impossible to run the Government. The Senate, being composed of members elected earlier, would not represent totally the will of the electorate, as expressed in the last election bringing in the members, of the National Assembly. In short, the will of the people, would be subservient to a body having an earlier mandate. What should be done to remedy this situation, is for the elected representatives to consider.
140. Fourth: The maximum time provided by the Constitution for holding the general elections after the dissolution of the National Assembly has been announced in ninety days. This does not provide sufficient time for the Superior Courts through two tiers to give a decision on the validity or otherwise of the dissolution order, should a writ petition be filed to challenge it. Invariably the general election will have taken place before the case has commenced or been finally decided, making the proceedings academic, if not an exercise in futility. Whether this time should be sufficiently enlarged to enable the High Court and then the Supreme Court to examine the case, or whether the time for holding the general election should be allowed to be calculated from the date the final order has been passed, or whether the Supreme Court alone should be invested with the duty to decide such cases within the time presently provided, requires examination.
141. AND FIFTH AND LAST. What concerns ourselves must be last served. In view of the Constitutional background of this country, interspersed as it is with abrogations, suspensions, abeyances and amendments made to our Constitution by individuals who have had no Constitutional authority to do so, which successive Parliaments have ratified under political manoeuvring and compulsion, the public looks up to this Court to, put every provision of the Constitution in its proper place, to hold that an aberration is an aberration, to set aside all amendments made or ratified by Parliament under the rule or pressure of military dictators and to bring back the Constitution to its original prestine glory as it stood before such violations to its body context took place at the hands of such persons. It is almost assumed that this Court is about the only effective body left to strike down all such amendments. The argument sounds attractive, but it must not be forgotten that appeals against various judgments of the High Court upholding the Eighth Amendment are still pending before us and whilst reserving the right of this Court to express itself at the proper moment, one cannot help but observe that a Government duly elected by the~people is in the saddle now and the legislature, operating in its reserved field, has the means and the ability to strike down all such amendments it considers as violating the Parliamentary character of the Constitution and can strike down all such amendments it consider unauthorised or appropriate for removal.
44. This petition was argued extensively at length for three days during which important Constitutional and legal questions arising out of the impugned judgment were thrashed out in great detail, at the conclusion of which, the decision of the Full Court refusing leave was announced in open Court. Speaking for myself, I have not been able to forgive myself for being caught off guard, for I should have asked for the conversion of this petition into appeal and its dismissal, as such. I mention this, as questions of great national importance touching the interpretation of the Constitution having been argued and the same having been dealt with by a number of members of this Court, we leave behind no decisive judgment, but one dismissing the petition in limine and more confusion to confound everyone.
45. For the foregoing reasons, the judgment of the Lahore High Court is not open to interference and I agree that no case for leave is made out and this petition be dismissed.
142. (Sd.)
143. Rustam S. Sidhwa, J.
144. SAJJAD ALI SHAH, J.--Vide short order passed on 4-11-1991, leave to appeal was refused and in the result petition was dismissed, to which I had agreed mainly for the reason that National Assembly of Pakistan dissolved by the order of President of Pakistan passed on- 6th August, 1990, under Article 58(2)(b) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as the Constitution) could not be restored for reasons to be stated later. In substance I was and am of the view that order of dissolution of National Assembly passed by the President of Pakistan and mentioned above is bereft of legal justification and is not sustainable under the provisions of the Constitution and law. I have had the privilege and advantage of reading well considered and elaborate draft judgments of my learned brothers Shafiur Rahman and Abdul Shakurul Salam, JJ.
145. Which are in conflict with each other on the question of validity of order of dissolution. With utmost respect I say that I am unable to subscribe to the view taken by learned brother Shafiur Rahman, J.
146. I agree with the line of reasoning and main conclusions drawn by my learned brother Abdul Shakurul Salam, J. Except observation that Article 58(2)(b) pertained to late President and need not be stretched further. However, on irresistable impulse, I give reasons, in support of the conclusions, in my own matter-of-factly way.
147. 2.Our Constitution, in letter and spirit, contemplates and provides for parliamentary form of Government. In this context, for the purpose of present controversy, two Articles are important and relevant to be spotlighted. Article 48 requires that President shall act in accordance with the advice of the Cabinet or the Prime Minister. Clause (2) of this Article makes it clear that notwithstanding anything contained in clause (1) as stated above, 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. Another Article is 58 and under clause (1) thereof, the President is empdwered to dissolve the National Assembly if so advised by the Prime Minister. Under clause (2), the President is empowered to dissolve National Assembly, in his discretion, notwithstanding anything contained in clause (2) of Article 48, if he is of opinion as under : (a)a 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 as ascertained in a Session of the National Assembly summoned for the purpose; or (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.
