' SH. IJAZ NISAR, C.J.---This judgment shall dispose of Writ Petitions Nos.677/97, 1036/97, 112/97 1479/97 and 1480/97 involving somewhat similar controversy.
2. The circumstances leading to the filing of these petitions are that on 6-1-1997 the President of Pakistan issued a notification purporting to amend the Rules of Business, 1973 so as to provide for establishment and constitution of a Council for national defence and security to aid and advise the Federal Government in the matters mentioned in the said notification. The notification reads as under:--- "In exercise of the powers conferred by Articles 90 and 91 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to direct that the following further amendments shall be made in the Rules of Business, 1973, namely:--- "In the aforesaid Rules:
(A) Rule 20-A shall be replaced to the following:--- 20-A. Council for Defence and National Security.--(1) There shall be a Council for Defence and National Security to aid and advise the Government in:
(a) Determination of national strategy and fixation of priorities in terms of overall national security.
(b) Formulation of defence policy in accordance with national strategic objectives and securing of assessm ent and plans for the fulfillment of the defence policy.
(c) Coordination of defence policy with external and domestic policies.
(d) Definition of the task of the Armed Forces of Pakistan in accordance with the national strategy.
(e) Economic and financial policies affecting defence and national security.
(f) Recommendations relating to internal security proclamations of emergency and any other matter of national importance referred to the Council for Defence and National Security by the President or the Prime Minister.
(2) The Council for Defence and National Security shall comprise:
(i) The President of Pakistan and Supreme Commander of the Armed Forces.
(ii) The Prime Minister of Pakistan.
(iii)The Minister for Defence.
(iv)The Minister for Foreign Affairs.
(v)The Minister for Interior.
(vi)The Minister/Adviser to the Prime Minister for Finance.
(vii)Chairman, Joint Chiefs of Staff Committee.
(viii) Chief of the Army Staff.
(ix) Chief of the Naval Staff.
(x) Chief of the Air Staff.
(3) The President shall chair the meetings of the Council for Defence and National Security.
(4) The Council for Defence and National Security shall meet as and when required.
(5) The Principal Secretary to the President shall be the Secretary of the Council for Defence and National Security. The Cabinet Secretary, Secretary, Defence Division and Director-General Inter Services Intelligence will be regularly in attendance.
(B) In Schedule II, in Serial No,5, after Entry 28, the following new entry shall be added, namely: "29. Council for Defence and National Security and matters relating thereto."
(C) In Schedule V-B, Serial No,11 and the entries relating thereto in the second and third columns shall be omitted."
3. Mr. Tanvir Ahmed Qureshi, petitioner in W.P. No,677/97, who is 'an Advocate of this Court, has called in question the validity of the said notification on various grounds which have been elaborated by Mr. Talib H. Rizvi, Advocate. He submitted that after exercising the power under Article 58(2)(B) of the Constitution, the President is empowered to dissolve the National Assembly and appoint a Caretaker Cabinet to hold fresh elections in the country but he has no authority under the law to legislate or pass any order which is beyond the scope of holding the elections.
According to him, amendment made by the President in the Rules of Business and creating Council for Defence and National Security (hereinafter referred to as C.D.N.S.) amounts to legislation and amendment of the Constitution. He added that the provision about forming C.D.N.S., was first introduced by late Gen. Muhammad Ziaul Haq as Chief Martial Law Administrator through Article 152-A of the Constitution, which was later omitted by 8th Amendment. According to him, formation of C.D.N.S., through an amendment in the Rules of Business amounts to bring back and reviving the provisions earlier omitted in the Constitution. Neither the Caretaker Prime Minister nor the Cabinet had power to give approval to the said provision. Similarly, the President had no power to amend the Rules of Business so as to revive the provision which was earlier omitted under a Constitutional amendment. By creating the C.D.N.S., the President destroyed the basic structure of the Constitution which envisaged a parliamentary system of Government. He maintained that C.D.N.S., could not be formed on the advice of Caretaker Prime Minister and his Cabinet which was to take care for a limited period of day-to-day routine business. He went on to say that it was the function of a properly elected Legislature and not of the Caretaker Cabinet. It was not lawfully done since the idea had flowed from the President and he sent the matter to the caretaker Cabinet for approval. As per Constitution, the advice must have been made by the Prime Minister to the President, but it was the other way round in this case.
4. Learned counsel contended that the impugned amendment was ultra vires of the Constitution inasmuch as it, hits at its basic structure. He said that the amendment had, in fact, given birth to a new law through an illegal and improper mode. According to him, Articles 90 and 99 of the Constitution, on the support of which the President had made the amendment in question which also spells out the power of the President and the Federal Government, do not allow a Caretaker Prime Minister to be a consultee in this regard, hence the amendment in question had transgressed the Constitution. Lastly, he contended that the law of permanent nature could not be made on the advice of a caretaker Cabinet, which in the interim period, had the sole business of conducting the elections.
