' MUHAMMAD YUNUS SURAKHVI, J.---Reference No,1 of 1997 has been made by the President of Azad Jammu and Kashmir under subsection (1) of section 46-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974, (hereinafter to be referred as the Constitution) to this Court for seeking its opinion on consideration of questions referred to. The points on which the opinion of Court has been sought are formulated in the reference as follows:--- "(i) whether after withdrawal of resolution introduced under section 18 of the Interim Constitution Act, 1974, another such like resolution can be moved within a period of six months?
(ii) whether the withdrawal of a resolution for vote of no confidence is envisaged under the provisions and scheme of the Constitution?
(iii) whether the mover of the resolution can withdraw the same without the permission of the Assembly?
(iv) whether after fixing and announcing the date for voting on the no confidence resolution, the Assembly was under constitutional imperative to hold its meeting so announced?"
2. On receipt of this reference the Court vide its order, dated 7-1-1998 deemed it proper to hear all the Members of the Legislative Assembly in the matter. Therefore, under Order XXXVI of the Supreme Court Rules it was ordered that notices shall issue to all the Members to file the statements of facts, if they so choose, as envisaged under rule 2 of the abovementioned order of the Supreme Court Rules. It was further directed that they may also appear personally or through their counsel at the time of hearing of reference. The Advocate-General was directed to furnish the addresses of all the Members of the Legislative Assembly to the Registrar so as to facilitate the matter for doing the needful. Raja Shiraz Kayani, Advocate-General, Raja Israr Ahmad Abbasi, Deputy Speaker, and Raja Muhammad Khurshid Khan, the learned Advocate for Raja Mumtaz Hussain Rathore, Speaker of the Legislative Assembly, Mr. Ali Khan Chughtai and Mrs. Noreen Arif, M.L.As. Have filed their statements of facts. Arguments in the case were addressed by all the concerned on 10-2-1998.
3. The brief facts giving rise to the present reference are that on 18-12-1997 a requisition was sent by fourteen Members of the Legislative Assembly to the Speaker of the Assembly under section 27(4) of the Constitution Act alleging therein that there was lot of resentment and unrest in the State due to the acts of the Government. Moreover, important matters of public importance are liable to be debated upon, therefore, the Session of the Legislative Assembly may be convened earlier and necessary proceedings may be initiated. On this application there is a note of Speaker which, translated into English, reads as under:--- "In order to express opinion on any matter of public importance on the application of Members of the Legislative Assembly the meeting of the Legislative Assembly is convened to be held on 22-12- 1997 at 10-00 a.m. In the Assembly Hall."
4. On 20-12-1997 a resolution of no-confidence under Rule 17 of the Azad Jammu and Kashmir Legislative Assembly Procedure and Conduct of Business Rules of 1975 (hereinafter to be referred as Rules of Procedure and Conduct of Business) was sent by Raja Israr Ahmad Abbasi, Deputy Speaker, to the Secretary of the Assembly. The English translation of the said notice is reproduced below:--- "Alongwith this notice a resolution for vote of no-confidence against Prime Minister of Azad Jammu and Kashmir is enclosed. Notice may be sent under rules from place to place and in the meeting called upon by the Speaker as required under section 27(4) of the Constitution Act, this resolution may be put up in the meeting. Members of the Assembly may be served with the said notice and other necessary legal proceedings may be taken."
' The resolution sent alongwith the notice, after being translated into English, is as follows:--- ' Resolution of no-confidence: Under section 18 of the Interim Constitution Act, 1974 against the Prime Minister of Azad Jammu and Kashmir, Barrister Sultan Mahmood Chaudhry.
"This meeting of the Legislative Assembly of Azad Jammu and Kashmir feels that the Prime Minister of Azad Jammu and Kashmir, Barrister Sultan Mahmood Chaudhry has totally failed in running the affairs of Government. He neither fulfilled his election promises nor did he make a serious attempt.
The people surrounding the Prime Minister are busy in corruption. The Prime Minister is so busy in his personal affairs that he does not have time to think upon the matters of public importance. This seriousness on the part of the Prime Minister is against the dignity and status of the Prime Minister of a base camp of the freedom movement. The Prime Minister has now lost his confidence in the Assembly, therefore, the members of the Legislative Assembly express their no-confidence over the Prime Minister and elect Raja Mumtaz Hussain Rathore as Prime Minister of Azad Government of the State of Jammu and Kashmir."