148. 3.Acting under Article 58(2)(b) of the Constitution, on 6th August, 1990 the President of Pakistan, by an order, which was duly gazetted, dissolved the National Assembly and the first paragraph of the said order is reproduced as under: "The President having considered the situation in the country, the events that have taken place and the circumstances, and among others for the reasons mentioned below, is of the opinion that 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.
149. 4.In the order of the President, after paragraph reproduced above, grounds have been enumerated on which action was taken and those grounds would be taken up one by one in this judgment subsequently at an appropriate place with comment and discussion thereupon. For the time being I restrict myself to the discussion of legal aspect of the matter. Same question with regard to the powers of the President to dissolve National Assembly in the light of Articles 58 and 48 of the Constitution came up for detailed examination in the case Federation of Pakistan and others v. Haji Mohammad Saifullah Khan and others reported in PLD 1989 SC 166 and was decided by Full Bench comprising 12 Judges. Relevant paragraphs from the report are reproduced as under:- "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 on in accordance with the provisions of the Constitution.
150. 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.
151. "According to his discretion", as explained, relying on Maxwell, in M. Abdul Majid v. The West Pakistan Province and 2 others PLD 1956 Lah. 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 and for substantial reasons and it must be exercised within the limits to which an honest 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."
152. 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 the law that confers it.
153. "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'.
154. 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."
155. 5.Quote reproduced above has been culled out from the leading judgment authored by Dr. Nasim Hassan Shah, J. Which clearly shows and lays down scope and authority of the powers of the President in respect of dissolution of Assembly. There is no dispute or doubt about the fact that Constitution does empower the President to dissolve the Assembly but before doing so he has to form the opinion, objectively that a situation has arisen of the kind envisaged in Article 58 (2) (b), necessitating and justifying taking of grave step of dissolving of National Assembly. On the same point, while analysing language of Article 58(2) (b) of the Constitution, where mention is made of "a situation has arisen " Shafiur Rahman, J. Writing his separate note at page 212 of the report, has made a very pertinent and enlightening observation which is reproduced as under:- "The expression "cannot be carried on" sandwiched as it is between "Federal Government" 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 Constitutional mechanism, a statement, a deadlock in ensuring the observance of the provisions of the Constitution."
156. 6.In the light of 1.-,gal position with regard to powers of the President enshrined in the Constitution in connection with dissolution of the National Assembly as enunciated in the case of Saifullah Khan, supra. I proceed to examine the grounds relied upon for dissolution of National Assembly with material purporting to be in support thereof but before so doing I would like to mention a few factors which are quint-essential for objective assessment.
157. 7.Firstly, that history of our Constitution making does not make happy reading and is indicative of double mindedness between Parliament form of government and Presidential form of government.
158. After partition of the subcontinent in 1947, for the first time Constitution was produced in 1956 allowing Parliamentary form of government, which was abrogated in 1958 when Martial Law was declared by General Ayub Khan, who was Commander-in Chief of Pakistan Army. He abhored parliamentary form of government as according to him people were not then ready for full- fledged democracy so he invented a system of basic democracy to suit the genius of the people at grass-root level and that political system envisaged Presidential system in which on the basis of adult franchise people elected electoral college of basic democrates who in turn elected members of the Assemblies and the President. President Ayub Khan also gave the country Constitution enacted by him in the year 1962 permitting presidential form of government.