5. Mr. Shahzad Jehangir, learned Attorney-General argued that the existing system of the Government was not purely Parliamentary but Presidential and the President had been left with a large number of functions to perform on his own and he is not merely a titular head of the State. As the Supreme Commander of the Armed Forces, the President is concerned with all matters of security, he in his discretion appoints the three services Chiefs, besides the Chairman of the Joint of the Chief Staff Committee. He maintained that the President had formed the C.D.N.S., in exercise of his executive powers to formulise the process of seeking expert advice in a comprehensive manner on security matters. No Constitution violation was involved in its formation, as there was nothing in any law to bar the President from seeking advice from whomsoever, he wanted. Mr. Shahzad Jahangir stated that the Council was set up on the advice of the Caretaker Federal Government, which was binding on the President. He maintained that security of the country was related not only to its frontier but also to its internal conditions. There was no bar on the President in having advice from any of the State Organs. Being Supreme Commander of the Armed Forces, the President was within his jurisdiction to consult the four Chiefs on matters relating to defence and security of the country. What he did in this case was to formulise the consulted process having all the four Chiefs as Members of the said Council. According to him, the action regarding the formation of C.D.N.S., was of an executive nature and was in no way in conflict with the Constitution.
Amending the Rules' of Business could not be termed as amending the Constitution, he maintained. Highlighting the need to set-up the C.D.N.S., he maintained that it was to avoid the political crises in the country. The Council was an advisory body whose recommendations were not binding on the Federal Government.
6. Mr.M.D. Tahir, Advocate supported the creation of C.D.N.S., on the ground that it would provide a check on the Legislature, which had little interest in the welfare of the people. He also sought expansion of C.D.N.S., by inducting all the Chief Justices.
7. After. Hearing the petitioners' learned counsel as also Mr. Shahzad Jehangir, learned Attorney- General for Pakistan, we keeping in view the importance of the controversy asked Mr. Sharif-ud-Din Pirzada, Senior Counsel Supreme Court of Pakistan to assist us "amicus cariae". We are grateful for the valuable assistance rendered by him.
8. Mr.Sharif-ud-Din Pirzada urged that the Eighth Amendment had made no substantial change in the system of Government, which remained parliamentary in nature. Mr. Pirzada said that C.D.N.S. Was nothing more than an administrative "amicus". The concept had been borrowed from the United States which enacted a National Security Council Act in 1947. The Turkey followed the same in 1962 by an amendment in its Constitution and there had been no military takeover since then in that country. Late Gen. Muhammad Zia-ul-Haq had introduced it through the Revival of Constitution Order, 1985 but it was dropped under pressure from an apprehensive Martial Law Weary Parliament. Mr. Pirzada said that there was nothing in the Constitution or law that would bar the formation of the C.D.N.S., and that a solitary measure could not become illegal only because it had been taken under a wrong provision. He said that the new elected Government would have the power to undo it or change its composition. Mr. Pirzada quoted B.S. Giving warning that:- "No legal rule can guarantee the preservation of Parliamentary system in the absence of political ethics and maturity of a very high standard."
' He also quoted a warning by the Quaid-a-Azam in his speech at the Quetta Staff College that:--- "Representative Governments and the Parliamentary practices are, no doubt, good and desirable, but when people want to reduce them merely to channels of personal aggrandizement, they do not only lose their value but also earn a bad name."
9. Mr. Sharif-ud-Din Pirzada contended that the constitution of C.D.N.S., does not alter the Parliamentary character of the system as it was just an advisory body at the executive level, its recommendations were also not binding on the Federal Government and such bodies also exist in U.S.A. Turkey and other countries to strengthen the defence and national security system with mutual consultation. He expressed the view that the parliamentary system did not exist anywhere in the world except in Britain where it is sustained .By conventions which is not possible to be emulated by any other State. He said that some other States, like India, Australia, Canada and Italy had parallel Presidential powers like us where the character of their system was essentially parliamentary. According to him the 8th Amendment in fact had created a balance in favour of parliamentary system because Mr. Z.A. Bhutto initially converted the Presidential system into Parliamentary one, concentrating powers in the office of Prime Minister. According to him, Constitution of Islamic Republic of Pakistan, 1973, nowhere distinguishes the powers of a caretaker Government from those of the elected one except the tenure, as such, the same type of the Caretaker with similar powers as enjoyed by the elected Government had also been recently inserted in the Bangladesh Constitution.
10. In the other Constitutional petition on the same subject (W.P. No,1036/97) filed by Mr. Abdul Rehman Cheema, again an Advocate of this Court, he too has objected to the formation of the Council for National Defence and Security. The objections raised by the learned counsel were almost similar to those of Mr. Talib H. Rizvi, Advocate. Additionally, it was argued by Mr. Cheema that the President could not have appointed either a Caretaker Prime Minister or a Caretaker Cabinet after dissolving the National Assembly as the Constitution envisages an elected Prime Minister, who is responsible to the Parliament.