5. This resolution bears the signatures of Raja Israr Ahmad Abbasi, Deputy Speaker Legislative Assembly. The notice and the resolution sent by Raja Israr Ahmad Abbasi, Deputy Speaker, were received by the Assembly Secretariat vide Nos. 1106 and 1107 respectively on 20-12-1997. On the same day, i,e,, 20-12-1997, Ghulam Ahmad Abbasi, Secretary of the Azad Jammu and Kashmir Assembly, issued a Notice No,11769-11807/Assembly/97, dated 20-12-1997 to all the Members of the Legislative Assembly and sent a copy of resolution of no-confidence and a copy of notice, as envisaged under section 18 of the Constitution Act and Rule 17(1) of the Rules of Procedure and Conduct of Business.
6. On 22-12-1997, the date fixed for meeting of the Assembly, an application was moved by Raja Israr Ahmad Abbasi addressed to the Speaker of the Azad Jammu Kashmir Legislative Assembly. It was averred in the application that he had submitted a no-confidence motion against the Prime Minister of the Azad Jammu and Kashmir alongwith a notice but before its coming on the agenda he withdraws the resolution as well as the notice. It was further stated in the application that the reasons for the withdrawal of the resolution shall be submitted later on in detail in writing as such resolution for no-confidence may be deemed as being withdrawn. This application appears to have been moved at 1-10 p.m. On 22-12-1997 which after due process by the Assembly Secretariat was produced before the Speaker, who wrote a note on it. The English translation of the same may be reproduced below:--- "As the mover, Raja Israr Abbasi, has requested for withdrawal of no-confidence motion against the Leader of the House as such this notice may be deemed to have been withdrawn. No further action should be taken. The President in this regard may be informed."
7. This is the sum total of the material brought on record and both the sides, who addressed the Court for and against the reference, do not object to the correctness and validity of the said record.
8. Lengthy arguments were addressed in the case. Opening his arguments in support of the reference it was vehemently contended by Mr. Shiraz Kayani, the learned Advocate-General, appearing on behalf of the President, that so for as section 18 of the Constitution Act is concerned its bare reading makes it clear that once a resolution of no-confidence is moved against the Prime Minister and the provisions contained under section 18 are resorted to there is no going back on it without its ensuing consequences. According to the learned Advocate-General a detailed procedure for vote of no-confidence is laid down in the said section. It consists of six subsections.
So, once a step is taken under any subsection of section 18 of the Constitution it shall be deemed as a necessary corollary that all the relevant provisions of the Constitution stand activated, e.g. The moment a resolution for a vote of no-confidence is moved against the Prime Minister he automatically stands divested of his prerogative and power to tender advice to the President for dissolution of the Assembly, as stipulated under section 28 of the Constitution Act. Keeping in view the scheme of Constitution Act it can safely be said that a resolution for a vote of no-confidence against the Prime Minister cannot be used as a mere joke or a threat that is why under subsection
(6) of section 18 it has been provided that if a resolution is not passed another such resolution should not be moved until a period of six months has elapsed. Therefore, once a step is taken under section 18 of the Constitution Act it is bound to culminate as stipulated under subsections (5) or (6) of the said section. Thus, after a resolution is introduced under section 18 of the Constitution another such resolution cannot be moved within a period of six months. Even rule 17 of the Rules Procedure and Conduct of Business does not conceive of any circumvented procedure running contrary to one laid down under the said section and in presence of this section no other rule can be stretched into for the purpose of carrying out the intent of section 18 of the Constitution Act.
Thus, according to the learned Advocate-General, the withdrawal of the resolution for a vote of no- confidence is neither envisaged under the provisions and the scheme of the Constitution nor under Rule 17 of the Rules of Procedure and Conduct of Business. Hence after the introduction of a resolution under section 18 as a necessary implication it shall be deemed that the same has not been passed. To elaborate his arguments the learned Advocate-General submitted that even if an ordinary resolution is moved the same cannot be withdrawn except with the permission of the Assembly. In this view of the matter it was suggested by the learned Advocate-General that the resolution once moved could not have been withdrawn and a similar resolution could not be moved unless a period of six months has elapsed from the date of its withdrawal.