159. 8.In 1969, there was political turmoil people came out in the streets and President Ayub Khan instead of handing over powers to the Speaker as contemplated in the Constitution given by him called upon General Yahya Khan, Commander-in-Chief of Pakistan Army to perform his Constitutional role, who abrogated the Constitution, imposed Martial Law, broke-up One Unit (Province of West Pakistan) and restored original four provinces of Punjab, Sindh, Frontier and Balochistan and held general elections in the country on the basis of adult franchise. In the result of the elections Awami Party of Mujeebur Rahman secured majority in East Pakistan and Pakistan People's Party in West Pakistan. There was political unrest in East Pakistan and in that connection military action was taken which culminated in war between India and Pakistan. Ultimately East Pakistan declared independence and became Bengladesh. In West Pakistan People's Party came in power and in 1972 gave to the country interim Constitution followed by permanent Constitution in 1973 with maximum emphasis on parliamentary form of Government to such an extent that a provision was inserted in the Constitution to provide that every order passed by the President on the advice of the Prime Minister would be effective and valid only when it was countersigned by the 'Prime Minister once again. Constitution of 1973 at the Centre provided for bicameral legislature of Nat anal Assembly and Senate, while members of the National Assembly were to be elected directly by the people. Members of the Senate were to be elected indirectly on proportional representation basis by electoral college of members of the Provincial Assembly. Constitution provided for dissolution of National Assembly but no such provision exists for dissolution of Senate.
160. 9.On 5th July 1977 General Muhammad Ziaul Haq, Chief of Army Staff imposed Martial Law and held in abeyance Constitution. He did not abrogate the Constitution may be for the reason that it was passed with the consensus on all the political parties which were elected and represented in the National Assembly and controvertial question provincial autonomy had been finally decided and incorporated in the Constitution. His action of toppling civilian government and imposition of Martial Law was challenged in the Supreme Court in the case of Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 Supreme Court 657) and was given cover of validation on the basis of doctrine of necessity subjecting all the laws and orders passed by Martial Law regime to judicial review. He was allowed to continue till holding of general elections as promised by him in his speech to the nation after seizure of power. He avoided holding general elections.
10. Supreme Court of Pakistan had allowed General Ziaul Haa to amend the Constitution and he held the post of President and C.M.L.A exercising powers of the Prime Minister and the President.. He held elections of local bodies on non-party basis and also elections in 1985 on non-party basis of Provincial Asseitblies and National Assembly. Since political parties were banned or de-activised individuals contested the elections and in the National Assembly subsequently Mr. Muhammad Khan Junejo was nominated by the President as Prime Minister. It would be pertinent to mention here that President Ziaul Haq was not happy about excessive powers of the Prime Minister in the Constitution and had expressed himself strongly against it on several occasions. Elected representatives in the Assemblies insisted for removal of Martial Law and in the process bargain was struck which manifested itself in shape of 8th amendment which was made in the Constitution. This amendment validated Martial Law orders and regulations and tilted in favour of giving more powers to the President than Prime Minister resulting into a situation in which now President, who is not directly elected, is competent to dissolve the National Assembly and dismiss the Government of the Prime Minister who is directly elected by the people.
161. 11.I would not like to make any further comment with regard to 8 Amendment vis-a-vis Parliamentary form of government for the reason that the matter is sub judice and appeal in this respect is pending in the Supreme Court awaiting final disposal. History of our. Constitution stated above is to be kept in view while making objective assessment of the grounds and material in support thereof on the basis of which order of dissolution had been passed. In the case of Federation of Pakistan v. Saifullah Khan referred in the above paragraphs of the judgment, Supreme Court had gone deep into the question of debates in the National Assembly and speeches made by the Prime Minister and the Law Minister in order to ascertain the intention of the legislators on the amendment made in Article 58(2) (b) of the Constitution, to come to the conclusion, as it did, to the effect that 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 qualified one, in the sense that it is circumscribed by the object of law that confers it. If the action is violative of the Constitution then superior Courts have inherent duty to ascertain and enforce the provisions of the Constitution. (See also Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486 at page 504).
162. 12.Another factor to be considered is that now a days there is a general trend which encourages superior Courts in the advanced countries of the world to indulge in judicial activism in order to do effective justice liberally. Our Constitution under Article 187 permits Supreme Court of Pakistan to do complete justice. In the light of factors mentioned above, considering also history of our Constitution making as mentioned above, I now turn to the grounds mentioned in support of order of dissolution.
163. 13.In the dissolution order mentioned above five main grounds are mentioned as (a), (b), (c), (d) and (e). Ground (a) is reproduced as under:- "(a)The utility and efficacy of the National Assembly as a representative institution elected by the people under the Constitution, and its mandate, is defeated by internal dissensions and frictions, persistent and scandalous `horse-trading' for political gain and furtherance of personal interests, corrupt practices and inducement, in contravention of the Constitution and the law, and by failure to discharge substantive legislative functions other than the adoption of the Finance Bill, and further the National Assembly has lost the confidence of the people."