II. The formation of the C.D.N.S. Has also been challenged in the two other petitions namely W.P.
No,1479 of 1997 and W.P. No,112 of 1997 on almost similar grounds. We have heard the petitioner in W.P. No,1479/97 in person and the learned counsel for the petitioner in W.P. No,112 of 1997. The contentions raised by them are almost same as were advanced by Mr. Talib H. Rizvi and Mr. Abdul Rehman Cheema, Advocates.
12. The first objection raised by the learned counsel for the petitioner on the validity of the notification was in respect of the powers of the President to issue such a notification. Relying upon the judgment of the Supreme Court in the case of Mian Muhammad Nawaz Sharif v. Federation of Pakistan etc. PLD 1993 SC 473, it was urged that the system of the Government being parliamentary in nature the President does not enjoy any inherent or residual power but can only exercise those powers which are specifically spelt out in the Constitution which does not envisage setting up of such a body like C.D.N.S., and as such the notification is ultra vires the Constitution.
13. The learned Attorney-General for Pakistan, on the other hand, has urged with vehemence that after the promulgation of the Constitution (Eighth Amendment) Act, 1985, the President has become repository of the executive authority of the Federation and is its Chief Executive. In his submission, as a consequence of the said amendment, the form of Government has become more Presidential than Parliamentary in nature.
14. Mr. Sharif-ud-Din Pirzada, the learned amicus curiae, however, did not agree with the submission made by the learned Attorney-General and categorically stated that notwithstanding the changes brought about by the Constitution (Eighth Amendment) Act, 1985, the form of Government remains to, be parliamentary though certain powers have been given to the President enabling him to act in his discretion in the matters specified in the Constitution.
15. There is no dispute that the Constitution of Islamic Republic of Pakistan, 1973, as originally enacted envisaged setting up of Parliamentary form of Government in which. The Prime Minister was the Chief Executive and Head of the Cabinet which in turn was responsible to the Parliament. It has been pointed out with his usual skill by Mr. Sharif-ud-Din Pirzada that the system. Of Government under the original Constitution could more appropriately be called "Prime Ministerial" rather than parliamentary as it had a definite tilt in favour of the Prime Minister, not found in any other country where parliamentary form of Government is in vogue.
16. Before proceeding any further, we may dispel the prevalent misconception that only that system of Government can be said to be Parliamentary in nature if it conforms in all material respect to the system prevailing in United Kingdom. There is no warrant for such an assumption. In fact the British Parliamentary system is unique inasmuch as the country is being run on the basis of conventions which had developed over the years without there being a written Constitution. There are other Parliamentary democracies in the world like India, Australia, Canada which differ in many respects from The British system but it has never been doubted that the form of Government in those countries is Parliamentary in nature. To us it is clear that a Constitutional set-up which provides for the supremacy of the Parliament and Governance of the country by a Cabinet comprising of elected representatives of people which is responsible to the Parliament, is Parliamentary in nature. The division of powers between the Head of the State, Chief Executive and other Constitutional functionaries is not of much importance. In the recent case of Al-Jehad Trust through Raeesul Mahajideen Habib-ul-Wahab-ul-Khairi v. Federation of Pakistan and others commonly known as second Judges case, Constitutional Petition No,23 of 1996 (PLD 1997 SC 84), Saiduzzaman Siddiqui, J. Observed that:--- "The nature of the Constitution, whether it is Parliamentary or Presidential in character is determined by the scheme of a Constitution. In a Constitution which envisages a Parliamentary system of Government, the Parliament is considered supreme to all other organs of the State and the Cabinet consisting of Ministers and Prime Minister is responsible for running and managing the affairs of the Government. The concept of responsible Government of collective responsibility of Cabinet to the Parliament is inherent in this system. So long these features are present in the Constitutional scheme, the system retains the characteristics of a Parliamentary form, irrespective of the fact that some other powers under the Constitution are exercised by the Prime Minister. Mr. S. Sharifuddin Pirzada, the learned amicus drew our attention to various Constitutions enforced in the countries of the world, which though envisaged Parliamentary system of Government but the distribution of powers between the Prime Minister as the Chief Executive and the President as head of the State are arranged in these Constitutions differently."
17. In support of his contention that as a result of the 8th Amendment the form of Government stands transformed into presidential system, the learned Attorney-General has in particular referred to Article 90 of the Constitution. He emphasised that while earlier the executive authority of the Federation was to be exercised in the name of the President by the Federal Government consisting of the Prime Minister and the Federal Ministers acting through the Prime Minister as the Chief Executive of the Federation, after the amendment the executive authority stands specifically vested in the President and has to be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. According to the learned Attorney-General this marked difference in the language clearly shows that the President is no longer a titular head but is the Chief Executive of the Government. He relied upon the observations of Rustam S Sidhwa, J., in the case of Kh. Ahmad Tariq Rahim v. Federation of Pakistan PLD 1992 SC 646 which appear at page 684 of the report are to the effect that the basic character of the Constitution was now amix; it is not presidential; it was never meant to be. It is not totally Parliamentary as it was intended.
