AJMAL MIAN, J.- By this common judgment, 1 intend to dispose of the above appeals which are with the leave of this Court and are directed against the judgments dated 15.3.1993 passed by a Division Bench of the High Court of Sindh in the above-mentioned Constitution Petitions, filed by the respondents in the above appeals against the present appellants for challenging the various notifications issued by appellant No.2 under Section 25-B of the Customs Act, 1969, hereinafter referred to as the Act, for fixing the value of goods specified in the First and Second Schedules to the Act for the purpose of levying custom duties under the Act or any other law for the time being in force, allowing the same in the following terms:- "(a) It was within the powers and competence of the President of Pakistan to issue an Ordinance touching a subject (Money Bill) covered by clause (2) of Article 73 of the Constitution of Pakistan, 1973, as provided in Article 89 of the same Constitution. Accordingly the Finance Ordinance of 1988, as regards Section 5 thereof, to the extent of bringing about insertion of Section 25-B in the Customs Act, 1969, during the period of its operation, is a valid piece of legislation.
(b) The insertion of Section 25-B of the Customs Act, 1969, as above, pursuant to such Ordinance and issuance of Notification bearing No. 610(1)/88 dated 30.6.1988 by the Central Board of Revenue, in exercise of powers thereunder are also, accordingly, valid. However, both Section 25-B and the said notification ceased to remain operative upon the expiry of four months' time from the date of the promulgation (26.6.1988) of the referred Finance Ordinance II of 1988, such Ordinance on efflux being deemed to have been repealed in terms of Article 89(2)(a)(i) of the Constitution of Pakistan.
(c) The follow-up Ordinance namely, the Finance (Revised) Ordinance, XXII of 1988, issued by the President of Pakistan on 26.10.1988, with respect to re-insertion of Section 25-B in the Customs Act, 1969 is ab initio void and of no legal effect, the President of Pakistan having no power whatsoever to re-enact an Ordinance, upon the expiry of four months' period from the promulgation of a previous Ordinance, which in this case was Finance Ordinance II of 1988.
(d) All rights acquired, obligations accrued and liabilities incurred pursuant to Section 25-B of the Customs Act and notifications or orders issued thereunder while Finance Ordinance II of 1988, occupied the field were and remain valid, since such would fall in the category of past and closed transaction. However, any notification or order issued in terms of Section 25-B and in exercise of delegated powers under Notification bearing No. 610((1))/88 dated 30.6.1988 beyond 26.10.1988 when Section 25-B ibid, stood repealed upon the deemed repeal of Ordinance II of 1988 would be in-valid in law, except in situations covered by Article 264(c) of the Constitution.
This results from the delegated power having ceased to be effective upon the expiry of Ordinance II of 1988 and the corresponding repeal of the relevant provision of law whereunder Notification No. 610((1))/88 of the Central Board of Revenue was issued. Accordingly the levies and the demands raised pursuant to the contravening notifications on the strength of Notification No. 610((1))/88 dated 30.6.1988 detailed in each of the petitions would be invalid and of no legal effect. Resultantly, he relevant notifications no longer holding the field and there being no independent delegation and no notification on the strength of a subsisting delegation under Section 25-B of the Customs Act, which having been re-enacted under the Finance Act of 1988, could encompass a fresh delegation by the Central Board of Revenue but no corresponding resort thereto having been made the cases, covered by these Constitutional Petitions, upon the foregoing findings, shall have to go back to the Customs Authorities and assessments shall have to be made in terms of Section 25 of the Customs Act, whereunder, till the promulgation of Section 25-B ibid, such matters were being dealt with. The Central Board of Revenue however, would be free to issue fresh notifications in terms of Section 25-B of the Customs Act, 1969, as re-enacted under the Finance Act of 1988.
To the foregoing extent but without any orders as to costs the above- noted Constitutional Petitions stand allowed subject, as we have said, to reasons, which are to follow."
2. The brief facts are that the respondents imported various items of goods of foreign origin from abroad. Upon arrival of the goods, they filed bills of entry under the Act for the clearance of their respective consignments. Appellant No.1 i.e. The Collector of Customs (Appraisement), department Karachi, on the basis of notified valuation under Section 25-B of the Act demanded the payment of customs duty etc., which demands were resisted by the respondents. Eventually, the above Constitution Petitions were filed, which were allowed in the above terms. Thereupon the official appellants filed petitions for leave to appeal, which were granted to consider the following questions:-
(i) whether in the present case the- President could issue validly Ordinance No. XXII of 1988 for re- enacting the provisions of Ordinance No.11 of 1988, which was to expire on 26.10.1938; and
(ii) whether the valuations fixed pursuance to the provisions of Section 25-B of the Act through the various notifications were to expire on the expiry of Ordinance No. II of 1988 or were to continue in view of the above re-enactment of Ordinance No. II of 1988 through Ordinance NO.XXII of 1988.
3. In support of the above appeals, Mr. Ikram Ahmed Ansari, learned Deputy Attorney General, has contended as under:-
(i) That Ordinance No. XXII of 1988 was validly enacted on 26.10.1988 in view of the fact that the National Assembly stood dissolved on the above date;
(ii) That Notification SRO No. 610((1))/88 dated 30.6.1988 issued by the Central Board of Revenue i.e. Appellant No.3 under Section 25-B of the Act, hereinafter referred to as the notification, delegating the authority contained therein to the Controller of Customs Valuation i.e. Appellant No.2 continued to be valid in view of the re-enactment of Ordinance No. XXII of 1988 and Act VI of 1988 by virtue of Section 24 of the General Clauses Act, 1897, and in consequence, all the notifications issued by appellant No.2 from time to time under Section 25-B of the Act were valid.
4. On the other hand, Mr. Sharaf Faridi, learned ASC, assisted by Mr. Attaur Rehman, who has appeared for the respondents in some of the above appeals, has urged as under:-
(i) That upon the expiry of Ordinance No. II of 1988 on 25.10.1988, the President had no power under Article 89 of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, to re-issue the same Ordinance having identical provisions in the form of Ordinance No. XXII of 1988;
(ii) That upon the expiry of Ordinance No. II of 1988 on 25.10.1988, the notification stood expired and since there was no fresh delegation under Ordinance No.XXII of 1988 and under Act No. VI of 1988, the notifications issued by appellant No.2 in exercise of the power contained in Section 25"B of the Act had ceased to operate;
(iii) That, in any case, there was a gap of one day between the expiry of Ordinance No.11 of 1988 and Ordinance No.XXII of 1988 and, therefore, there should have been fresh delegation of power by appellant No.3 and since no fresh delegation of power was made, all the notifications issued by appellant No.2 after 25.10.1988 were not valid;
(iv) That Section 24 of the General Clauses Act cannot be pressed into service to save the notification and the subsequent notifications issued by appellant No.2; &
(v) That the notifications issued by appellant No.2 in exercise of the power under Section 25-B of the Act fixing value of the various items of goods were arbitrary and, therefore, were liable to be declared as being without lawful authority.
5. Mr. Muhammad Nasim, learned ASC appearing for some of the respondents in the above appeals, adopted the above arguments of Mr. Sharaf Faridi and further submitted that there was no urgent need on 26.10.1988 for promulgating Ordinance No.XXII of 1988 and that the effect of expiry of Ordinance No.XXII of 1988 was that it was completely effaced from the statute books as if it had never been enacted and, therefore, the notification and the subsequent notifications pursuant thereof also ceased to operate.
Mr. Muhammad Muzaffarul Haq, learned ASC appearing for the respondent in Civil Appeal No. 586 of 1993, also adopted the arguments of Mr. Sharaf Faridi.
6. Before dilating upon the above contentions, it may be pertinent to give background which necessitated the issuance of Ordinance No. XXII of 1988. The late President, General Ziaul Haq, dissolved the National Assembly on 29.5.1988. Finance Ordinance No. II of 1988 was issued on 26.6.1988, which inter alia incorporated Section 25-B in the Act. The above Section reads as follows:- "25-B. Fixation of value for imports and exports.-(1) Notwithstanding anything contained in section 25, the Board or such officer as authorised by the Board in this behalf may, from time to time, by notification in the official Gazette, for the purpose of levying customs duties under this Act or any other law for the time being in force, fix the value of the goods specified in the First Schedule and the Second Schedule to this Act, at such rates as it may deem fit and subject to such conditions or limitations as it may impose.
(2) Different values may be fixed for different classes or descriptions of the same type of goods."
7. It appears that late General Ziaul Haq died in the air crash in August, 1988. Thereupon, Mr. Ghulam Ishaq Khan, who was then Chairman of the Senate, took over as the President in terms of Article 49 of the Constitution. It further seems that the above order of dissolution of the National Assembly was challenged in the Lahore High Court, which through its judgment in the case of Khuwaja Muhammad Sharif Vs. Federation of Pakistan through Secretary Cabinet Division, Government of Pakistan, Islamabad and IS others (PLD 1988 Lahore 725) held that the dissolution order was without jurisdiction. Against the above judgment ot the Lahore High Court, the matter was brought before this Court inter alia by the Federation, but the above appeal was dismissed alongwith the connected appeals through the judgment rendered on 5.10.1988 in the case of Federation of Pakistan and others Vs. Haji Muhammad Saifullah Khan and others and the other connected cases (PLD 1989 S.C. 166). This Court also did not restore the dissolved National Assembly and factually when the then Speaker of the National Assembly attempted to summon it upon the pronouncement of the above judgment by this Court, he was prohibited by this Court through a separate order, it may be pertinent to mention that in terms of clause (5) of Article 48 of the Constitution upon the passing of the above order of dissolving the National Assembly, the President was required in his discretion to appoint a date not later than MO days from the date of dissolution for the holding of general election to the Assembly. In the present case, late General Ziaul Haq did not appoint any date but Mr. Ghulam Ishaq Khan, upon assuming the office of the President, fixed 16.11.1988 for the general election of the National Assembly and 19.11.1988 for the general election of the Provincial Assemblies.
8. Since Ordinance No. II of 1988 was a Finance Ordinance, it was to be converted into an Act on or before the expiry of the same, but as the National Assembly remained dissolved notwithstanding the finding by this Court that the dissolution order was without jurisdiction, the President issued another Finance Ordinance in the form of Ordinance No.XXII of 1988. After the completion of the elections of National Assembly, Ordinance No.XXII of 1988 was converted into Finance Act (Act No. VI of 1988) on 26.12.1988.
9. Having given the above factual background, I may take up the above contentions. The first contention which requires consideration is, as to whether the President on 26.10.1988 was competent to issue Ordinance No.XXII of 1988. In this regard, it may be pertinent to refer to Article 89 of the Constitution, which reads as follows:- "89. (1) The President may, except when the National Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require.
(2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of Majlis-e-Shoora (Parliament) and shall be subject to like restriction as the power of Majlis-e- Shoora (Parliament) to make law, but every such Ordinance.
(a) shall be laid.
(i) before the National Assembly if it contains provisions dealing with all or any of the matters specified in clause (2) of Article 73, and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution;
(ii) before both Houses if it does not contain provisions dealing with any of the matters referred to in sub-paragraph (i), and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by either House, upon the passing of that resolution; and
(b) may be withdrawn at any time by the President.
(3) Without prejudice to the provisions of clause (2), an Ordinance laid before the National Assembly shall be deemed to be a Bill introduced in the National Assembly."
A perusal of the above quoted clause (1) of Article 89 indicates that except when the National Assembly is in session, the President has been empowered upon being satisfied that circumstances exist which render it necessary to take immediate action to make and promulgate an Ordinance as the circumstances may require.