164. 14.In the Lahore High Court after dissolution order was challenged in the constitutional petition filed by Khawaja Tariq Rahim, respondent No.l Federation of Pakistan, filed written statement in which stand was taken that President had applied his mind and had given reasons, adequacy or sufficiency of which is not justiciable. In support of ground (a) as reproduced above, it was mentioned that there was continuous change of loyalties and horse-trading among members of National Assembly in violation of law. It was so done by the Federal Government of that time by offering bribes granting pecuniary benefits and bestowing offices of Government on members elected on I.J.I. Tickets and independents. It was mentioned that in October and November, 1989, no-confidence motion was moved against the then Prime Minister, which did not succeed on account of tactics of the Government mentioned above. Specific allegation was made that .86 members of the National Assembly were transported to Swat and other places in Northern areas, hence were prevented from exercising their right of vote in the no-confidence motion: C-130 air- crafts of Pakistan Air Force and also air-crafts of Pakistan International Airlines were used for thatth purpose in violation of rules. Loyalties of three MNAs .Namely, Mr. Ghulam Mohammad Manika, Mr. Makhdoom Anwar Alain and Rai Shabbir were purchased and they were made Ministers and abstained from voting against the Prime Minister.
165. 15.Horse-trading is a term popularly used in respect of crossing of floor by the member of the Assembly, who changes his loyalty and switches over to the other party. There is specific and categorical allegation of horse-trading in ground (a) of dissolution order along with other allegations, which are all held collectively to be against Constitution and the law resulting into loss of confidence of the people in the National Assembly. So far legal aspect of allegation of horse- trading is concerned, it can be said that Political Parties Act was framed in 1962 and its section 8(2) contemplated disqualification for a member of Assembly for the unexpired period of his term, who contested and succeeded on a ticket of political party and then withdrew from it, leaving it open to contest again. Upon advent and promulgation of Martial Law in 1977 and thereafter, section 8 of Political Parties Act was amended repeatedly to enlarge the scope of disqualification to rope in and adversely affect as many as possible elected members of a political party from which power was seized. Vide Act NOXXII of 1985 dated 24-12-1985, subsection (8-B) was inserted in section 8 providing for disqualification on the ground of defection which is reproduced as under: "(8-B).--Disqualification on around of defection etc.--(1) If a member of a House- (a)having been elected as such as a candidate or nominee of a political party, or (b)having been elected as such otherwise than, a candidate or nominee of a political party and having become a member of a political party after such election, defects or withdraws himself from the political party he shall, from the date of such defection or withdrawal, be disqualified from being a member of the House for the unexpired period of his term as such member unless he has been re-elected at a bye-election held after his disqualification.
166. (2)If any question arises whether a member of a House has become disqualified under subsection (1).From being a member, the question shall, on a reference by the Leader of the parliamentary party concerned, be determined by the Election Commission.
167. (3)An appeal against a decision of the Election Commission under subsection (2) shall lie to the Supreme Court, within thirty days of the decision:'
168. 16.It is very clear from the perusal of the provision reproduced above that firstly the member would be disqualified only when he defects or withdraws himself from the political party of which he is a member and secondly, question is to be referred by the leader of parliamentary party to the Election Commission and thirdly, the question is to be decided by Election Commission and against its decision and appeal lies in the Supreme Court. In view of legal position enunciated above, members who crossed the floor, did not come within the mischief of violation for the reason that they continued remaining members of their political parties and did not defect or withdraw from their parties, hence no action could be taken against them for violation of any provisions of Political Parties Act. On 6-8-1990 dissolution order was passed and on 22-10-1990, Political Parties (Amendment) Ordinance X of 1990, was promulgated by which section 8-B was amended to provide that a member of a House shall be deemed to defect a political party if he votes or abstains from voting contrary to any direction issued .By the disciplinary committee of the Parliamentary Party to which he belongs. It further provides that political party also includes an alliance or combination. Of two or more parties which participate in an election under a common symbol. This amending Ordinance became extinct because it was not converted into Act of Parliament.
169. 17.Now when at the time when dissolution order was passed, no action could be taken against the members, who crossed the floor and voted or not voted against the interest of their own party under the law which was in force then it could not be made a ground for dissolution of National Assembly. If horse-trading was not caught within the mischief of law before dissolution order was passed and was considered morally wrong, then judicial notice can be taken to the effect that same horse-trading continues now but is being officially ignored.