18. We are not impressed with this contention. Although as pointed out by the learned Attorney- General the language used in Article 90 had undergone a drastic change but in our view the change in language is not of much importance or conclusive in determining the nature of Government envisaged by the Constitution even after the 8th Amendment. True enough that in Article 90, as amended, it is stated that the executive authority vests in the President and is to be exercised by him directly or through his subordinates but it is also provided that the powers shall be exercised in accordance with the Constitution which includes Article 48(1) which obliges the President to act on the advice of the Prime Minister or the Cabinet except in certain cases. Much emphases were laid on the fact that the power to dissolve the National Assembly vests in the President in view of Article 58(2)(b) of the Constitution and also that the President has the power to appoint certain high-State functionaries independent of the advice of the Prime Minister. As already observed by us, the form' of Government does not depend upon the division of power between the functionaries under the Constitution. On the other hand, what is to be seen is that where the Parliament remains to be supreme and the country is to be governed by the Cabinet comprising of the Prime Minister and the Ministers responsible to the Parliament, the system would remain to be Parliamentary in character. We may also state that the language of Article 90 of the Constitution after its 8th Amendment is the same which is used in Article 53 of the Constitution where it has never been doubted that the system of governance was Parliamentary in nature. It has been pointed out by Mr. Sharif-ud-Din Pirzada that similar language was used in the Government of India Act, 1935 as also in certain other Constitutions like those of Australia, Canada and Ireland.
19. It is unnecessary to dilate upon any further in the matter as the Supreme Court of Pakistan has consistently held that the system prevailing in Pakistan continues to be Parliamentary in nature. It was so held in the cases of Federation of Pakistan v. Haji Saif Ullah Khan PLD 1989 SC 166, Mian Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 738 and recently in the second Judges case, Al-Jehad Trust through Raees ul Majahideen Habib AlWahabul Khairi v. Federation of Pakistan supra. In the said case, Syed Sajjad Ali Shah, Honourable Chief Justice of Pakistan took notice of similar argument raised before the Supreme Court and the difference brought about by the 8th Amendment in Articles, 48, 51, 56, 58, 59, 60, 75, 90, 91 101, 105, 106, 112, 116, 130, 144 and 152 of the Constitution. In para. 64 of his judgment, learned Chief Justice speaking for the Court observed that it would appear that by virtue of 8th Amendment more powers have been given to the President to provide him the effective role but the Parliamentary form of Government has been retained. It was specifically observed that the Amendments inserted by Constitution (Eighth Amendment) Act, 1985 did not show that the form of Government in the Constitution of Islamic Republic of Pakistan, 1973 has been changed from Parliamentary to Presidential. In the same case Saeedudzaman Siddiqui, J., in para. 21 of the judgment examined the changes brought about by 8th Amendment in Article 90 in detail. The following observations appearing in para. 25 of the judgment are as under:- "From the above discussion, it is quite clear that the changes brought about in Article 48(1) and (2) and Article 90 of the Constitution through the 8th Amendment were neither unique nor extraordinary in character nor they were unknown in the Constitutional field. The makers of the Constitution, therefore, were deemed to be aware of the scope of these amendments and the manner in which these amendments were interpreted. In my view, therefore, the powers of President under the Constitution remained confined only to the extent they were conferred on him specifically under the Constitution "
' In view of this latest judgment of the Supreme Court, we have no hesitation in repelling the contention of the learned Attorney-General.
20. This conclusion, however, does not in any manner advance the petitioner's case, for, it has been stated before us by the learned Attorney-General and we have no reason to doubt his statement that the decision to establish C.D.N.S. Was taken and the notification in question was issued in this behalf by the President not in his own discretion but on the advice of the Cabinet.
21. Mr. Abdul Rehman Cheema, Advocate-petitioner in the connected petition has contended before us that the appointment of Caretaker Cabinet by the President after dissolution of the National Assembly was unconstitutional as only a person who is elected Member of the National Assembly and not a stranger can be appointed as Prime Minister even during the interregnum. The learned counsel emphasised that in a Parliamentary system the Government can only be run by the elected representatives of the people who are responsible for their actions to the Parliament.
22. This contention of the learned counsel is wholly without force. The two aspects which have been highlighted by the learned counsel undoubtedly are attributes of a Parliamentary form of Government but cannot be made basis for denying the power to the President to appoint a Caretaker Government headed by a Prime Minister in view of the clear language of Article 48(5) of the Constitution. The general rule that Prime Minister must be a member of the National Assembly and the Government must be answerable to the Parliament must yield to the exception created by Article .48(5) where on account of dissolution of National Assembly it is impossible to appoint one of its members as Prime Minister.