It may further be noticed that clause (2) thereof envisages that an Ordinance promulgated under above clause (1) shall have the same force and effect as an Act of Parliament and shall be subject to like restriction as the power of the Parliament to make law. However, it makes it mandatory that every Ordinance shall be laid before the National Assembly (if relates to the matters specified in clause (2) of Article 73 i.e. Financial matters). It further provides that it shall stand repealed at the expiration of four months from the promulgation or if before the expiration of that period a resolution disapproving is passed by the Assembly upon the passing of that resolution Whereas the Ordinance, which does not cover the matters specified in clause (2) of Article 73 of the Constitution, is required to be placed before both the Houses and it shall stand repealed as above.
It may also be noticed that clause (3) of Article 89 lays down that without prejudice to the provisions of clause (2), an Ordinance laid before the National Assembly shall be deemed to be a Bill introduced in the National Assembly.
10. Having dealt with the relevant Article of the Constitution, I may now revert to the case law. In this regard, it may be pertinent to point out that there are two sets of cases i.e. In some cases while construing identical provisions as above Article 89, it has been held that there is no restriction as to the power of the Governor or the President to re-issue an Ordinance containing identical provisions which were the subject-matter of the expired Ordinance, whereas in some of the cases, the view found favour with the superior Courts is that the Governor or the President cannot re-issue the same Ordinance.
11. The first case on the subject seems to be the judgment of a Division Bench of Dacca High Court in the case of Moulvi Tamiz-ud-Din Ahmad Vs. The Province of East Bengal (PLD 1949 Dacca 1), in which the facts were that East Bengal Preventive Detention Ordinance, 1949 (VI of 1949) was sought to be kept alive by another Ordinance, namely, The East Bengal Preventive Detention (Continuance) Ordinance, 1949, issued on 21.4.1949, though the Provincial Assembly had met on 11.3.1949 before which the former Ordinance was laid. In the background of the above facts, it was held that as the legislature could not extend the impugned Ordinance, the Governor had no power to do so. The relevant observations read as follows: - The question here, however, is not the same. Mr. Suhrawardy claims that the impugned Ordinance would expire on the 22nd of April, 1949, and the Governor had no power to continue its life by another Ordinance specifically designed for that purpose. Under the scheme of the Act the Ordinance must die there is no provision in section 88 for its continuance by another Ordinance- and rightly so for otherwise Government by Ordinance could be continued indefinitely. In his support is the undisputed fact that the Legislature cannot extend the life of an Ordinance. That is why it legislates to continue in operation the provisions of an Ordinance, as was done by the East Bengal Ordinances Temporary Enactment and Re-Enactment Act, 1949. Mr. Suharwardy contends that as the Legislature could not extend the impugned Ordinance, so the Governor had no power to do so. We are inclined to agree with him on this point."
Then in the case of Ikhlas Ahmad Vs. Noorun Nabi Ahmad Qureshi (PLD 1958 (W.P.) Karachi 283), the question before a Division Bench of he erstwhile High Court of West Pakistan was, whether the Control of Essential Commodities Ordinance (XXI of 1956) which repeated the contents of Essential Supplies Ordinance (V of 1956) was valid. The above question was answered in the negative as under:- "The President's powers of making Ordinances are confined to emergencies which require immediate legislation and which arise when the Assembly is not in session. After the Assembly meets six weeks' time is allowed to the Government to promote a bill and obtain an Act to meet the legislative requirements of the circumstances. This being the scheme of the section, there can be no doubt that the words "shall cease to operate" are, they purport to be mandatory and that they contain by necessary implication a prohibition against extending the operation of an Ordinance beyond the statutory limit of time. In Tamizuddin's case the Governor purported expressly to extend the life of the Ordinance. Here the ordinance has been repealed and re-enacted in materially identical terms, and this process attracts mutatis mutandis the application of the words of Viscount Caldecote L.C. In Board of Trustees of Lethbridge Irrigation District v. Independent Orders of Fresters (1940 A.C. 513 at p. 534).
"This Board has never allowed such colourable devices to defeat the provisions of Ss.91 and 92.
Reference may be made to Lord Halsbury's statement in delivering the decision of the Judicial Committee in Madden v. Nelson (1889 A.C. 626). "It is very familiar principle that you cannot do that 'indirectly which you are prohibited from doing directly. The substance and not the form of the enactment in question must be regarded."
In form Ordinance V died on its repeal: in form Ordinance XXI is a fresh Ordinance but in substance Ordinance XXI by repeating the contents of Ordinance V extended the life of Ordinance V, a process prohibited by Article 69. Ordinance XXI was therefore void."
In the case of Begum Zeb-un-Nissa Hamidullah Editor and Publisher of "The Mirror", Karachi Vs. Pakistan, Through the Secretary, Ministry of Interior, Government of Pakistan (PLD 1958 S.C. (W.P.)
35), the question arose whether an Ordinance which had expired under clause (2) of Article 69 of the Constitution of Pakistan, 1956, could be re-enacted by a fresh Ordinance, but the above question was kept open.
After that the question, whether an Ordinance can be re-enacted was referred to a Full Bench of the erstwhile High Court of West Pakistan in the case of Tirathmal and others Vs. The State (PLD 1959 (W.P.) Karachi 594) comprising B. Z. Kaikais, Rahimbux P. Munshi and Qadeeruddin Ahmad JJ, upon a reference made by a learned Single Judge to the learned Chief Justice. Kaikais J., while speaking on behalf of the Full Bench, held that there was a distinction between the extension of life of an Ordinance and its re-enactment and that the former was prohibited and not the latter. The above view was taken for the following reasons:- "10. The first part of this argument I accept. When the law says an Ordinance shall cease to operate, the Governor cannot, by another Ordinance, say "it shall continue". But this part of the argument will apply only to an Ordinance by which the life of an expiring Ordinance is extended and has no application to a case of re-enactment of the provisions of an expiring Ordinance by another Ordinance, whether with or without an interval between the two Ordinances. A provision as to the expiry of an Ordinance does not necessarily imply the absence of power (in the authority promulgating the Ordinance) to promulgate another Ordinance with the same or similar context.
Such a provision may simply be a provision as to the duration of a particular Ordinance. That is what I regard clause (2) of Article 102 to be. The Constituent Assembly had to provide a period for which an Ordinance promulgated by the Governor was to remain in operation and it has provided that period in this clause. There is no ground for holding that this clause was intended not only to provide a limitation on the re-enactment of the content of the expiring Ordinance. If such was the intention there is no reason why it should not have been added in Article 102(2) that the Ordinance which has expired shall not be re-enacted. Or, while stating the restrictions on the power of the Governor to promulgate Ordinances in Article 102(1) it could have been added that his power of promulgating Ordinances was subject to the restriction that an expiring Ordinance could not be reenacted. It is to be observed that clause (1) of Article 102 states the restrictions on the power of the Governor to frame Ordinances. The restrictions, it says, are the same as those of the power of he Provincial Legislature. This was a proper place to add any further restriction that was intended.
We are dealing with a Constitution which is, by presumption, a carefully prepared document. If it was present to the minds of those who framed the Constitution that the Governor would not be entitled to re-enact an Ordinance there is no reason why they should not expressly have said so."
In the above case, the case of Ikhlas Ahmad (Supra) of the Division Bench was dissented from.
After that, in the case of The State Vs. Abdul Muhammad (PLD 1960 (W.P.) Karachi 733), the above view of the Full Bench was followed and it was reiterated that there was no bar to the re- enactment of the provisions of an expired Ordinance through another Ordinance.
Then we have the case on In: Re Shariah Enforcement (Revised) Ordinance, 1988 (N.(1).R. 1992 SD 491) of a Full Bench of the High Court of Sindh, which examined the question, whether the Shariah Enforcement (Revised) Ordinance, 1988, promulgated after the lapse of Shariah Enforcement Ordinance (I of 1988) was a valid piece of legislation. The then Chief Justice, Saiduzzaman Siddiqui and Mamoon Kazi J. Gave their separate reasons for holding that the same was not valid; whereas, Saleem Akhtar J. (as his lordship then was) agreed to the view taken by the learned Chief Justice but did not record his separate opinion. It will suffice to reproduce the relevant portion from the opinion of Saiduzzaman Siddiqui C.J., (as his Lordship then was) reads as follows:- "The next preliminary objection relates to the maintainability of petitions filed under the 2nd Ordinance. It is contended that the 2nd Ordinance was not competently promulgated by the President and as such the proceedings instituted under it are not maintainable. Mr. Khalid M. Ishaq and the other learned Counsel appearing for the petitioners did not seriously challenge this contention. A reading of the second Ordinance will show that it is reproduction of the first Ordinance. It is not disputed before us that upon expiry of the period of lour months from the date of its promulgation the lst Ordinance stood repealed. There is no power under Article 89 of the Constitution which authorised the President to repromulgate an Ordinance which stood repealed in terms of Clause 2 of Article 89 ibid, in the case of D.C. Wadhwa and others. v. State of Bihar and others (AIR 1987 SC 579), the Supreme Court of India struck down Bihar Intermediate Education Council Ordinance, 1985, as unconstitutional and void for he reason that the Governor has been repromulgating the Ordinance without getting it placed before the Assembly and approved it as an Act. To the same effect are the observations in the Moulvi Tamizuddin Ahmed Vs. The Province of East Bengal (PLD 1949 Dacca 1), where it was held that the Governor cannot extend the life of an Ordinance by promulgating another Ordinance. I am, therefore, of the view that while repay of the first Ordinance did not affect the competency of the petitions filed under it before its repeal, the petitions filed under the 2nd ordinance, are not maintainable as the 2nd Ordinance is not a valid piece of legislation."
It may be noted that in the above case, reliance was placed besides the above Dacca case on the judgment of the Indian Supreme Court in the case of Dr.D.C. Wadhwa and others Vs. State of Bihar and others (AIR 1987 S.C. 579). Since I have already dealt with the above Dacca High Court case, it may be pertinent to refer to the above case of the Indian Supreme Court. The above Indian Supreme Court case has peculiar facts inasmuch as even in the presence of the Assembly, the Governor of State of Bihar issued Ordinances repeating the same provisions instead of placing the same before the Provincial Assembly not once but repeatedly during the period from one year to 14 years. The chart of the above repetition is given in the above report at page 583, which reads as follows: - "Life-Groups Number of #tbs (Years) #the Ordinances Up to 1 59 1- 2 51 2- 3 45 3- 4 21 4- 5 21 5- 6 21 6- 7 11 7- 8 8 8- 9 4 9- 10 4 10- 11 6 11- 12 4 12- 13 13- 14 1 #tbs 256" #the Total The above table indicates that the Ordinances were kept alive by repeated promulgation from one year to 14 years. In that context, the Indian Supreme Court held that the Governor had no power to re-promulgate the same Ordinance successively without bringing it before the Legislature. It was also held that if the Executive were permitted to continue the provisions of an Ordinance enforced by adopting the methodology of re-promulgation without submitting to the voice of the Legislature, it would be nothing short of usurpation by the Executive of the law-making function of the Legislature.
Then we have a recent judgment of a Full Bench of the Lahore High Court in the case of Rehmat Khan Vs. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and 3 others (PLD 1993 Lahore 70), in which the question was that the Special Court for Speedy Trials Ordinance No.11 of 1992 which purported to re-enact verbatim he contents of earlier Ordinance No. XXXVIH of 1991, the Full Bench, after referring to some case law, held that the President was fully competent to re-enact Ordinance No. XXXVIH of 1991 and Ordinance No. II of 1992 and, therefore, the conviction and dismissal of the appeal of the petitioner by the Supreme Appellate Court did not warrant interference.