9. Sahibzada Ishaque Zafar, M.L.A./Senior Minister, Kh. Attaullah Additional Advocate-General, and Kh. Shahad Ahmed, Advocate, also addressed the Court and supported the contentions raised by Raja Shiraz Kayani, Advocate-General.
10. Raja Israr Ahmad Abbasi, Deputy Speaker, strenuously opposed the contentions raised by the learned Advocate-General. In the first instance Raja Israr Ahmad Abbasi submitted that under section 46-A of the Constitution Act this Court has advisory jurisdiction and the President can refer any question of law having public importance for advice from this Court. The questions referred herein in the reference are not the questions to law of public importance, hence, the Court is not under an obligation to consider the questions referred to and submit its answer. It was also contended by the Deputy Speaker that questions referred to by the President are of such a nature that they require probe into the affairs of the Assembly which will tantamount to an encroachment upon the sphere of the Legislative Assembly. Any type of proceedings initiated or taken in the Assembly are not within the domain of this Court as the sphere of all the three organs of the State, namely, the Legislature, Executive and the Judiciary are separately allotted to each one of them and one cannot inroad upon the sphere of the others. On the merits of the case it was submitted by the Deputy Speaker that in the provisions contained under section 18 of the Constitution Act the words "moving in the Assembly, passing or not passing the resolution" are words of high importance and show the intention of the legislature and the scheme of the Constitution. It was pointed out by Raja Israr Ahmad Abbasi, Deputy Speaker, that stage of passing or not passing of the resolution comes when a resolution is brought on the agenda of the day or in the orders of the day. If a particular resolution is brought on the orders of the day the mover will be asked by the Speaker to put up the resolution before the House. Even at this stage the mover has two options; (i) the mover may withdraw it without permission of the House and he has to simply intimate the House to this effect, or (ii) the mover will put the resolution before the House and in that eventuality he would start a speech by reading the gist of resolution which was included in the agenda. It was elaborated by the Deputy Speaker that when a resolution is moved in the House a debate has to take place and it has to go through the process of voting. If it does not secure majority of votes only then the stage of its passing or not passing will arise as envisaged in the Interim Constitution Act. If a resolution is withdrawn before its-coming on the agenda of the day or before moving it in the House, the same can be withdrawn and it can be moved again at any time thereafter, as no restriction has been imposed by the Constitution Act or the Rules of Procedure and Conduct of Business. The learned Deputy Speaker in support of his contentions referred to Rules 115, 118 and 17 of the Rules of Procedure and Conduct of Business and contended that the proposed resolution was never included in the agenda of the day nor the same was put before the House, therefore, the stage for its passing or not passing has not yet reached. Raja Israr Ahmad Abbasi referred us to the Rules of Procedure and Conduct of Business in the National Assembly, 1992 and maintained that almost similar phraseology was used in the National Assembly Rules as stipulated in the Rules of Procedure and Conduct of Business in Azad Jammu and Kashmir Legislative Assembly.
11. Raja Muhammad Khurshid Khan and Mr. Abdul Rashid Abbasi, Advocates, appearing for Raja Mumtaz Hussain Rathore, Speaker of the Assembly, strenuously argued that none of the provisions of the Constitution Act prohibit withdrawal of a resolution moved under section 18 of the Constitution Act prior to its introduction in Assembly for its passage. Since no provision of Constitution creates any bar for withdrawal of such a resolution, it will be presumed that the scheme of the Constitution Act impliedly allows such a recourse.
12. Sardar Rafique Mahmood Khan, the learned counsel for Raja Mumtaz Hussain Rathore, Speaker, also supported the contentions raised by Raja Muhammad Khurshid Khan and Mr. Abdul Rashid Abbasi.
13. After hearing the respective contentions of all the learned counsels, who addressed arguments before the Court, we may in the first instance attend to the preliminary objection raised by Raja Israr Ahmed Abbasi, Deputy Speaker, who has strenuously contended that this Court should decline to answer the questions referred by the President as the same are not the questions of law of public importance and are of such a nature that they require probe into the affairs of Assembly which will tantamount to an encroachment upon the affairs of the Legislative Assembly. Section 46-A(1) of the Constitution Act stipulates that if the President 'desires' to obtain opinion of the Supreme Court on any question law he may refer the same to the Supreme Court; the only condition precedent is that the question referred must be a question of public importance. It is not necessary for the President to state reasons to show that in fact the question referred is one of the 'public importance." The Supreme Court after taking proceedings as envisaged in the rules framed by the Supreme Court in that regard would consider the question referred and report its opinion on the same. For the sake of convenience section 46-A(1) is reproduced as below:- "Advisory jurisdiction.---(1) If, at any time the Chairman of the Council or the President desires to obtain the opinion of the Supreme Court of Azad Jammu and Kashmir on any question of law which he considers of public importance, he may refer the question to the Supreme Court of Azad Jammu and Kashmir for consideration."