23. The Constitutional position appears to be totally different from what has been urged by the petitioner's learned counsel. Even at the time when the National Assembly stands dissolved, the governance of the country must be on the aid and advice of a Cabinet which has to be headed by a Prime Minister. In the case of Federation of Pakistan and others v. Haji Muhammad Saif Ullah Khan and others PLD 1989 SC 166, the Supreme Court of Pakistan took notice of the failure of the then President to appoint a Prime Minister to head the Caretaker Cabinet and observed that even during the interregnum the set-up has to remain Parliamentary in nature which requires the appointment of a Caretaker Cabinet immediately upon the dissolution. Shafi-ur-Rehman, J., as his Lordship then was at page 215 of the report observed that failure to appoint a Caretaker Cabinet immediately on dissolution of the National Assembly would be a breach of the Constitution. It was further observed that:--- "In this background the Constitution does not visualize a Caretaker Cabinet without a Prime Minister. The absence of Prime Minister from a Caretaker Cabinet alters for the period under discussion the very character of the Constitution from a Parliamentary democracy to a Presidential system of Government. The Courts can neither countenance nor condone all this at this stage and in these proceedings. Such violations and breaches concern the very essential features of the Constitution...."
24. It was argued by Mr. Talib H. Rizvi, Advocate that setting up of a C.D.N.S. Amounts to amending the Constitution. It was explained by him that earlier when such a Council was proposed to be set up the Constellation was amended by the Presidential Order 14 of 1985 and Article 152-A was introduced therein which was, however, subsequently repelled by the Parliament by the Constitution (Eighth Amendment) Act, 1985. According to the learned counsel, the notification in question which seems to bring about the same result which had been expressly disapproved by the Parliament by repealing Article 152-A was unconstitutional.
25. We are unable to accept this contention. If the creation of a Constitutional Body or Organisation is relatable to the provision in the Constitution its status and its nature would stand on a much higher footing than that of a body set up either by ordinary law or by administrative decision of the Government. One more difference would be as regards the doing away with such an Organisation which if created by Constitution can only be disbanded by amending the Constitution while in the case of Body set up administratively it can be abolished by revoking the notification.
26. Another principal attack on the formation of the C.D.N.S. By the petitioner was that the decision to set up such a council being of great importance and a matter of policy could not have been taken by the Caretaker Cabinet appointed under Article 48(5) of the Constitution. It was emphasised by Mr. Talib H. Rizvi, as also Mr. Abdul Rehman Cheema that the life of the Caretaker Cabinet being for 90 days it cannot take decisions of permanent nature but its activities are confined only to running day-to-day affairs of the Government and should be geared towards holding of free and fair elections. Reliance has been placed on Kh. Muhammad Sharif v. Federation of Pakistan and 18 others PLD 1988 Lah. 725, Federation of Pakistan etc. v. Aftab Ahmad Khan Sherpao and others PLD 1992 SC 723 and Madan Murari Verma v. Ch. Charan Singh and another AIR 1980 Calcutta 95.
27. In reply, learned Attorney-General as also Mr. Pirzada urged that use of word "Caretaker" in Article 48(5) of the Constitution has only reference to the nature of the tenure of the Cabinet and is not indicative of limiting its powers. They submitted that the Constitution does not make any distinction between the Caretaker Cabinet and a Cabinet comprising elected representatives as regards the powers to be exercised.
28. Article 48(5) of the Constitution enjoins the President to appoint a caretaker Cabinet to run the affairs of the country pending the elections to the National Assembly and formation of Government. The use of word 'Caretaker' is not without significance and has to be given some meaning. The argument of the learned Attorney-General and Mr. Sharif-ud-Din Pirzada that 'Caretaker' signifies the temporary nature of the tenure appears to be attractive and coming from a jurist like Mr. Sharif-ud-Din Pirzada is entitled to great respect but with due deference we are unable to agree with them. A Cabinet appointed by the Prime Minister to run the affairs of the country till the next General Elections by its very nature is temporary and the life of it is limited by the Constitution itself till the next General Elections which are to be held within 90 days. It was thus not necessary to use the word 'Caretaker' to indicate temporary nature of the tenure. On the other hand we are of the view that this word has been used in Article 48(5) to emphasise the purpose of appointment and the nature of the power available to the Caretaker Government. In Khawaja Muhammad Sharif's case supra PLD 1988 Lahore 725 relied upon by the petitioner, it was observed by A.S. Salam, CJ as his lordship then was (at pages 762-763) para. 26 that: "The learned Attorney-General submitted that it is quite correct that Caretaker Cabinets have to take care of the day-to-day administration of the State. There may be no bar to take policy decisions if so required by the circumstances. He is right. Caretaker Cabinets have to confine themselves to take care of the day-to-day administration of the State. They can take all decisions requiring attention of action, may be having far-reaching effects, like in respect of war and peace or earthquake or floods. But they can neither forget the predominant position of their being Caretaker nor can they take undue advantage of their position either for themselves or for their political parties. They have to be impartial to everybody, including their rivals or opponents in the political fields. They cannot take advantage of their official position of Caretaker Government at the expense of other political forces or people at large. Neutrality, impartiality, detachment and devotion to duty to carry on day-to-day affairs of the State without keeping in view one's own interest or of one's party are the sine qua non of a Caretaker Cabinet."