12. At this juncture I may refer to a Full Bench judgment of this Court in the case of Government of Punjab through Secretary, Home Department Vs. Zia ullah khan and 2 others (1992 S.C.M.R. 602), in which the facts were that Special Courts for Speedy Trials Ordinance (II of 1987) was promulgated by the President on 26.7.1987. The above Ordinance was replaced by an Act, to which the President gave assent on 8.11.1987 and which was published in the Gazette of Pakistan (Extraordinary) on 16.11.1987. It may be observed that subsection (2) of Section 1 of the Act provided that the Act shall remain in force for a period of one year- from the date it was assented to by the President.
However, the President promulgated amending Ordinance XIV of 1988 on 13.10.1988, whereby the above one year period mentioned in subsection (2) of Section 1 of the Act was substituted by two years. The above amending Ordinance was not placed before the Parliament with the result that it elapsed 'on the expiry of four months. The question arose, as to whether the above amended subsection (2) of Section 1 of the Act providing two years as the life of the Act in place of one year, had expired upon the expiry of the amending Ordinance or was it to continue even after the expiry of the amending Ordinance upto the expiry of two years period. In that context, Article 89 and the other relevant provisions of the Constitution were examined and I, speaking on behalf of the Full Bench, concluded as follows:- "14. We may state that, if we were to accept Mr. Irfan Qadir's above contention, the same would be violative of Article 89 of the Constitution, which envisages that, if an Ordinance of the type in issue is not approved by both the Houses before the expiry of four months from its promulgation, the same shall stand repealed. The above clear Constitutional mandate cannot be defeated by pressing into service any rule of construction of statutes or a provision of a statute which cannot be pressed in aid while construing a Constitutional provision. We may further observe that our Constitution is a written Constitution based on Federal System. It envisages trichotomy of powers between the three limbs of the State i.e. The legislature, the Executive and the Judiciary. In the above political set up the power to legislate is vested in the Parliament. However, Article 89 of the Constitution empowers the President to promulgate an Ordinance when the National Assembly is not in Session or stands dissolved and he (the President) upon being satisfied that the circumstances exist which render it necessary to take immediate action. Such an Ordinance is to last, at the most, for four months, if not approved or if not rejected .By the parliament earlier or withdrawn by the President in terms of sub-clause (a) of clause (2) of the above Article 89 of the Constitution.
The rationale behind providing an outer limit of four months for an Ordinance seems to be that even if the National Assembly or a Provincial Assembly stands dissolved at the time of promulgation of an Ordinance, the election of it is to take place within 90 days from the date of its dissolution in terms of clause 5 of Article 48 of the Constitution. Since Ordinance XIX of 1988 was not placed for approval before the Parliament within the above time limit of four months in terms of sub-clause (a) of clause (2) of the Article 89, it stands repealed with the amendments contained therein upon the expiry of four months from the date of its promulgation."
13. It may be pointed out that in all the above cited and discussed cases, the common feature was that the Assembly concerned was not dissolved and its duration had not expired. A second Ordinance was issued while the Assembly concerned was still functioning and, therefore, the above cases are distinguishable from the facts of the present case not only that the Assembly stood dissolved when Ordinance No.11 of 1988 was to expire on 25.10.1988 or 26.10.1988, but the same was not allowed to function by this Court after having held on 5.10.1988 that the dissolution order was without jurisdiction. In other words, if this Court would have restored the Assembly on 5.10.1988, Ordinance No.11 of 1988 which was a Finance Ordinance, could have been placed before the National Assembly as there would have been still about three weeks available for getting it converted into an Act. The question, therefore, arises, whether in the above factual background, can it be held that Finance Ordinance No. XXII of 1988 was not validly promulgated keeping in view that in order to recover the revenue and in order to run the State it was a matter of necessity to have such an Ordinance. At this juncture, I may refer to the opinion given by .This Court upon Reference No.1 of 1988 made by the President under Article 186 of the Constitution to solicit the opinion of this Court on the following question:- (PLD 1989 S.C. 75)
''In view of the aforementioned circumstances what measures may be adopted to enable the Federal and Provincial Governments to authorise incurring of expenditure out of the Federal and Provincial Consolidated Funds mentioned above in the absence of National and Provincial Assemblies after 31.10.1988 till the respective Budgets are passed by the new National and Provincial Assemblies to be elected in the ensuing general elections as aforesaid."
The above Reference was heard by the F.C. Headed by the then learned Chief Justice and his ten companion Judges. Three opinions were recorded; the majority opinion was of Muhammad Haleem, C.J., Dr. Nasim Hasan Shah, Abdul Kadir Shaikh, Javed Iqbal, Ghulam Mujaddid, Saad Saood Jan, Usman Ali Shah, Ali Hussain Qazilbash and Naimuddin JJ.; whereas Muhammad Afzal Zullah and Shafiur Rahman JJ. Gave their separate opinions.
14. Before dealing with the above opinions, it may be pertinent to refer some of the relevant provisions of the Constitution. Article 78 provides that all revenues received by the Federal Government, all loans raised by the Government and all moneys received by it in repayment of any loan, shall form part of a consolidated fund, to be known as the Federal Consolidated Fund. It further provides that all other moneys inter alia referred to in sub-clauses (a) and (b) of clause (2) thereof shall be credited to the Public Account of the Federation. It may further be pointed out that Article 79 lays down that the custody of the Federal Consolidated Fund, the payment of moneys into that fund, the withdrawal of moneys therefrom, the custody of other moneys received by or on behalf of the Federal Government, their payment into and withdrawal from, the Public Account of the Federation and all matters connected with or ancillary to the matters aforesaid shall be regulated by the Act of Parliament or until provision in that behalf is so made by rules made by the President. Whereas Article 80 of the Constitution deals with the Annual Budget Statement1; Article 81 mentioned the items of expenditure which shall be charged upon the Federal Consolidated Fund, namely, the items mentioned in clauses (a), (b), (c), (d) and (e) of the above Article. Whereas Article 82 relates to the procedure relating to Annual Budget Statement. It contemplates that the items which are charged upon the Federal Consolidated Fund can be discussed in the National Assembly but the same shall not be submitted to the vote of the National Assembly. It further provides that other items of annual expenditure in the Annual Budget Statement shall be submitted to the National Assembly in the form of demands for grants, and the Assembly shall have power to assent to, or to refuse to assent to, any demand, or to assent to any demand subject to a reduction of the amount specified therein. It may also be stated that proviso to clause (2) provided a special provision for a period of ten years from the commencing day or the holding of the second general election to the National Assembly. It is not necessary to deal with it any further.
Clause (3) of the above Article lays down that no demand for a grant shall be made except on the recommendation of the Federal Government.
15. It may further be pointed out that Article 83 provides that the Prime Minister shall authenticate by signature a schedule specifying the items of expenditure mentioned in sub-clauses (a) and (b) to clause (1) thereof, whereas clause (2) provides that the schedule so authenticated shall be laid before the National Assembly, but shall not be open to discussion or vote thereon. It may also be noticed that clause (3) lays down that subject to the Constitution, no expenditure from the Federal Consolidated Fund shall be deemed to be duly authorised unless it is specified in he schedule so authenticated and such schedule is laid before the National Assembly as required by clause (2). It may further be observed that Article 84 deals with supplementary and excess grants in respect of any financial year.
16. It may also be stated that Article 85 lays down that notwithstanding anything contained in the foregoing provisions relating to financial matters, the National Assembly shall have the power to make any grant in advance in respect of the estimated expenditure for a part of any financial year not exceeding four months pending completion of the procedure prescribed in Article 82 for the voting of such grant and the authentication of the schedule of the authorised expenditure in accordance with Article 83 in relation to the expenditure. Whereas Article 86 has direct bearing on he above President's Reference and, therefore, it may be advantageous to reproduce the same, which reads as follows:- "86. Notwithstanding anything contained in the foregoing provisions relating to financial matters, at any time when the National Assembly stands dissolved, the Federal Government may authorize expenditure from the Federal Consolidated Fund in respect of the estimated expenditure for a period not exceeding four months in any financial year, pending completion of the procedure prescribed in Article 82 for the voting of grants and the authentication of the schedule of authorized expenditure in accordance with the provisions of Article 83 in relation to the expenditure."
It may be noted that the above Article deals with the situation when the National Assembly stands dissolved. It authorises the Federal Government notwithstanding anything contained in the foregoing provisions relating to financial matters to authorise expenditure from Federal Consolidated Fund for a period not exceeding four months in any financial year pending completion of the procedure prescribed in Article 82 for the voting of grants and the authentication of the schedule of the authorised expenditure in accordance with the provisions of Article 83 of the Constitution relating to the expenditure.
17. The National Assembly in the case in hand was dissolved on 29.5.1988 and the period of four months during the financial year 1988-89 was to expire on 31.10.1988 as per above opinion in the President's Reference. More or less with the variation in dates, identical situation was obtaining in the four Provinces in terms of Article 126 of the Constitution about the authorisation of expenditure by the Provincial Governments for a period not exceeding four months, the President made reference on the above quoted question. The majority view was that Article 86 expressly provided that the Federal Government could authorise the expenditure at any time after the dissolution of the National Assembly not exceeding four months in any financial year pending completion of the procedure prescribed in Article 82, the President could not authorise the above expenditure beyond four months through an Ordinance. They opined as follows:- "Since the National Assembly and the Provincial Assemblies will stand re-constituted on 16.11.1988 and 19.11.1988 respectively it is only after those dates that the provisions of Article 86 can become operative. However, by these dates the period of four months prescribed for completing the procedures under Articles 82 and 83 will have expired. But as already observed the scheme of Article 86 is that after the dissolution of the National Assembly it must be reconstituted to enable it to comply with the procedure under Articles 82 and 83. This shows that the scheme of this Constitutional provision is that at least one month must be available with the re-constituted National Assembly for compliance with the procedure prescribed under Articles 82 and 83. Thus, in the facts and circumstances of the present case a period of one month after the declaration of results of the General Elections scheduled for 16-11-1988 and 19-11-1988 would yet be available to the Federal and Provincial Governments for authorization of the expenditure from the Consolidated Funds concerned. Needless to say that it is well-established that a Constitution has to be interpreted as an organic whole and its various provisions read as parts of one integral scheme and operated together in harmony.
We would like to make it clear that the present opinion has been rendered in view of the special facts and circumstances of this case where the election could not be held within ninety days on account of the lapse, inter alia, of the Parliament in not complying with the provisions of Article 222(2) read with Article 51(3), and this Court has also in its order dated 5-10-1988 held that in the exceptional situation, the elections scheduled on 16-11-1988 and 19-11-1988 are valid under the Constitution. This opinion, therefore, cannot serve as a precedent for the future or can be understood to be laying results of the General Elections scheduled for 16-11-1988 and 19-11-1988."
Whereas Shafiur Rahman J. In his separate opinion first inter alia referred to the meaning of the term "session" employed in clause (1) of Article 89 of the Constitution and quoted with approval its meaning given in May's Parliamentary Practice i.e. "A session is the period of time between the meeting of a Parliament, whether after a prorogation or a dissolution, and its prorogation." He was of the view that upon the expiry of four months under Articles 86 and 126 of the Constitution, the President and the Governor could issue an Ordinance for authorisation in terms of Articles 89 and 128 respectively for a period of four months and three months respectively and not beyond that. His reasoning was as follows:- "Not only the meaning is very clear, the suggestion has the effect of giving rise to a legislative vacum during the period that the National Assembly stands dissolved and new National Assembly comes into existence as a result of the election. Howsoever urgent or imminent the requirement no law can be made to meet the situation during this period. The expression 'session' in relation to Parliaments/Assemblies having been given a definite meaning, there is no reason why a different meaning should be given, moreso when another Constitutional impasse is likely.