170. 18.Main grievance spotlighted in ground (a) in support of order of dissolution is horse-trading which has been dealt with in view of provisions of relevant law on the subject. Other allegations are co-related with the main allegation of horse-trading and are to the effect that indulgence was made for ,political gain and in furtherance of personal interest, corrupt practices and inducement were made use of, which have been held to be in contravention of Constitution and law. In this respect, stand is taken on behalf of the petitioner before us that action should have been taken in respect of lapses mentioned above, if they were in contravention of law instead of dissolving National Assembly on that ground. Similarly, allegation that Government of Peoples Party was not able to discharge substantial legislative functions except adoption of finance bill, is vague in nature and that ground in itself is insufficient to dissolve National Assembly as it was not shown that any contravention was made of constitutional provision which requires that a particular minimum number of Bills and laws is to be passed within stipulated time by the National Assembly which it failed to do. In the absence of such mandatory provision in the Constitution about disposal of legislative work, if that Government survived for 22 months, it could have survived for the remainder of the term unless shown that dissolution was justifiable and is for reasons, which are covered by the requirements laid down in Haji Saifullah Khan's case and the constitutional machinery had failed and the Government was unable to run. Charges of misuse of funds as mentioned in the written statement by the deposed Prime Minister, for purposes prohibited, could be looked into if so allowed under law for which steps according to law, could have been taken for taking appropriate action instead of dissolving the National Assembly. I see considerable moral force in the contention raised on behalf of the petitioner that allegations made in ground (a) in the order of dissolution did not justify presumption that National Assembly had lost confidence of the people because if it was so, then a leader of Opposition in the same National Assembly should not have been appointed as Care-taker Prime Minister.
171. 19.In ground (b) of the dissolution order are mentioned the facts, briefly stated, that Federal Government of that time had wilfully undermined Constitutional arrangements and usurped the authority of the provinces by not 'I calling in session institutions like Council of Common Interests and National Finance Commission and ridiculing Constitutional role played by Senate.
172. 20.Before adverting to ground (b) of dissolution order and questions contained therein as mentioned above, it would be pertinent to sketch here very briefly political senario, in which Pakistan Peoples Party came into power. General elections were held in 1988 aid Pakistan Peoples Party, in National Assembly secured 93 seats and won a simple majority. Likewise, Pakistan Peoples Party won and formed Government in the Province of Sindh and a coalition Government in the province of Sarhad. Pakistan People's Party lost in the provinces of Punjab and Balochistan, in which Governments were formed by Messrs Mohammad Nawaz Sharif of IJI and Nawab Mohammad Akber Khan Bugti respectively, who did not see eye to eye with Federal Government of Pakistan Peoples Party. 'Mr. Ghulam Ishaq Khan was a Minister in the Martial Law Government of late General Mohammad Ziaul Haq since its very inception and was Chairman, Senate, at the time when General Mohammad Ziaul Haq as President of Pakistan, died in an unfortunate accident of aircrash. As required under the Constitution, Mr. Ghulam Ishaq Khan took over as Acting President of Pakistan and subsequently was elected to that post by the electoral college composed of both Houses of Parliament and Provincial Assemblies with full support of Pakistan Peoples Party in the Nationai Assembly as well as in other forums. There is no dispute about the fact that Pakistan Peoples Party had formed Governments ,at the Centre and in two provinces in the face of inherent setbacks and handicaps. At the Centre. Pakistan Peoples Party had a very simple majority with 93 seats in National Assembly. There was tough opposition from IJI which was composed of several political parties which had made electoral alliance. When the Government was formed, Pakistan People's Party had in National Assembly 93 seats and IJI had 54 with 40 independents and remaining seats with other parties. This gave temptation for horse-trading and tug of war. In Sindh Assembly though Pakistan Peoples Party had comfortable majority but had formed the Government with support of MQM. In the Province of Sarhad, Peoples Party; secured 20 seats and formed Government in coalition with other Parties, when IJI had 28 members.