' In the same report, Gul Zarin Kiyani, J also took the same view. The decision of Calcutta High Court in Madan Murari Verma v. Chaudhry Charm Singh and another AIR 1980 Ca1.95 too, supports this proposition.
28. Mr. Sharif-ud-Din Pirzada, with his usual skill, sought to draw distinction between the two above- cited cases and the case now before us and has explained the background in which those decisions were rendered--Reference was made to the following observations of Muhammad Rafiq Tarar, CJ (his lordship then was) in Ahmad Tariq Rahim's case supra at page 109, para. 18: "We find that if both Articles viz. 48(5) and 91(8) are read together, it becomes evident that there is no limitation on the power of President to appoint any person as Prime Minister. He has thus an absolute discretion to appoint any person as Prime Minister to head the Caretaker Cabinet. The appointment of Mr. Ghulam Mustafa Jatoi as Prime Minister during the interregnum to head the Caretaker Cabinet is unexceptionable. A Caretaker Government is certainly distinct from a Government appointed 'till other arrangements are made'. After the dissolution of Assembly the Caretaker Cabinet being no longer answerable to the House, nevertheless has to perform its functions with full responsibility until permanent Cabinet is formed."
' He also relied upon the following observations of M. Mahboob Ahmad, J. As his lordship then was (at page 170) para. 159: "So far as the powers of the Prime Minister/Caretaker Prime Minister as head of the Caretaker Cabinet are concerned, I could not find any material difference between the two except that the tenure of the Caretaker Prime Minister is to last till induction into office of a regularly elected Prime Minister by the new Assembly after the election. I am strengthened in this view by the fact that no separate oath of office has been prescribed for the Caretaker Prime Minister while assuming office.
It is also interesting to note that the words "Caretaker Prime Minister" as such do not appear anywhere in the Constitution".
29. The question which arose before the Full Bench in the case relied upon by Mr. Pirzada primarily related to the validity of the order of the then President of Pakistan dissolving the National Assembly. One of the contentions raised before the Court was that as Mr. Ghulam Mustafa Jatoi, who had been appointed Caretaker Prime Minister by the President, was the leader of the Opposition in the dissolved National Assembly, it was not open to the President to appoint him as Caretaker Prime Minister. This contention was repelled by the Full Bench, ruling that the discretion of the President to appoint a Caretaker Cabinet cannot be subjected to any restriction. The above said observations were made in that context. The Full Bench was not concerned with any decision taken by the Caretaker Cabinet as such.
30. Be that as it may, when this case went to the Supreme Court in appeal, Rustam S. Sidhwa, J. (his lordship then was) was pleased to make the following observation at page 682 which appears to be conclusive of this aspect of the matter: "The object of the Caretaker Cabinet is to fill a temporary void, so that it may conduct day-to-day administration, without getting involved in matters of substantive importance or policy or subjects having far-reaching effects, other than during an emergency or some urgency, till the new Government is installed."
Although no hard and fast rules can be laid down in respect of the powers available to the Caretaker Cabinet to take decisions as the answer would depend upon facts of each case but generally speaking a major policy-decision which can await the formation of regularly elected Government without causing any disruption or danger to the functioning of the State or orderly running of the country should be left to be determined by the elected representatives of the people, more so when the Caretaker Cabinet cannot claim to have been given any mandate by the people. There may not be any express restriction on the powers of the Caretaker Cabinet by the Constitution itself but the conclusion reached by us flows from the use of words "Caretaker Cabinet" in Article 48(5) of the Constitution as also very nature of the Caretaker Cabinet and the purpose for which it has been appointed.
30-A. This brings us to the question as to whether the decision to establish C.D.N.S. Could have been taken by the Caretaker Cabinet. A perusal of the notification under challenge shows that the Council has been constituted to advise the Federal Government on the matters relating to defence and national security, both of which are undoubtedly are by their very nature matters not only of immense importance but are such which do not brook even delay of single day. If the Government of the time feels that it is necessary to attain the advice on these vital matters from a Council like C.D.N.S., comprising of experts, it I would idle for anyone to raise any objection in this behalf. It goes to the credit of Mr. Pirzada that personally he would have liked that the decision to set up such a Council should be taken by the elected representative. But as has been pointed out by him, in the present proceedings we are only called upon to determine the legality of the decision and not its propriety nor can we substitute our opinion for that of the Government as to whether or not formation of the Council was justified by the situation prevailing in the country. The Constitution and existence of the Council is essentially linked up with the Caretaker set up and its continuation or otherwise will be the matter to be considered by the new Government, of course, keeping in view the national interest.