So far as Article 86 is concerned another provision to be noted is Article 82(3) which provides:- "No demand for a grant shall be made except on the recommendation of the Federal Government."
Article 86, thereafter empowers Federal Government in a given situation to authorise expenditure from Federal Consolidated Fund for a period not exceeding four months. This is a Constitutional entrustment of legislative function on terms to the Federal Government and this is an exception' to what is provided in Article 83(3). The capacity of the Federal Government while exercising this power is distinct in the Constitutional framework from the Ordinance making power of the President (Article 89). As regards the object of the two powers, the distinction should be equally clear. As long as power under Article 86 is available, the precondition required for exercise of power under Article 89 will not and cannot arise. It is only when that reserve power under Article 86 gets exhausted that the exceptional reserver power recognized in Article 89 comes into existence. Such reserve and exceptional powers have been considered consistent with free Government only when their control is lodged elsewhere than in the executive who exercises them. Such a power has been likened to a safety valve to meet extraordinary situations and designed to save and not to destroy democracy. Such provisions remedy the rigidity of a Federal Constitution and make it flexible to an extent to be capable of meeting the challenges not totally outside the ken of the framers of the Constitution. However, it should be clear that by its very nature in the context of the present impasse the power under Article 82(2) and Article 128 is capable of being invoked once so as not to exceed in all the period of four months under Article 89(2)(a) and three months under Article 128(2)
(a)."
18. It may be pertinent to point out that in the above quoted majority view it was highlighted that the elections could not be held within 90 days on account of the lapse inter alia on the Parliament in not complying with the provisions of Article 222(2) read with Article 51(3) of the Constitution and that this Court had also in its order dated 5.10.1988 held that in the exceptional situation, the elections scheduled on 16.11.1988 and 19.11.1988 were valid under the Constitution but it was also made clear that the above opinion could not serve as a precedent for the future or could be understood to be laying down the law that the elections arc held after the stipulated period of 90 days, the Government concerned shall still have some period beyond four months prescribed under Article 86 to incur expenditure from the Federal Consolidated Fund.
19. It may be observed that Article 89 of the Constitution does not expressly prohibit against the re- enactment of an expired Ordinance, but the same provides that if an Ordinance is not laid before the Assembly and approved, it shall lapse on the expiry of four months as pointed out by Mr. Kaikais J. In the case of Tirathmal and other Vs. The State (Supra) while construing more or less an identical provision of 1956 Constitution. In spite of absence of an express prohibition in some of the above cases, it has been held that the President or the Governor cannot re-enact an expired Ordinance. In the case of Government of Punjab through Secretary, Home Department Vs. Zia Ullah Khan and 2 others (Supra), I speaking on behalf of the Full Bench (comprising five Judges), highlighted the rationale for holding so, the relevant portion of the above judgment has been reproduced hereinabove in para 12 and need not be repeated. However, it will suffice to observe that the underlined idea/philosophy seems to be that the legislative power vests in an Assembly, which power cannot be usurped by a Head of the State or a Province while the Assembly exists. The above reason will not hold good if an Assembly stands dissolved and for a justifiable reasons, it has not been re-constituted within the period specified in the relevant Article of the Constitution.
I am inclined to hold hat if the National Assembly does not stand dissolved, the President cannot usurp the legislative power of the National Assembly by repeating the same Ordinance without submitting it in terms of Article 89 of the Constitution to the National Assembly. Kaikais J. Though has given weighty reasons in the case of Tirathmal (Supra) for taking a contrary view, but in my humble view, it runs counter to the spirit/scheme of the Constitution as pointed out by me in the case of Government of Punjab through Secretary, Home Department Kv. Zia Ullah Khan and two others (Supra). But if the National Assembly stands dissolved, and its elections could not take place within the stipulated period of 90 days as provided in clause (5) of Article 48 of the Constitution for a reason not attributable to the President and such delay is found by the competent Court justifiable, the President will be competent to re-enact an Ordinance. Shafiur Rahman J. In his above quoted opinion has rightly pointed out that there cannot be a legislative vacuum in the interregnum between the date of dissolution and the rc-constitution of the Assemblies. A State cannot be run if for certain period there is no legislative power vested in any authority to legislate on a particular subject. The observations of Shafiur Rahman J. In the above quoted portion of his opinion, namely, "However, it should be clear that by its very nature in the context to the present impasse the power under Article 82(2) and Article 12S is capable of being invoked once so as not to exceed in all the period of four months under Article 89(2)(a) and three months under Article 128(2)
(a)" are to lie viewed in the context of the facts of the above case i.e. The elections were to be held on 16.11.1988 and 19.11.1988 and the above opinion was rendered on 24.10.1688 and, therefore, by the time new Assemblies would have been reconstituted, the Ordinance could have been placed before the National and the Provincial Assemblies within a period of four months and three months as provided lor under Articles 89 and 128(2)(a) of the Constitution respectively. The above observations do not lay down that in no case, there can be a second ordinance.
The case in hand stands on stronger footing in view of the following features:-
(i) That this Court though maintained the finding of the Lahore High Court that the order of dissolving the National Assembly was without jurisdiction but it declined to restore the same, and when the then Speaker of the National Assembly attempted to summon the Assembly, he was prohibited from doing so by this Court. If the National Assembly would have been restored on 5.10.1988, Ordinance II of 1988 could have been converted into an Act as three weeks would have still be available before the expiry of the above Ordinance, and there would not have been any need to issue Ordinance No. XXII of 1988.
(ii) That this Court in its order dated 5.10.1988 held that in view of the exceptional situation the elections scheduled on 16.11.1988 and 19.11.1988 would be valid under the Constitution.
(iii) That Ordinance II of 1988, which was to expire on 26.10.1988 was a Finance Ordinance, and therefore, it was a matter of State necessity to have a legal cover for the recovery of State revenues.
(iv) That the elections could not be held within the stipulated period on account of lapse inter alia on the part of the Parliament, in not complying with the provisions of Articles 222(2) read with 51(3) of the Constitution as pointed out in the above President Reference No.1 of 1988.
In my view, the Constitution is to be construed as an organic whole and its various provisions are to be read as a part of one integrated scheme. The widest possible interpretation is to be given to the provisions of the Constitution with the object to meet all eventualities. The efforts should be made to construe Constitutional provisions in such a way, that it may avert chaos and uncertainty in the Country and may foster its smooth functioning. The view, which I am inclined to take, is in line with the above principles of construction of a Constitutional document.
I may reinforce my above view by giving an example. Suppose the National Assembly completes its Constitutional tenure, but elections could not take place within Constitutional mandate on account of an act of God for nearly one year. Can it be said that after the expiry of a Finance Ordinance upon expiry of four months, the President cannot re-enact the same by invoking reserver power contained in Article 89 of the Constitution.
I may observe that the case of Indian Supreme Court, namely, Dr. D.C. Wadhwa and others Vs. State of Bihar and others (Supra) is an extreme case, wherein as pointed out hereinabove, the Governor of State of Bihar repeated the same Ordinance from one year to 14 years and thereby deprived the Provincial Legislative from legislating on the subjects of various Ordinances for considerable long period. The above case has no relevance to the facts of the present case.
20. Mr. Sharaf Faridi's second to fourth contentions referred to hereinabove in sub-paras (ii) to (iv) of para 4 can be conveniently dealt with together. Since I have held that Ordinance No. XXII of 1988 was validly promulgated by the President and as I am of the view that there was no gap between the expiry of Ordinance No.11 of 1988 and expiry of Ordinance No. XXII of 1988 and Act No. VI of 1988, inasmuch as the first Ordinance was promulgated on 26.6.1988 and the second Ordinance on 26.10.1988 and the above Act was enacted on 26.12.1988, the notification delegating power by appellant No.3 to appellant No.2 under Section 25-B of the Act was saved by virtue of Section 24 of the General Clauses Act. In this regard, it may be pertinent to quote Section 24 of the General Clauses Act, 1897, which reads as follows:- "24. Continuation of orders, etc. Issued under enactments repealed and reenacted. Where any Central Act or Regulation is, after the commencement of this Act, repealed and re-enacted without modification, then unless it is otherwise expressly provided, and appointment, notification, order scheme, rule, form or bye-law, made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so reenacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the provisions so re-enacted and when any Central Act or Regulation, which, by a notification under Section 5 or 5A of the Scheduled Districts Act, 1874 (XIV of 1874), or any like law, has been extended to any local area, has, by a subsequent notification been withdrawn from and re-extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re-enacted in such area or part within the meaning of this section."
A perusal of the above quoted Section shows that it inter alia lays down that if any Central Act or Regulation is, after the commencement of the above Act, repealed and re-enacted without modification, then unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form or byelaw, made or issued under the provisions so re-enacted.
21. However, Mr. Sharaf Faridi has vehemently urged that while considering the effect of repeal of a law under Article 264 of the Constitution, the provisions of the General Clauses Act cannot be pressed into service. He has inter alia relied upon the case of Government of Punjab Vs. Zia Ullah Khan (Supra), in which I, speaking on behalf of the Full Bench, inter alia held that while considering the effect of repeal of the Ordinance referred therein, only Article 264 of the Constitution can be invoked in aid and no reference can be made to Section 6 or Section 6A of the General Clauses Act.
The above legal position seems to be well settled. But in the present case, I have held that Ordinance No. XXII of 1988 had validly re-enacted Ordinance No.11 of 1988 in the form of above Ordinance No.XXI I of 1988 and then Act No. VI of 1988. In this view of the matter, the effect of the repeal of any Ordinance/Act is not involved and the question is, whether any fresh notification under Section 25-B of the Act for delegating the power by appellant No.3 to appellant No.2 was required to be issued after above reenactment and whether the various notifications issued pursuant to the above delegation were saved. The answer of the above question is provided directly in the above quoted Section 24 of the General Clauses Act.
22. Mr. Muhammad Nasim, learned ASC has referred to the Principles of Statutory Interpretation by Guru Prasanna Singh about the effect of repeal, where the learned author has commented as follows:- "As a consequence of the general principle that a statute after is repeal is as completely effaced from the statute book as if it had never been enacted, subordinate legislation made under a statute ceases to have effect after repeal of the statute. This result can be avoided by insertion of saving clauses providing to the contrary. When a statute is repealed and re-enacted, section 24 of the General Clauses Act, 1897, provides for continuance of any appointment, notification, Order, scheme, rule, form or bye-law made or issued under the repealed statute in so far as it is not inconsistent with the provisions re-enacted. Such appointments, notifications, Orders etc. Are deemed to be made under the corresponding provisions of the new statute and continue to be in force unless superseded by appointments, notifications, Orders, etc., made or issued under the new statute."
The above quoted extract from the above book inter alia indicates that it has also clearly provided that "When a statute is repealed and re-enacted, section 24 of the General Clauses Act, 1897, provides for continuance of any appointment, notification, Order scheme, rule, form or bye-law made or issued under the repealed statute in so far as it is not inconsistent with the provisions re- enacted. Such appointments, notifications, Orders etc. Are deemed to be made under the corresponding provisions of the new statute and continue to be in force unless superseded by appointments, notifications, Orders, etc., made or issued under the new statute."