173. 21.Federation of Pakistan is covered in the Constitution in, Part III containing Articles 41 to 49. This Chapter highlights powers and tenure of offices of two high personages namely, President and Prime Minister. It is, therefore, clear that Federation of Pakistan is composed ,of both the President and Prime Minister and their powers and duties are also separately specified. Article 46 provides that it is the duty, of the Prime Minister to communicate to the President all decisions of the Cabinet relating to the administration of the affairs of the Federation and proposals for legislation and also to make available to the President any such information as stated above as the President may call for. President can send back decision of Prime Minister or a Minister to the Cabinet if such decision is not considered by the Cabinet. Article 48 provides that the President shall act on the advice of the Cabinet or the Prime Minister. From what is stated above, it appears that Prime Minister is head of the executive and the President is head of the State and both together have Constitutional roles to play as mentioned therein. President also has power under Article 58 of the Constitution to dissolve the National. Assembly as incorporated therein by 8th, Amendment.
174. 22.Ground (b) in the order of dissolution mentions the fact that Government of Federation has wilfully undermined and. Impaired the working of the Constitutional arrangements and usurped the authority of the Provinces and of such institutions (Council of Common Interest and National Finance Commission). Article 153 of the Constitution envisages appointment by the President of a Council of Common Interest, consisting of Chief Ministers of Provinces and equal number of members from the Federal Government to be nominated by the Prime Minister from time to time.
175. This Council is responsible to the Parliament and shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and in entry 34 (Electricity) in the Concurrent Legislative List. Decision of the Council is to be expressed in terms of opinion of majority and Parliament in joint sitting, by resolution, can issue directions through the Federal Government to the Council. If the Federal Government or Provincial Government is dissatisfied with the decision of the Council, it may refer the matter in a joint sitting whose decision in this behalf shall be final.
176. 23.Charge against the Government of Federation is that it has not allowed the Council to discharge its constitutional functions despite persistent demands of the Provinces. In this context, reference to letter of President No.27 of 1989 addressed to the Prime Minister on the subject of Council of Common Interests would be useful. This letter is dated 18th June, 1989. The President had written this letter to the Prime Minister after receipt of copies of two letters from Chief Ministers of Punjab and Balochistan highlighting imperative necessity of converting a meeting of the Council of Common Interests in order to discuss the issues which remained deadlocked. In the said letter, reference is made to a Senate resolution passed unanimously in support of calling the meeting of the Council. In the record of the High Court, there is a file containing documents produced by both parties in support of their contentions. In that file there is a letter from Prime Minister to President dated grid August, 1989. This letter appears to be a reply from Prime Minister to the President of his letter mentioned above on the subject of calling the meeting of the Council. It appears from the letter that meeting of the National Economic Council took place on 23-5-1989 and the following two paragraphs from the said letter are reproduced as under: 11.The allegation about the "deadlock" is not correct. The meeting of the National Economic Council took place in a very congenial atmosphere and it was only towards the concluding stage that some reservations were expressed by the two Chief Ministers. There were duly noted for consideration. The assertion by the Chief Ministers for convening a meeting of the Council of Common Interests on the allegation that there was a "deadlock" in the National Economic Council presumes that the Council is an appellate or supervisory body designed to oversee the National Economic Council. This assumption of the Chief Ministers is not correct as the Council is not an appellate or supervisory body to which recourse could be made to challenge decisions of the National Economic Council.
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177. 24.It appears from the perusal of documents and letters produced on this subject that insistence on reference of the deadlocked issues in the Council to the joint sitting of Parliament was for the reason that in Senate Government of People's Party at the Centre had no majority or substantial support as this forum was already in existence when Peoples Party was inducted into power with simple majority in National Assembly and negligible support in Senate, which was predominated by 1JI.
178. 25.Article 160 of the Constitution envisages constitution of National Finance Commission consisting of Minister of Finance of the Federal Government and such Ministers of the Provincial Governments and such other persons as may be appointed by the President after consultation with Governors of the Provinces. Stand taken by Mr. Raja Anwar, counsel for the petitioner is that Government of Pakistan Peoples Party could not be held responsible for the delay alleged. This Commission was set up in 1974 and gave interim award in 1975 with which Provinces were satisfied. This Commission was reconvened on 25-7-1985 during the Government of Mr. Mohammad Khan Junejo, but since there was no objection to the interim award by any Province, hence there was no need of calling the session.
179. 26.In ground (b) of the order of dissolution, last item (iv) is that Senate, which is representative of Federating Units under Article 59 and is an integral part of Parliament had been ridiculed. Although in the ground it is not stated specifically as to who is ridiculing Senate but Ms. Benazir Bhutto has filed affidavit in the High Court during of Constitutional petition in which she has denied the charge by saying that she did not make remarks in respect of Members of the Senate but those remarks pertained to ex-members of Majhs- e-Shoora constituted by General Ziaul Haq in 1985, who were hand-picked b) a man who had illegally overthrown elected Government.