31. It may also be pointed out that the constitution of C.D.N.S., is not unprecedented as there are other countries in the world where such council does exist. For example, in the United States of America, the Council for national security was established by the National Security Act as far back as 1947. It comprises of the President, Vice-President, Secretaries for State and Defence, the Chairman of Staff and Director of Central Intelligence, among others. Similarly, in Turkey, such a council was constituted by Article 118 of the Turkish Constitution, 1982. This council is made up of the President, the Prime Minister, the Chief of General Staff, the Ministers for National Defence, Internal Affairs and Foreign Affairs, the Commanders of the Armed and Air Force and the General Commander of the Gandarmane. Although the petitioner as a citizen of this country may have locus standi to file this petition but we are of the view that the matters relating to the defence and security of the country should not be brought before, or debated upon in Courts of law and be settled at other appropriate for a like Parliament. Essentially the question is political in nature and therefore, it is within the domain of Government to take any decision about it. It may also be stated that though National Security Council has been functioning in the United States of America since 1947 and in Turkey yet we have not come across any case where its Constitution has been challenged.
32. Two apprehensions expressed by Mr. Talib H. Rizvi and Mr. Abdur Rehman Cheema in this respect were firstly that; C.D.N.S. Would be a supra body over and above the Cabinet and would undermine its authority particularly when Heads of the Armed Forces have been made members and secondly; that this arrangement tantamount to bringing the Armed Forces into political activities and governance of the country. Both these apprehensions are wholly unfounded and baseless. According to the impugned notification, the Council has been constituted in order to advise the Government only in matters of defence and national security. The role of the national council is thus advisory and recommendatory. The recommendations made by the Council have no binding effect on the Government or the Cabinet. It is a total misconception, therefore, to say that the Council can in any manner override the decisions of the Cabinet or take its place. The functioning of the Council is to advise the Federal Government on the matters relating to security and other related matters which require greater expertise. There can, thus be no possible exception to obtain advice from the experts on these issues of vital importance Mr. Talib H. Rizvi has himself stated that he was not objecting to the formation of the Council, but he had certain objections to its composition as he was of the view that the Prime Minister should not be its Member. Mr. Pirzada, on the other hand, stated that the representatives of the Provinces should have also been included in the Council as also certain other persons having specialized knowledge. Mr. M.D. Tahir wanted us to issue a direction to the Government to make the Chief Justices of the Provinces as Members.
Once the necessity of constituting the Council is conceded, the other questions i,e, as to its composition and membership are matters which should be better left to those constituting the Council and it is not for this Court to comment upon this aspect which is concerned only with the legality of the Council.
33. We have not been able to appreciate the necessity of filing of this petition at this juncture especially in view of the public statement made by no person less than the President of Pakistan that the role of the Council would be advisory and recommendatory in nature.
34. It was next argued by the learned counsel for the petitioner that the formation of the Council at this stage has tied down the hands of the succeeding Government which is to comprise of elected representatives of the people. This apprehension again appears to be unfounded. The petitioners are labouring under misconception that the formation of the Council is for all times to come. On the other hand, the constitution and existence of the Council is essentially linked up with the caretaker set-up. However, its continuance, which may appear to be desirable and beneficial, would depend upon the decision of the Parliament/elected Government, which, we are sure, shall be taken keeping in view the national interest. There is nothing in the notification under challenge, which takes away the powers of the succeeding Government to reconsider or review the decision to set up the Council.
35. It is surely a question of propriety for forming the Council and its continuance is not for us but is for those charged with the function of running the Government to decide. It is reiterated that the apprehension that in any manner the powers of the Prime Minister or the statutory functionaries stand curtailed or affected is wholly unfounded, when the Council is not Constitutional in nature but its role is only recommendatory and advisory.
36. Mr. Abdur Rehman Cheema referred to the oath of office taken by every Member of the Armed Forces before joining service and emphasized that it forbids any Member of the Armed Forces from indulging in political activities. We do not see any relevance in this argument as giving of advice as a Member of a Council on matters of defence and security of the country cannot, in any manner, be equated with indulging in political activities which the Constitution forbids. The Armed Forces, like any other Institution, have a sacred duty to defend the country and protect and preserve its ideological frontier also.
37. It may also be stated that the decision to set up the Council had emanated not from the Armed Forces but from the Caretaker Cabinet and the proposal has been accepted by a duly elected President. It may not be out of place to mention here that even the Chief of Army Staff is reported to have made the statement to the Press that the Council was not formed at their behest and its continuation will depend upon the will of the future Government.
38. There is, however, merit in the contention of Mr. Talib H. Rizvi that such a Council could riot have been created in a manner in which it was done i,e, by amending the Rules of Business by the President.