23. In this behalf, reference may also be made to the following cases referred to by Mr. Ikram Ahmed Ansari, learned Deputy Attorney General:-
(i) Umer Hayat Vs. Mst. Hayat Bibi and others (PLD 1958 (W.P.) Lahore 82); in which B.Z. Kaikais J. Has observed as follows as to the effect of above Section 24 of the General Clauses Act:- "The contention is that jurisdiction to grant a succession certificate belongs only to the District Judge by virtue of section 371 of the Succession Act and that an ordinary Civil Judge can be invested with jurisdiction only by a special order of the Provincial Government. Such special order, it is alleged, is absent in the present case. There is a notification of the Provincial Government of the year 1914 investing First and Second Class Sub-Judges with jurisdiction to act as District Judges under the repealed Succession Certificate Act. Learned counsel urges that the Succession Certificate Act having been repealed a fresh notification was needed and the notification under the repealed Act is of no force whatsoever. The contention fails to take notice, however, of the effect of section 24 of the General Clauses Act. In accordance with that section whenever an Act is repealed and re-enacted a notification under the repealed Act is regarded as a notification under the Act in which the provisions of the repealed Act are re-enacted. The notification of the Provincial Government is to be regarded as one under the provisions of the Succession Act which re-enacts what was contained in the Succession Certificates Act."
(ii) Han Pada Roy Choudhary Vs. The Chairman of the Municipal Commissioners of Howrah and others (AIR 1931 Calcutta 481); In the above case, a Division Bench of the Calcutta High Court, while dealing with Section 25 of Bengal General Clauses Act which corresponds to Section 24 of the General Clauses Act, 1897, observed that the effect of the above Section 25 was that if a notification was issued under a repealed enactment, it would be deemed to have been issued under the corresponding re- enacted provision until or unless it is superseded.
(iii) Emperor Vs. Karapan and others (AIR 1934 Rangoon 12); in which a Division Bench, while interpreting Section 24 of the General Clauses Act, has held that bye-law framed under repealed enactment continues to be in force unless a new bye-law is framed under the new enactment which is in identical terms with the repealed enactment.
(iv) K.N.N. Ayyangar Vs. State through Delhi Special Police, Jabalpur. (A.I.R. 1954 Madhya Bharat 101)
In the above case, a Division Bench has held that by reason of Section 24 of the General Clauses Act, a notification issued under an Ordinance continues to be in force even when the Ordinance is repealed but is re-enacted into an Act and thus a notification extending the application of the Ordinance to a particular area under the Delhi Special Police Establishment Ordinance (22 of 1946) continues to be in force under Delhi Special Police Establishment Act (25 of 1946) which has repealed the above Ordinance.
24. There seems to be judicial consensus on the construction of Section 24 of the General Clauses Act. The effect appears to be that if a statute is repealed and re-enacted, in the absence of any contrary provision in the new enactment or in the absence a new notification superseding the previous one, appointment, notification, order, scheme, rule, form or bye-law made or issued under the repealed statute, would continue to operate. In the present case since Section 25-B of the Act was couched in the same language in Ordinance Nos.11 and XXII of 1988 and Act No. VI of 1988, there was no inconsistency between the repealed statute and the re-enacted statute. In this view of the matter, the notification delegating the power under Section 25-B and the subsequent notifications issued from time to time by appellant No.2 in exercise of the above delegated power, continued to remain in force notwithstanding the expiry of Ordinances Nos.11 and XXII of 1988.
25. Before dealing with the last submission of Mr. Sharaf Faridi, I may observe that according to Mr. Muhammad Nasim, there was no urgent necessity for enacting Section 25-B as according to him, notification for fixing the valuation in respect of the goods covered by his above Constitution petition was issued first lime on 27.6.1991. The above contention is untenable for the reason, firstly, that the issuance of an Ordinance as a whole is to be considered and not a particular provision thereof and, secondly, immediately after the enactment of Section 25-B and the delegation of power by appellant No.3 to appellant No.2, a number of notifications were issued from time to time which are reflected in the judgment under appeal and, therefore, it is not correct to urge that first time the notification under section 25-B of the Act for fixing the valuation was issued on 27-6-1991.
26. Adverting to the last submission of Mr. Sharaf Faridi that in case this Court holds that there was no infirmity in the above Ordinances and the notifications, the cases should be remanded to the High Court to examine the question, whether the valuations of the various items of goods were fixed reasonably or the same were arbitrary. In furtherance of his submission, he has referred to the judgment of a Division Bench of the High Court of Sindh in the case of Phassco Hardware Co. Vs. The Government of Pakistan and 3 others (PLD 1989 Karachi 621), in which I, while heading the Bench as the Chief Justice, observed as follows:- "10. In our view a notification under section 25-B can be impugned if it can be demonstrated that the powers contained under section 25-B have been exercised arbitrarily or capriciously, for example in a case where the import value in terms of section 25 of a particular item is US Dollars 20, whereas under a notification issued under section 25-B the C.B.R, or the Officer authorised by it fixes the value at 40 US Dollars. There should be nexus between the notified value and the actual market value as observed hereinabove. But some discrepancy between the two will not vitiate the notification. In the instant case the difference between the price declared by the petitioners namely, 40 US Dollars per dozen and the notified price 42 US Dollars, comes to about only 5% and, therefore, it cannot be urged that the powers under section 25-B have been exercised arbitrarily or capriciously as to make notification illegal.
We may also point out that there will be presumption in favour of the validity of a notification under section 25-B and the burden to prove that it is not valid on the ground that the power has been exercised arbitrarily or capriciously will be on the person who so alleges."
27. I have given my serious thoughts to the above submission and I am of the view that reasonableness of the various valuations fixed for various items of goods cannot be subject- matter of an enquiry in exercise of Constitutional jurisdiction by the High Court. The above controversy requires thorough factual probe into the matter on the basis of materials to be brought on record by the parties. The remedy, if any, of the respondents is to make representations through their association to appellant No.3 and/or to approach any other competent forum. I am, therefore, not inclined to accept the above contention.
28. For the aforesaid reasons, the above appeals are allowed, with no order as to costs, and the judgments of the High Court are set aside.
Sd/- SALEEM AKHTAR, J.- I have had the privilege of reading the judgment proposed by my learned brother Amal Mian J., who has exhaustively discussed and dilated upon the provisions of the Constitution particularly Article 89 and the relevant judgments and has concluded that:-
(i) on repeal of an Ordinance after expiry of four months, the President has no power to re-enact and repeat the same, and
(ii) in the facts and circumstances of the case when the National Assembly had been dissolved, the dates of the elections were fixed by the Court which were beyond the period contemplated by the Constitution and there was no time left for placing the Ordinance for approval of the National Assembly and there being a critical situation relating to the finance and expenditure, the President was entitled to re-enact the same Ordinance as there could be no legislative vacuum during the period of election and placing the Ordinance before the National Assembly on its reconstitution.
I agree with the first conclusion that the President under the Constitution while exercising power under Article 89 has no power to re-enact the same Ordinance. So for the second conclusion is concerned, with utmost respect to my learned brother I am unable to agree with it. As will be discussed hereunder, Article 89 docs not permit re-enactment, therefore, such a power can be available if there is an exception expressly or impliedly provided by the Constitution. There is none under the Constitution. Secondly, if any emergent situation has arisen and the Constitution provides for its solution, then the functionaries have to act as provided by the Constitution and should not achieve indirectly which cannot be done directly.
2. The facts of the case have been exhaustively dealt with by my learned brother and merely to follow-up the sequence I will narrate briefly only such relevant facts which will help in appreciating the controversy before us. Itall started with the dissolution of the National Assembly on 29-5-1988.
On 26-6-1988 Finance Ordinance. 1988 (Ordinance II of 1988) was promulgated effective from 1-7- 1988 amending certain laws relating to financial matters. The Court had fixed 16-11-1988 and 19-11- 1988 for holding general elections to the National Assembly and the Provincial Assemblies respectively. Before the expiry of four months when | Ordinance II of 1988 would have expired as provided by Article 89, the President of Pakistan made a reference to the Supreme Court stating the circumstances under which the opinion was sought. The opinion is reported in Reference No.1 of 1988 made by the President of Pakistan (PLD 1989 S.C. 75). The question and the circumstances as stated by the President have been reproduced in the opinion as follows:- QUESTION "In view of the aforementioned circumstances what measures may be adopted to enable the Federal and Provincial Governments to authorize incurring of expenditure out of the Federal and Provincial Consolidated Funds mentioned above in the absence of National and Provincial Assemblies after 31-10-1988 till the respective Budgets are passed by the new National and Provincial Assembles to be elected in the ensuing general elections as aforesaid."
"The circumstances of which specific mention has been made necessitating such a reference are the dissolution of the National Assembly on 29th of May, 1988 under Article 58(2)(b) of the Constitution and that of the Provincial Assemblies of the four Provinces under Article 112(2) of the Constitution on the 30th of May, 1988 and 29th of May, 1988 (in the case of Baluchistan Provincial Assembly); the short order of Supreme Court dated 5-10- 1988 Federation of Pakistan v. Haji Saifullah Khan (1988 SCMR ! 1996) holding that the dissolution of the Assemblies was constitutionally untenable but not restoring those Assemblies in view of the Elections scheduled to be held for the National Assembly on 16-11-1988 and for the Provincial Assemblies on 19-11-1988; the total involvement of the people of Pakistan, all the political parties, the Election Commission of Pakistan and all other concerned authorities/agencies of the Federal and Provincial Governments in preparation for the elections to be held on 16-11-1988 and 19-11-1988; the Constitutional mandate in Articles 86 and 126 empowering the Federal Government and the Provincial Governments to incur expenditure from the Federal Consolidated Fund and the Provincial Consolidated Fund in respect of the estimated expenditure for a period not exceeding four months in a financial year when the Assemblies stand dissolved, pending completion of the procedure prescribed in Articles 82 and 83 in respect of the expenditure by the Federal Government and Articles 122 and 123 in respect of the Provincial Governments; the period of four months in this financial year commencing from 1-7-1988 is due to expire on 31-10-1988; even after the elections have been held some time will be required to make the National and Provincial Assemblies functional for the purposes of authorising the expenditure and in the interregnum the Federal as well as the Provincial Governments are obliged to incur the expenditure mentioned in Articles 81 and 82 as well as Articles 121 and 122 for running the affairs of the State, and the Federal Government and Provincial Governments are also obliged to repay the loans to the local and foreign creditors from time to time after 31- 10-1988. The said expenditure is unavoidable and is on account of State necessity.
Even the conduct of the general elections to be held on 16-11-1988 and 19-11-1988 as enjoined by this Court will necessitate the incurring of expenditure from the Consolidated Fund after 31-10-1988; expenditure from he Consolidated Fund will also have to be incurred for rehabilitation of flood- affecters and restoration of flood-affected areas, for augmenting and strengthening the law enforcing agencies, and for maintaining law and order in the country, in case such expenditure is not authorised after 31-10-1988 the functioning of the Federal and Provincial Governments as mentioned above, the financial and economic activities as well as the administrative, judicial and security functions of the State will be seriously jeopardised."
This reference was answered and opinion was delivered on 24-10-1988 advising that the Federal and Provincial Governments can authorise incurring of expenditure out of the Federal Consolidated Fund upto one month of the declaration of the results of the general elections. On 26-10-1988 Ordinance XXII of 1988, Finance (Revised) Ordinance, 1988 was promulgated, which was verbatim re-enactment of Ordinance II of 1988. It also reproduced section 25-B of the Customs Act (hereinafter referred to as the Act) which earlier appeared in Ordinance II of 1988 inter alia fixing the value of goods in first and second schedules to the Act for the purpose of levying customs duties under the Act or any other law for the time being in force. The respondent challenged this provision as void ab initio and of no legal effect as the President has no power to re-enact an Ordinance. The High Court accepted the Constitution Petition and held that the Finance (Revised)
Ordinance XXII of 1988 was void ab initio, the President having no power to re-enact an Ordinance upon the expiry of four months' period from the promulgation of a previous Ordinance which in this case was Finance Ordinance II of 1988. It was further held that and notification or order issued in terms of section 25-B and in exercise of delegated powers under Notification No.610((1))/88 dated 30-6-1988 beyond 26-10-1988 when section 25-B stood repealed upon the deemed repeal of Ordinance II of 1988 would be invalid except only in situations covered by Article 264 of the Constitution; As on 26-12- 1988 Finance Act was promulgated, the learned Judges of the High Court observed that the Central Board of Revenue would be free to issue fresh notifications in terms of section 25-B of the Act as re-enacted under the Finance Ad. 1988.