180. 27.In ground (c) of dissolution order, charge is with regard to corruption and nepotism in the Federal Government, and authorities and agencies and corporations and banks working under it. In the written statement filed by the Federation of Pakistan, specific instances of favouritism and nepotism are alleged against former Prime Minister (Ms. Benazir Bhutto), on the basis of which references have been filed by the President against her for her disqualification, which are pending in the forums set up under Presidential orders. Since these matters are sub judice, it will not be proper to say anything which may cause prejudice against one party or the other.
181. 28.Ground (d) in the order of dissolution is that the Federal Government had failed in its duty under Article 148(3) of the Constitution to protect Province of Sindh against internal disturbances despite heavy loss of life and property. In this respect, stand taken on behalf of the petitioner is that matter relating to law and order situation in the Province was responsibility of the Province as enshrined in the Constitution. It is stated in the rejoinder riled in the High Court that Government of PPP entered into accord with MOM accommodating its members in the Sindh Cabinet. Due to certain reasons there was unilateral break-up of the accord by MQM which had withdrawn support from the Government. The Provincial Government was doing its level best to deal with law and order situation as required under the Constitution and provisions of relevant laws. On this subject, there were several meetings between the Federal Government and the Provincial Government of Sindh and exchange of letters. Took place between President, Prime Minister and the Governor of Sindh. In fact joint efforts were made sincerely to deal with the situation of law and order in Sindh to find a permanent solution. It is submitted on behalf of the petitioner that Federal Government and Government of Sindh wanted assistance of the army to the limited extent of aiding the civilian government as contemplated under the provisions of Criminal Procedure Code but for some reason could not succeed in carrying out amendment in section 138-A of Criminal Procedure Code.
182. One suggestion from the Provincial Government was that unlicensed arms should be recovered from people without any discrimination. Then unpleasant incident took place in Hyderabad on 26th and 27th May, 1990 in Pacca Qila. There were so many casualties in the firing. President wrote a letter on 28th May, 1990 addressed to the Prime Minister, asking hor to appoint judicial enquiry Commission to fix the responsibility for the events that took place in Hyderabad expressing his opinion in favour of use of armed forces in aid of civil power as contemplated under Article 245 of the Constitution.
183. 29.In order to solve the problem of law and order in the Province of Sindh it was not necessary to dissolve the National Assembly and all other Provincial Assemblies and dismiss the Governments at Centre and in provinces. This problem could have been sorted out within the four corners of the Constitution and laws firstly by the Provincial Government, failing which by the Federal Government, which has been allowed several options in the Constitution.
30. In paragraph (e) of the dissolution order, charges are that Government of Federation has violated provisions of the Constitution and the law inasmuch as superior judiciary has been publicly ridiculed and statutory corporations, authorities and banks have been misused for political ends and Civil Services of Pakistan have been undermined by disregarding Articles 240 and 242.
184. And further powers under Article 45 have been exercised by the Government without prior approval of the President.
185. 31.My learned brother Shafiur Rahman, J. In his judgment in this case, conferring validity on the order of dissolution,- has held that grounds (c) (corruption and nepotism in the Federal Government), (e) (ii) (misuse for political ends, of statutory corporations, authorities, and banks) and (e) (iii) (undermining Civil Services of Pakistan) are independently not sufficient to warrant action of dissolution. I am of the view that grounds mentioned above not only independently but collectively also are not sufficient to justify dissolution of Assemblies for the reasons stated above.
186. These grounds do not fulfil and satisfy criteria laid down in the case of Haji Saifullah Khan, supra.
187. Requiring that discretion conferred by Article 58(2) (b) of the Constitution on the President cannot be regarded to be absolute but is deemed to be qualified one in the sense that it is circumscribed by the object of law that confers it. Further obligation is cast on the President that before exercising his discretion he has to form his "opinion" that a situation has arisen which necessitates grave step of dissolving the National Assembly. Within the framework of the Constitution several other remedial measures were available in the Constitution which could have been taken instead of resort to the dissolution of Assemblies. Under Articles 54 and 56, joint session of both Houses could be summoned by the President and addressed by him. Under Article 186 President could obtain from the Supreme Court opinion on any question of law which he considers to be of a public importance. In Part X of the Constitution are available emergency provisions from Articles 232 to 237 which provide remedies for dealing with emergencies on account of war or internal crises including failure of Constitutional machinery in the Province. Under Article 267, President is authorised for the purpose of removing any difficulties or for bringing the provisions of the Constitution into effective operation, to issue order directing that provisions of the Constitution specified therein shall have effect subject to such adaptation as he may deem to be necessary or expedient. Such order shall be laid before both Houses and shall remain in force until disapproved by resolution by each House or in case. Of disagreement by resolution in a joint sitting.