39. The Rules of Business have been framed pursuant to sub-Article (3) of Article 99 of the Constitution which empowers the President to make Rules for allocation and transaction of the business of the Federal Government. By the impugned notification rule 20-A of the existing rules has been substituted. Earlier this rule was introduced at the time when Article 152-A was enforced and died its natural death on its repeal. The Rules then framed did not by itself provide for setting up or establishment of the Council or its composition which had been dealt with by Article 152 of the Constitution. This rule was confined only to the matters of procedure to be followed by the Council by issuing notification purporting to amend the Rules of Business. Clearly substantive power of creating a Council could not have been provided by substituting rule 20-A as the creation of the Council is not a matter of procedure nor is it relatable to the allocation or transaction of the business of the Federal Government. It needs no gainsaying that the Rules of Business are promulgated in order to cater for the division of powers between the different functionaries, ministries, bodies or the Government already in existence. We are, therefore; of the view that the amendment in Rules of Business is bad firstly for the reason that rule 20-A having ceased to exist, Article 152-A could not have been substituted and secondly the substantive power of creating Body like C.D.N.S., was not a matter of procedure or allocation of business of the Federal Government.
40. Mr. Sharif-ud-Din Pirzada, learned amicus curiae did not seriously dispute this proposition. He as well as the learned Attorney-General for Pakistan, however, argued that such a Body could have been set up by the Federal Government in the exercise of its executive authority and as such the decision of the Government cannot be struck down merely on the ground that it has been exercised under a wrong provision of law. It was argued that it is the obligation of this Court to explore all possible avenues to find out if the impugned decision/notification could be upheld on any other basis.
41. The principle relied upon by Mr. Pirzada and learned Attorney-General stands firmly established and too well-known to need any authority. See Chairman, East Pakistan Railway Board v. Abdul Majid Sardar PLD 1966 SC 725 and Lahore Improvement Trust v. The Custodian, Evacuee Property PLD 1971 SC 811. In the second cited judgment the principle laid down is in the following words:- "Another principle attracted in the case is that before an order passed by a public authority is struck down it is the duty of the Court to explore every possible explanation for its validity and examine the entire field of powers conferred on the authority in pursuance to which the impugned order has been passed".
42. Keeping in view the above principle, we now proceed to examine the case from this angle.
Under Article 90 of the Constitution, the executive powers of the Federation vest in the President which he has to exercise on the advice of the Cabinet under Article 48(1) of the Constitution.
According to Article 97 of the Constitution the executive authority of the Federation extends to matters in respect of which Majlis-e-Shoora has the power to make laws. Reference to Fourth Schedule of the Constitution shows that defence and security are the two matters enumerated in the Federal Legislative List. Specific reference may be made to item No,1 of the list which when read with Items Nos.58 and 59, it is clear that the Federal Government could in the exercise of its executive power take any decision with respect to the defence and security of Pakistan and other matters incidental or ancillary thereto. The formation of a Council to advise the Government of these matters clearly is a matter within its executive power. As explained by Mr. Pirzada creation of such a Council is an administrative arrangement and amounts to set up an amicus administration.
It is not disputed by the learned counsel for the petitioner and indeed could not have been that it is open to the Federal Government to obtain opinion or any advice of any person or body on matters falling within its domain. Of course, the advice given by sueh a Body would not be binding as it is for those to whom the advice has been tendered whether to act upon it or chose not to do so. The composition of C.D.N.S., as given in the notification shows that the persons who have been made its members are all those who had direct connection with the defence, security and integrity of the country. The President apart from being the Head of the State is also the Supreme Commander of the Armed Forces. The function of the Council as given in para. 1 of the notification is to advise the Government in determination of national strategy and priorities in terms of overall national security, formation of defence policy with external and domestic policies, definition of task of the Armed Forces of Pakistan in accordance with the national strategy and other allied and related matters.
43. There is nothing either in the Constitution or any law for the time being in force which prohibits the creation of such a Council nor can it be said that the establishment of such a Council has affected the vested rights of any person or authority. It was, therefore, clearly competent to set up C.D.N.S., in the exercise of its executive powers. It has been observed by the Supreme Court of India in two cases namely Jayantilal v. F.N. Rana AIR 1964 SC 648 and Satwant Singh v. Assistant Passport Officer AIR 1967 SC 1836 that it was not possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of Governmental functions that remain after legislative and judicial functions are taken away, subject of course to the provisions of the Constitution or any law. As already observed, no provision of the Constitution or the law has been cited to show that such a Council could not have been formed by the Government in the exercise of its executive authority.
44. It was also argued by some of the learned counsel that on account of dissolution of the National Assembly, the President has no power to issue any Ordinance as, such power could only be exercised when the National Assembly is in existence but not in session. As the validity of any such Ordinance is not subject-matter of any of the petitions being disposed of by this judgment, we are not called upon to examine this contention.
' For the foregoing reasons all these petitions are dismissed with no order as to costs.
(Sd.) (Sd.)
MALIK MUHAMMAD QAYYUM, SH. IJAZ NISAR, JUDGE CHIEF JUSTICE