3. Leave was granted to consider he following questions:-
(i) Whether in the present case the President could issue validly Ordinance No.XXII of 1988 for re- enacting the provisions of Ordinance No. II of 1988, which was to expire on 26-10-1988; and
(ii) Whether the valuation fixed pursuant to the provisions of section 25-B of the Act through the various notifications were to expire on the expiry of Ordinance No.11 of 1988 or were to continue in view of the above re-enactment of Ordinance No.11 of 1988 through Ordinance XXII of 1988."
The first question has been dealt with by my learned brother in two parts as stated above. The President has no power to re-enact an Ordinance which has already expired. The scheme of the Constitution fixing time limit for holding elections, summoning the sessions of the National Assembly, Senate and the Provincial Assemblies, the maximum period intervening between the two sessions of the Assemblies and limiting the life of an Ordinance to four months, all indicate that the Constitution does not favour re-enactment of the same Ordinance. The Constitution is federal and democratic in character based on principles of trichotomy of power where legislature, judiciary and executive have their defined functions. The legislative function has been given to the President and the Governor in certain given circumstances with certain limitations and restraints. The power to issue Ordinance is contained in Article 89 of the Constitution which reads as follows:- "89. (1) The President may, except when the National Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require.
(2) An Ordinance promulgated under this Article shall have he same force and effect as an Act of Majlis-e-Shoora (Parliament) and shall be subject to like restrictions as the power of Majlis-e- Shoora (Parliament) to make law, but every such Ordinance:-
(a) shall be laid:-
(i) before the National Assembly if it contains provisions dealing with all or any of the matters specified in clause (2) of Article 73, and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution;
(ii) before both Houses if it does not contain provisions dealing with any of the matters referred to in sub-paragraph (i) and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of the that period a resolution disapproving it is passed by either House, upon the passing of that resolution; and
(b) may be withdrawn at any time by the President.
(3) Without prejudice to the provisions of clause (2), an Ordinance laid before the National Assembly shall be deemed to be a Bill introduced in the National Assembly."
A perusal of this provision will show that firstly the National Assembly should not be in session and secondly the President should be satisfied as to the existence of circumstances which require immediate action. The words 'circumstances exist which render it necessary to take immediate action' do indicate to a situation which requires immediate action for dealing with the problem at hand. On these conditions the President can promulgate an Ordinance which would be subject to such restrictions as are imposed on the legislative power of Majlis-i-Shoora to make the law.
However, a further safety value has been inserted by clause (2)(a) which requires that such Ordinance shall be laid before the National Assembly if it contains provisions dealing with all or any of the matters specified in clause (2) of Article 73 and in other cases before both the Houses. The life of the Ordinance is only four months from its promulgation or less, if before the expiration of the said period a resolution is passed by the National Assembly disapproving it. Similar is the position in cases where the Ordinance is to be placed before both the Houses. Lastly the President can withdraw the Ordinance, but such withdrawal should be either within four months of the promulgation of the Ordinance or before the resolution disapproving it is passed by the Assembly or both the Houses as the case may be. Therefore, the President does not enjoy unlettered power to promulgate the Ordinance. The period of four months provided in Article 89(2)(a)(i) & (ii) has great significance in the scheme of the Constitution. The life of an Ordinance has been limited to a maximum period of four months inter alia to maintain the democratic federal character of the Constitution, the supremacy of the legislature through the National Assembly, the Senate or the Provincial Assemblies and to avoid legislation by Ordinances. In case the President is empowered to re-enact Ordinances which lapse on expiry of four months and are not placed before the Assembly, it will amount to giving a vast power to the President to bypass the Assemblies and to rule by Ordinances. It is the scheme and intention of the Constitution that limitation has been placed on the power of the President and the life of the Ordinance is limited to a maximum period of four months. If one accepts the contention that re-enactment is permissible under the Constitution, then the restraint placed by the Constitution will be meaningless and the period of four months mentioned in Article 89 will merely become illusory. It was probably for this reason that some authorities referred to during the arguments and discussed in detail in the judgment of my learned brother show consensus against extension of the life of an Ordinance and also the re- promulgation of an Ordinance after expiry of four months. In Maulvi Tamizuddin Khan v. Province of East Bengal (PLD 1949 Dacca 1) the life of the East Bengal Preventive Detention Ordinance, 1949 (Ordinance VI of 1949) was extended after expiry of four months by the East Bengal Preventive Detention (Continuance) Ordinance, 1949, which was issued on 21-4-1949 although earlier to that i.e. On 11-3-1949 the Provincial Assembly had met, but Ordinance VI of 1949 was not laid before it.
The validity of the Ordinance seeking continuance of Ordinance VI of 1949 was challenged and it was held that the life of the Ordinance could not be extended by another Ordinance. In Ikhlas Ahmad v. Noor Nabi Ahmad Qureshi (PLD 1958 (W.P.) Karachi 283) the repetition of Ordinance which had expired was not permitted as it amounted to extension of life of Ordinance, which was prohibited by Article 69 of the Constitution of 1956. In re Shariah Enforcement Ordinance (Revised)
(NLR 1992 S.D. 491) relying on Maulvi Tamizudin and D.C. Wadwa and others. v. State of Bihar and others (AIR 1987 S.C. 579) re-promulgation of Ordinance was held to be unconstitutional. In Government of Punjab through Secretary Home Department v. Ziaullah Khan (1992 SGMR 602) the life of the Special Courts for Speedy Trials Act, 1987 (Act XV of 1987), which was originally for a period of one year, was extended by Special Courts for Speedy Trials Ordinance, 1988 (Ordinance XIX of 1988) to two years. It was not laid before the Assembly during its session and thus it stood repealed on the expiry of four months. The question arose whether the amendments in the Act XV of 1987 was to continue even after the expiry of amending Ordinance upto a period of two years. My learned brother Amal Mian J., dilating upon the scheme and mechanism of Article 89 held that the amendment could not survive beyond the life of the Ordinance. The opposite view seems to have been expressed in Tirathmal and others. v. The State (PLD 1959 (W.P.) Karachi 594), Kaikous J., distinguished that the extension of life of an Ordinance and its re-enactment were two different situations and under Article 102 of the Constitution of 1956 the former was prohibited, but not the latter. The main reason inter alia being that under Article 102(2) of the Constitution of 1956, there was no prohibition for re-enactment. The same view was expressed by him in Ihsan Ellahi v. The Custodian Evacuee Property (PLD 1959 Lah 924). It was followed in Slate v. Abdul Muhammad (PLD 1960 Kar. 733). Reference can also be made o Rehmat Khan v. Federation of Pakistan through Secretary, Ministry of Law and Justice (PLD 1993 Lah. 70) where it was held that Special Courts for Speedy Trials Ordinance, 1992, which had re-enacted in verbatim earlier Ordinance XXXVIH of 1991 was validly promulgated and such re-enactment was competent. From these authorities it seems there exists difference of opinion in various judgments of the High. Courts. The reasoning of Kaikous J has been adopted and followed which is based on two grounds, viz., (1) Article 102 does not prohibit re-enactment of an Ordinance and (2) if after lapse of sufficient period need arises to promulgate similar Ordinance then the President/Governor will be debarred from re-enacting it.
4. After taking into consideration these authorities on the subject I would not revert to various provisions of the Constitution which provide time limit for performance of duties and obligations.
Article 48(5) provides that when the President dissolves the National Assembly, he shall in his discretion appoint a date not later than 90 days from the date of dissolution for the holding of general elections to the Assembly. Therefore, general elections must be held within 90 days of the dissolution of the Assembly. Article 54 empowers he President to summon either House or both the House or Parliament in joint session. Clause (2) provides that at least three sessions of the National Assembly shall be held every year and not more than 120 days shall intervene between the last sitting of the Assembly in one session and the date appointed for its first sitting in the next session.
A proviso has been added by which the National Assembly shall meet not less than 130 working days in each year. The important aspect is that the National Assembly must hold three sessions every year and during two sessions period of not more than 120 days should elapse. Therefore, each session of the Assembly has to be held within 120 days. Under Article 61 the provision of Article 54 shall apply to the Senate as it applies to the National Assembly except that under proviso to clause (2) of Article 54 the Senate shall meet not less than 90 working days instead of 130 working days in each year. Under Article 85 the National Assembly shall have power to make any grant in advance in respect of estimated expenditure for a part of financial year not exceeding four months pending completion of procedure prescribed in Article 82 for the voting of such grant and the authentication as provided by Article 83 in relation to the expenditure. Article 86 deals with a situation when National Assembly stands dissolved. The Federal Government is authorised to incur expenditure from the Federal Consolidated Fund in respect of the estimated expenditure for a period of not exceeding four months in any financial year pending completion of procedure prescribed in Articles 82 and 83 in relation thereto. It is significant to note that under Articles 85 and 86 when the National Assembly is in session or is dissolved, the Federal Government is authorised to carry out expenditure without applying Articles 82 and 83 for a period not exceeding four months and subject to compliance of these provisions afterwards. Article 89 is the crucial provision which authorises the President to promulgate an Ordinance except when the National Assembly is in session. As discussed above 'the life of the Ordinance is four months unless it is approved by the Assembly. Articles 125, 126 and 127 relate to the Provincial Assemblies and the provinces. Under Article 125 a Provincial Assembly is authorised to make grant in advance in respect of estimated expenditure for a period not exceeding three months pending completion of procedure prescribed in Articles 122 and 123. Likewise under Article 126 when the Provincial Assembly stands dissolved, the Provincial Government is authorised to incur expenditure from the consolidated fund for a period not exceeding four months in any financial year pending completion of formalities. Article 127 applies clauses (2), and (3) of Article 54 to the Provincial Assemblies. Article 128 relates to the promulgation of Ordinance by the Governor in a Province. It is subject to similar limitations as provided in Article 89 except that the life of an Ordinance promulgated by the Governor is three months unless it is approved by the Assembly. Under Article 224 the general election to the National Assembly or a Provincial Assembly shall be held within a period of 60 days immediately preceding the day on which the term of the Assembly is due to expire unless it has been dissolved sooner. However, in case when National Assembly or a Provincial Assembly is dissolved without completing its terms, general election to the Assembly shall be held within a period of 90 days after the dissolution. Clause (3) provides filling of seats in the Senate which fall vacant on expiration of term of a member and shall not be held not earlier than 30 days immediately preceding the day when the vacancies are due to occur. In case except by dissolution of National Assembly or a Provincial Assembly if the seat in any Assembly has become vacant not later than 120 days before the term of that Assembly is due to expire, election to fill such seal shall be held within 60 days from the occurrence of the vacancy. The election to a vacancy in the Senate seat shall be held within 30 days from the occurrence of vacancy. Then come the emergency provisions. Article 232 relates to a grave emergency threatening the security of Pakistan or any part thereof due to war or external aggression or by internal indisturbance beyond the power of a Provincial Government to control. In such a situation proclamation of emergency is issued by the President which gives vast powers to the State as defined in Article 7 to make laws. The President may by the right to enforce fundamental rights and proceedings involving enforcement of such rights. The proclamation of emergency is to be laid before a joint siting summoned by the President within 30 days of the proclamation being issued which shall cease at the expiration of two months unless before the expiration of that period it has been approved by a resolution of the joint sitting. Clause (3) of Article 233 applies clauses (7) & (8) of Article 232 to an Order passed under Article 233. Under clause (8), if the National Assembly stands dissolved at the time when the proclamation of emergency is issued, the proclamation shall continue in force for a period of four months and if a general election to the National Assembly is not held before the expiration of that period, it shall cease to be in force at the expiration of that period unless it has earlier been approved by a resolution of the Senate. Article 234 deals with emergency where a situation has arisen in which Government of the Province cannot be carried on in accordance with the provisions of the Constitution. This proclamation unless laid before the joint sitting of both the Houses and approved by a resolution, shall cease to have effect on expiration of two months. In the same manner extension can be granted to a maximum period of six months but not more than two months at a time. Article 234(4) provides that at a time when the proclamation is issued under this Article if the National Assembly stands dissolved, the proclamation shall continue for a period of three months and if a general election to the Assembly is not held before the expiration of that period it shall cease to be in force at the expiration of that period unless it has earlier been approved by a resolution of the Senate. Article 235 empowers the President to issue a proclamation in case of financial emergency. It reads as follows:- "235. (1) If the President is satisfied that a situation has arisen whereby the economic life, financial stability or credit of Pakistan, or any part thereof, is threatened, he may, after consultation with the Governors of the Provinces or, as the case may be, the Governor of the Province concerned, by Proclamation make a declaration to that effect, and, while such a Proclamation is in force, the executive authority of the Federation shall extend to the giving of directions to any Province to observe such principles of financial propriety as may be specified in the directions, and to the giving of such other directions as the President may deem necessary in the interest of the economic life, financial stability or credit of Pakistan or any part thereof.