188. 32.In addition to what is stated above, I am also of the view that impugned order of dissolution inherently suffers from mala fides for the following reasons: (a)Before the impugned order was passed, it is alleged on behalf of the petitioner and the fact is of public knowledge that IJI also had indulged in horse-trading or luring away of members of the National Assembly but this aspect was ignored.
189. (b)IJI which was an opposition in National Assembly had formed government in Punjab which is the largest Province in Pakistan, hence practical difficulties were created for the Federal Government, but that aspect was not considered.
190. (c)After dissolution of National Assembly, which had lost utility and efficacy as mentioned in the order of dissolution, Leader of Opposition of that Assembly was appointed as Care-taker Prime Minister, who had lost election in Sindh, when any other person not connected with politics also could have been appointed in furtherance of impartiality.
191. (d)In Punjab Mr. Nawaz Sharif of I.J.I. Was allowed to continue as Caretaker Chief Minister while in Balochistan Mr. Humayun Khan Mari, son-in-law of Mr. Akber Khan Bugti, was appointed as Care- taker Chief Minister. In Sindh Jam Sadiq Ali, a dissident member of PPP was inducted as Care-taker Chief Minister, who was, at the relevant time, not elected representative.
192. (e)No references were filed against Ministers or public representatives of any other political party except PPP in spite of the fact that there were allegations against them of serious nature.
193. 33.It is apparent from what is stated above and impression is unavoidable that object behind order of dissolution was not only that Government of that time be toppled but there was also motivation with calculated moves to tarnish image of Pakistan Peoples Party in the eyes of people so that it should be routed in the election and not returned to power again.
194. 34.For facts and reasons stated above, I am of the view that order of dissolution passed by the President is not sustainable under the provisions of the Constitution and law. This action cannot be defended or justified on technical grounds of construction of words used in the language of Article 58(2)(b) of the Constitution or the fact that on the same subject, Constitution Petition was filed in one High Court by some person not directly concerned, which was dismissed and against that no Petition was filed in the Supreme Court for leave to appeal, hence judgment of High Court in that case has attained finality and that factor would deter Supreme Court from giving final judgment in this case.
195. 35.In this case, verdict of the people in elections should have been accepted and the Government with slight majority which had to function with inherent setbacks and limitations, should have been allowed to complete its tenure with corrective and remedial measures taken appropriately according to the provisions of the Constitution and the law. I am also of the view that relief of restoration of National Assembly cannnot be granted as held in Haji Saifullah Khan's case mentioned above that after dissolution of the Assembly elections took place with full participation of political parties including Ms. Benazir Bhutto, who is now leader of the Opposition in the present parliamentary set up. For reasons aforesaid, leave is refused.
196. (Sd.)
197. (Sajjad Ali Shah, J)
198. ORDER OF THE COURT By a short order dated 4th November, 1991, this petition was dismissed.
199. The detailed leading judgment by Mr. Justice Shafiur Rahman remaining as Court judgment, some of us have also expressed their views on various aspects of the matter. They as individual opinions having been placed on record this matter stands disposed of.
200. (Sd.)
201. (Muhammad Afza1 Zullah, CJ.)
202. (Sd.)
203. (Nasim Hasan Shah, J.)
204. (Sd.)
205. (Shafiur Rahman, J.)
206. (Sd.)
207. (Sand Saood Jan, J.)
208. (Sd.)
209. (Naimuddin, J.)
210. (Sd.)
211. (Abdul Shakurul Salam, J.)
212. (Sd.)
213. (Abdul Gadeer Chaudhry, J.)
214. (S d.)
215. (Ajmal Mian, J.)
216. (Sd.)
217. (Rustam S.. Sidhwa, J.)
218. (Sd.)
219. (Muhammad Afzal Lone, J.)
220. (Sd.)
221. (Sajjad Ali Shah, J.)
222. (Sd.)
223. (Wali Muhammad Khan, J.)
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