(2) Notwithstanding anything in the Constitution, any such directions may indude a provision requiring .a reduction of the salary and allowances of all or any class of persons serving in connection with the affairs of a Province.
(3) While a Proclamation issued under this Article is in force the President may issue directions for the reduction of the salaries and allowances of all or any class of persons serving in connection with the affairs of the Federation.
(4) The provisions of clauses (3) and (4) of Article 234 shall apply to a Proclamation issued under this 'Article as they apply to a Proclamation issued under that Article."
This article deals with financial crisis which threatens the economic life, financial stability or credit of Pakistan or any part thereof and empowers the President, after consulting the Governors of the Provinces or, as the case may be, the Governor of the Province concerned, to issue a proclamation.
On declaration of such proclamation the executive authority of the Federation shall extend even to give direction to the Provinces to observe principles of financial propriety as may be specified in the direction. The President is also empowered to give such other directions as may be necessary in the interest of economic life, financial stability or credit of Pakistan. By clause (4), clauses (3) and
(4) of Article 234 have been applied. Such proclamation has to be laid before a joint sitting and unless before the expiration of two months it is approved, it shall cease to be in force. The power to extend is limited to two months at a time and total life of such proclamation cannot exceed six months. Clause (4) deals with cases when National Assembly stands dissolved at the time when proclamation is issued. In such a situation the proclamation shall continue in force for three months. If during this period elections are not held it will cease to be in force on expiry of three months unless it has earlier been approved by a resolution of the Senate. It clearly signifies that in cases of financial emergency the President has the power to take such steps and issue such directions which in his opinion are necessary to meet the threat to financial credit and economic stability of the country or any Province even at a time when the Assembly is in existence or dissolved. But before taking such steps he has to make a proclamation expressing his satisfaction that a situation has arisen where financial stability and credit of Pakistan is threatened. In all these provisions referred to above the time limit ranges from three months and four months or 90 and 120 days. It may be pointed out that under Article 54 the National Assembly must have three sessions in a year and the intervening period between each session should not exceed 120 days.
Therefore, by providing the life of 120 days for the Ordinance, in the normal course, National Assembly will hold its session before its expiry and it has to be placed before the National Assembly for its approval. This is a restraint placed on the legislative power of the President who can issue Ordinances as competently as the National Assembly can make the laws, but the restrictions imposed particularly the life restriction and seeking approval of the Assembly or both the Houses, restricts the exercise of such power to a limited period. Likewise, if the National Assembly is dissolved d general election to the Assembly shall be held within a period of 90 days after the dissolution leaving a period of 30 days, or one month during which its session shall be held. Article 86 authorises expenditure at a time the National Assembly stands dissolved and the Federal Government is allowed to incur expenditure for a period not exceeding four months in a financial year. This was considered in the President's Reference case, 1988, where it has been held that at least one month's time is contemplated by Article 86 after the re-election of the National Assembly.
During this period of one month the procedure as provided in Articles 82 and 83 has to be completed. Therefore, on each such occasion when the National Assembly is not in session or has been dissolved, the life of the Ordinances promulgated to govern the country has been fixed at 120 days which would expire much after the 90 days' period leaving 30 days or so for completing the formalities for laying before the Assembly. Thus at every step safeguard has been provided to ensure that the President, Governor and the executive do not take any step which may remain unapproved by the National Assembly, Senate or Provincial Assembly. These provisions clearly indicate that life of an Ordinance cannot be extended and for its continuance approval of the Assembly or both he Houses, as the case may be, is necessary. Then, how could re-enactment which is another form of extension of the same Ordinance can be permitted. This amounts to doing indirectly which is not permitted directly. It, therefore, follows that the President under Article 89 and the Governor under Article 128 do not have a power to repeat or promulgate the same Ordinance. If this practice is adopted, then there may be cases and circumstances in which Ordinances may be issued and allowed to expire without being laid before the Assembly and then may be re-issued. In such a way the Assembly will be deprived of the opportunity to consider he Ordinance and all actions and steps taken under such Ordinance will remain valid without any approval or consideration by the Assembly. This will thus perpetuate a rule by Ordinances completely ignoring and by-passing the Assemblies which have the power to legislate. One may say that it is a hypothetical proposition, but this has happened and possibility of its happening again and again cannot be ruled out. The typical case in this subcontinent is D.C. Wadhwa and others. v. State of Bihar and others (AIR 1987 S.C. 579). In this case in the presence of the Assembly the Governor of the State of Bihar issued Ordinances repeating the same without placing them before the Provincial Assembly and thus the life of the Ordinances was extended from one year to fourteen years. 256 Ordinances were promulgated during this period and significantly majority of the Ordinances had a life of one to eight years. The life of 27 Ordinances ranged between eight and fourteen years. This may be termed as a peculiar case, exceptional case or a rare case, but the fact remains that the Governor ruled through Ordinances bypassing the Assembly although the provision relating to the promulgation of Ordinance had fixed its life and for continuance required it to be laid before the Assembly. This shows that power to re-promulgate Ordinances can be misused raising possibility of making mala fide and arbitrary legislations which will set at naught the democratic institutions established by the Constitution. In Wadhwa's case Bhagwati C.J. Held that Ordinance is issued in emergency while the Assembly is not in session. It has been given a limited life under the scheme of the Constitution which requires the Assembly to meet after fixed intervals making it possible to place he Ordinance before the Assembly for approval before its expiry. It was further observed as follows: - "The only question is whether the Governor has power to repromulgate the same Ordinance successively without bringing it before the Legislature. That clearly the Governor cannot do. He cannot assume legislative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurping a function which does not belong to him. It is significant o note that so far as the President of India is concerned, though he has the same power of issuing an Ordinance under Article 123 as the Governor has under Article 213, there is not a single instance in which the President has, since 1950 till today, re-promulgated any Ordinance after its expiry. The startling facts which we have narrated above clearly show that the Executive in Bihar has almost taken over the role of the Legislature in making laws, not for a limited period, but for years together in disregard of the Constitutional limitations. This is clearly contrary to the Constitutional scheme and it must be held to be improper and invalid."
5. Now question arises whether there can be a situation where such a power can be exercised by the President and the Governor. It is quite simple. Either the President and the Governor have no power to repeat and promulgate the same Ordinance or they have power to do the same. There cannot be any via media in interpreting Articles 89 and 128 of the Constitution. The language of both the provisions is clear and when read with the related provisions of the Constitution discussed above, no exception seems to have been provided nor any principle of interpretation permits to make out exceptions for exercising power in respect of matters which have not been permitted in clear terms. It is noteworthy that Article 89(2)(a) (i) & (ii) provides that the Ordinance shall be laid before the National Assembly or before both the Houses and shall stand repealed at the expiration of four months from its promulgation unless disapproved or withdrawn earlier. The word shall has significantly been used making it mandatory to lay the Ordinance before the Assembly or both he Houses and further that it shall stand repealed on expiry of four months. The word 'shall' is mandatory and imperative fixing a time limit and procedure for its approval and continuance. In Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 S.C. 473) Shafiur Rahman J observed as follows:- "The general rule has been laid down that if directions are given respecting the time and mode of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it to be exercised in that time and mode only. And Constitutional provisions imposing duties upon the Governor and the legislature have been held mandatory.
A specific Constitutional provisions that its provisions are mandatory and prohibitory unless by express words declared to be otherwise will, of course, be given effect. Such a declaration applies to all sections of the Constitution a like, and is binding on every department of the State Government, whether legislative, executive or judicial. And, as a result of the adoption of such a provision, a Court is not at liberty to say that any Constitutional pre-requisite to the validity of a law is of no practical effect, Or to consider the policy of a provision whose language seems plain and positive. Although it has been stated that even in the absence of a declaration that its provisions are mandatory and prohibitory, the Courts would not treat the provisions of a Constitution as merely directory or unessential, it has also been suggested that the reason for the insertion of a specific statement on the matter in the Constitution of one State was that certain decisions had previously held that the provisions of the State's earlier Constitution regarding the titles of legislative acts were directory and not mandatory."
The principle of interpretation of the Constitution is that it should be liberally interpreted. It should not be pedantic. It should be with an eye on the future and it has to be moulded according to the circumstances and happenings taking into consideration the overall provisions of the Constitution which have to be harmoniously read and construed. The mandatory directions should be complied.
6. In this situation can it be contended that Ordinance XXII of 1988 was promulgated due to State necessity. There exist several judgments of our superior Courts elucidating and explaining the doctrine of State necessity and its effect on the existing legal order. By this doctrine any action which is otherwise unlawful is declared lawful/valid. It was first applied after the dissolution of Constituent Assembly and the judgment in Federation of Pakistan v. Moulvi Tamizuddin Khan (PLD 1955 F.C. 240). In the Reference to the Federal Court by H.E. The Governor General (PLD 1955 F.C.
435) actions though unconstitutional were recognized on the basis of doctrine of necessity as enshrined in the principle salus populi suprema tax. Thereafter in 1958 when the Constitution was abrogated and Martial Law was imposed, State v. Dosso (PLD 1958 S.C. (Pak) 533) recognised the change as legal holding that as the revolution has succeeded, the illegality stands legalised. When after a decade the extra-consitutional intervention of 1969 came up for consideration in Asma Jilani v. Government of Punjab (PLD 1972 S.C. 139), rejecting the view expressed in Dosso, it was held that the abrogation of 1962 Constitution and imposition of Martial Law by Gen. Muhammad Yahya Khan was invalid and void in toto. Again when Martial Law was imposed by the Proclamation of 5th July, 1977, it was declared that the Constitution is kept in abeyance and not abrogated. In Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 S.C. 657) distinguishing from the Martial Laws of 1958 and 1969 it was held valid as the legal order was not replaced by a new legal order and Martial Law was imposed in view of the break down of Constitutional machinery and in order to "provide a bridge to enable the country to return to the path of Constitutional rule". Although the Supreme Court does not seem to accept the legal necessity for an Army intervention, yet recognised that a situation had arisen for which the Constitution did not provide any solution and therefore in the political situation the necessity dictated intervention of Army for instantaneous relief. In all these cases where imposition of Martial Law has been held illegal and void, such day to day transactions necessary for normal course of life and society were validated. From a review of the aforestated judgments two glaring situations emerge;
(1) where the extra-constitutional intervention or revolution has changed the Constitutional order and replaced it by a new legal order, and
(2) where the extra-constitutional intervention was taken to save, defend and ultimately restore the Constitution.
7. The object of this analysis is to show that in all cases where doctrine of State necessity has been applied the Constitutional regime and existing legal order has suffered by extra-constitutional intervention either by abrogating and replacing it by a new legal order or in the garb of defending and restoring the Constitution. It is therefore difficult to plead doctrine of State necessity in absence of any extra-Constitutional intervention or in a situation for which Constitution provides a solution. In Begum Nusrat Bhutto our learned brother Nasim Hasan Shah J (as he then was) after exhaustive review of judgments of our Courts and foreign jurisdictions on the doctrine of State necessity referred to the following pre-requisites to be satisfied before this doctrine could be made applicable as laid down by Josephides J in The Attorney General of the Republic v. Mustapha Ebrahim and others (1964) 3 Cyprus (1).R 195:- "(a) an imperative and inevitable necessity or exceptional circumstances,
(b) no other remedy to apply,
(c) the measure taken must be proportionate to the necessity, and
(d) if must be of a temporary character limited to the duration of the exceptional circumstance."
It would be pertinent to refer to the observations of Hamoodur Rahman, C.J. In Asma Jilani v.
Government of the Punjab (PLD 1972 S.C. 139), which read as follows:- "I too am of the opinion that recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but I respectfully beg to disagree with the view that this is a doctrine for validating the illegal acts of usurpers. In my humble opinion, this doctrine can be invoked in aid only after the Court has come to the conclusion that the acts of the usurpers were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise, should be condoned Or maintained, notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization."
In Begum Nusrat Bhutto imposition of Martial Law was, however, held valid as it was found to be dictated by considerations of State necessity and public welfare. The Chief Martial Law Administrator was accordingly held entitled to perform all such acts and promulgate legislative measures which fell within the scope of law of necessity including the power to amend the Constitution. Therefore, the necessity which requires to be justified must save a situation which has been illegal and illegitimate and because of welfare of the State and the general public such actions are legalised/accepted by condoning the illegality. There is no such situation in the present case. The National Assembly had been dissolved by the President of Pakistan under the provisions of the Constitution. Although such action within the provisions of the Constitution was held to be illegal, for various reasons, this Court did not restore the National Assembly and allowed the elections to be held. The dissolution of the National Assembly though illegal was not extra- constitutional act or any act which was not contemplated by the constitution. It was declared void only because of non-compliance of the Constitutional provisions and conditions necessary for dissolution of the Assembly. Such dissolution is completely on different footing from the dissolution made by any extra-constitutional intervention by suspending or abrogating the Constitution, in any event the President and Governors were acting under the Constitution and elections were to be held as provided by the Constitution. There existed a legal and Constitutional machinery to govern and administer the country. In these circumstances, it will be difficult to invoke doctrine of State necessity for justifying re-promulgation of the same Ordinance, which otherwise is not permissible under the provisions of the Constitution.
8. In the emergent situation as alleged, which was caused due to delayed elections to the National Assembly which itself was not illegal or extra- constitutional deviation, could such situation be saved only by repeating the same Ordinance, it is a fundamental principle of interpretation of Constitution that if any situation arises for which a solution has been provided by the provisions of the Constitution itself, then one has to first revert to those provisions and seek answer from them.
An emergent situation, if it arises, does not call for any deviation or for creating an exception which is not otherwise provided by the provisions of the Constitution. Under Part X of the Constitution emergency provisions have been made. If other provisions of the Constitution do not cater for such an emergent situation, then one has to go to Part X consisting of Articles 232 to 235 to find out whether any remedy is provided therein. The only plea for repeating the Ordinance is that there was a financial emergency. Taking such contention on its lace value, in my humble view Article 235 is a complete answer to deal with such emergency. At the moment I would refrain from dealing with provisions of Articles 232, 233 and 234 because Article 232 deals with proclamation of emergency on account of war, external aggression or by internal disturbance beyond the power of the Provincial Government to control. A proclamation of emergency under Article 232 gives wide powers to the President/Federation even to the extent of making laws in derogation to the specified fundamental rights and suspend the powers vested in the High Court for enforcement of such rights. Article 234 provides for proclamation of emergency in case of failure of Constitutional machinery in a Province, but in such a situation the President is not authorised to assume to himself or direct the Governor of the Province to assume on his behalf any of the powers vested in or exercisable by a High Court or to suspend either wholly or in part the operation of any provision of the Constitution relating to the High Court. The mechanism for considering the proclamation by both the Houses and its duration has been discussed above.
9. A proclamation of emergency under Article 235 can be made if the President, it satisfied that a situation has arisen whereby the economic life, financial stability or credit of Pakistan or any part thereof is threatened. In such a situation the President in consultation with the Governors of the Provinces or as the case may be, the Governor of the Province concerned, may make a declaration of emergency and may issue a proclamation to that effect. During the currency of this proclamation , the President is empowered to give such directions as he may deem necessary in the interest of economic life, financial stability or credit of Pakistan or any part thereof. The provisions of clauses (3) and (4) of Article 234 have been made applicable to a proclamation of emergency under Article 235 as discussed above. On promulgation of a proclamation under Article 235 the Constitution does not permit the suspension of fundamental rights or any provision relation to the High Court for enforcement of such rights. The much expressed fear that in all cases of Proclamation of Emergency under Chapter X provisions of the Constitution relating to High Court for enforcement of fundamental rights can be suspended and laws in disregard of specified fundamental rights can be made is not correct. There are several types of proclamations of emergency according to needs and situations arising in the country. Such drastic measures can be taken in cases where Proclamation of Emergency is made under Article 232 and not under Article 235. The situation arising in this case could have been taken care of under Article 235 instead of issuing and repeating an Ordinance. The same effect could have been achieved by the President by issuing a proclamation and directions as may be deemed necessary in the interest of economic life. As Ordinance XXII of 1988 was issued to save economic life and to maintain financial stability and credit of Pakistan, then in view of the fact that the National Assembly had been dissolved, the elections were to be held, Assembly was to be convened on a date after the repeal of Ordinance II of 1988 and as the same Ordinance could not be repeated, a Proclamation to the same effect could have been issued under Article 235. In issuing the Proclamation consultation with the Governor is mandatory. Therefore, as the Constitution has provided a remedy for a situation, it would have been proper to follow it rather than to issue an Ordinance which otherwise could not have been issued even by invoking the doctrine of necessity.
10. In the Reference by the President of Pakistan in the year 1988 where the Federal Government had sought opinion in respect of incurring expenses from the--consolidated fund, while dealing with Article 86 the question arose whether an Ordinance could have been issued for that purpose. This contention was repelled and the following observation was made:- "The submission of the learned Attorney General that within the framework of the Constitution it is possible for the President and the Governors to authorize the expenditure after 31-10-1988 by promulgating appropriate Ordinances is untenable. The Constitution expressly provides for a situation where National or Provincial Assembly stands dissolved, namely Articles 86 and 126.
According to these provisions the Federal and the Provincial Governments are authorized to incur expenditure from the Consolidated Funds for a period not exceeding four months in a financial year. Therefore, in view of the aforesaid express prohibition neither the Federal nor the Provincial Legislature can achieve through the Ordinance what is otherwise prohibited by the express! Terms of the Constitution. It is well-established that where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performances are necessarily forbidden. This principle would apply with greater force when a Constitutional provision has provided for a method of performance and prescribed a limitation of time for the doing of a thing. This would imply that any contrivance which would amount to circumventing the Constitutional provision is necessarily prohibited.
Even otherwise in a democracy, whether the form of Government is Parliamentary or Presidential, the control over the State Exchequer is always with the representatives of the people. The financial provisions of the Constitution are based on this principle. Thus, after providing in Article 78(1) that all revenues and loans received or raised by the Federal Government shall form part of the Federal Consolidated Fund, it makes elaborate provisions in Articles 79, 80, 81, 82, 83, 84, 85 and 86 with regard to the manner in which moneys can be withdrawn therefrom. When the National Assembly which is directly elected by the people is in existence, no expenditure out of the consolidated fund can be made unless it has been discussed and voted upon by the National Assembly. Even when the National Assembly is not in existence the Federal Government has been given a limited power to undertake expenditure out of the consolidated fund but then again in conformity with the principle stated above, the expenditure so incurred has to be accounted for and subjected to the approval of the National Assembly when it is reconstituted. If the power to authorise expenditure through an Ordinance is conceded to the President it will be defeating the very provisions which the Constitution has set out in meticulous details in preserving the right of the tax-payers to control the exchequer. It is to be noticed that an Ordinance can be issued by the President even when the National Assembly is in existence; the only rider on the power of the President in this regard is that the National Assembly should not be in session. It may also be mentioned that even though every Ordinance is to be placed before both Houses of the Parliament but it is optional with the Federal Government whether or not it should be subjected ter the approval of the Parliament. In the event that the Assembly does not approve the Ordinance or it is withdrawn by the President or stands repealed on the expiry of four months, yet even though it ceases to have effect the legality of the expenditure already incurred in pursuance thereof remains outside the scrutiny of the National Assembly. Hence the issuance of an Ordinance to authorise expenditure by the President would be violative of the Scheme so carefully prescribed by the Constitution under Articles 78 to 86. This is also true of Ordinances promulgated by a Provincial Governor in the light of the corresponding provisions of the Constitution relating to financial procedure in the Provinces."
From the above observations it is clear that as a particular solution to deal with financial emergency has been provided and re-enactment of an Ordinance is prohibited, I will not be proper to resort to an action not permissible under the Constitution. The provisions of the Constitution particularly Article 89 provide method for issuing and promulgating the Ordinance. It has to be done in the manner as provided by the Constitution and not beyond it. If an Ordinance has been promulgated in view of a particular situation, then on its repeal by efflux of time even if the same situation continues, the same Ordinance cannot be repeated. It should be laid before the Assembly or both the Houses, as the case may be, for approval.
11. Before concluding it may be pointed out that Article 89 has fixed the maximum life of an Ordinance as four months without any provision for its extension and that it should be placed before the Assembly or both the Houses which would decide whether in the situation and circumstances it should be continued and made into an Act. The power to promulgate an Ordinance is for a transitory period not exceeding four months (and three months in the case of a Governor under Article 128). If it is not laid before the Assembly or not approved and the circumstances which had existed at the time of promulgation of the Ordinance continue, then even if the Assembly is not in session, the same Ordinance cannot be re-promulgated. The will of the Legislature is supreme. If it was not laid before the Assembly, executive is to be blamed as it avoided to have the approval of the Assembly. But if the Assembly disapproves it, the matter ends.
It is only on existence of fresh circumstances as distinguished from the continued circumstances for which Ordinance had been issued that an Ordinance can be promulgated.
12. For he above reasons, in my humble view, Article 89 does not permit re-enactment of the same Ordinance promulgated earlier and therefore Ordinance XXII of 1988 is void and of no legal effect.
Consequently, the appeal fails and is dismissed with no order as to costs.