The contention of Raja Israr Ahmed Abbasi, the Deputy Speaker, that the questions referred are not the questions of law but of facts is without substance because while forming an opinion law is applied to given facts and cannot be interpreted in vacuum. In the instant case, as is evident from the arguments advanced by the parties and their counsel, discussed above, there is no dispute between the parties about the facts which resulted in the reference. Therefore, it cannot not be said that as some facts have been narrated in the reference, the questions referred are the questions of fact and not of law. Besides under Order XXXVI, Rule (2) of the Supreme Court Rules when a reference is made under section 46-A of the Interim Constitution Act a notice is issued to the parties to whom the Court intends to hear to file statements of facts and law before the Court. The reason for calling upon the parties and to file statements of facts is for the purpose so as to apprise the Court of the relevant circumstances which gave rise to the question of law referred for answer.
The objection with regard to interference or encroachment upon the sphere of Legislative Assembly also merits no consideration for the simple reason that we have to interpret the provisions of Constitution Act and Rules of Procedure and Conduct of Business as they are and we have nothing to interfere with the affairs of the Legislative Assembly. Therefore, the preliminary objection raised by Raja Israr Ahmed Abbasi, the Deputy Speaker, is hereby repelled.
14. Questions 1 and 2 referred by the President are inter-linked and the same may be answered simultaneously. Section 18 of the Interim Constitution Act may usefully be reproduced:--- "18. Vote of no-confidence against Prime Minister.---(1) A resolution for a vote of no-confidence (hereinafter in this section referred to as the resolution may be passed against the Prime Minister by the Assembly.
(2) A resolution shall not be moved in the Assembly unless, by the same resolution the name of another member of the Assembly is put forward as the successor.
(3) A resolution shall not be moved in the Assembly while the Assembly is considering demands for grants submitted to it in the Annual Budget.
(4) A resolution shall not be voted upon before the expiration of three days, or later than seven days, from the date on which it is moved in the Assembly.
(5) If the resolution is passed by majority of the total membership of the Assembly, the President shall call upon the person named in the resolution as the successor to assume office and, on his entering upon office his predecessor and the Ministers appointed by him shall cease to hold office.
(6) If a resolution is not passed another such resolution shall not be moved until a period of six months has elapsed."
15. The corresponding provision with regard to vote of no-confidence against the Prime Minister in Pakistan is Article 95 of the Constitution of Islamic Republic of Pakistan 1973 which has undergone various amendments.
16. According to subsection (1) of section 18 of the Constitution Act a resolution for note of no- confidence may be passed against the Prime Minister by the Assembly. Under subsection (2) such a resolution is to be moved in the Assembly. Subsection (4) postulates that it shall not be voted upon before the expiration of three days or later than seven days from the date on which it is moved in the Assembly. Subsection (5) of the said section speaks of the passing of the resolution and subsection (6) stipulates that if a resolution is not passed another such resolution shall not be moved until a period of six months has elapsed. While interpreting section 18 of the Constitution Act and its subsections the words "moving in Assembly" and "passing or not passing the resolution" are important and manifest the intention of the Legislature and scheme of the Constitution. The stage of passing or not passing a resolution arises when a resolution is brought in the Orders of the Day on agenda of the day. Even on that particular Day the mover of the resolution will be asked by the Speaker to put up the Resolution before the House. The mover has a right not to put up the resolution before the House and he can withdraw it without the permission of the House of the Speaker. Rule 115 of the Rules of Procedure and Conduct of Business, 1975 is a clear manifestation of the above fact and the same, for the sake of convenience, may be reproduced below:- {{URDU TEXT}} The words "resolution of no-confidence against the Prime Minister is not passed" positively suggest a stage when the resolution is moved in the Assembly and after debate the same is voted upon and if does not secure majority of votes then such a type of resolution shall not be moved until a period of six months has elapsed. Precisely the stage of passing or not passing the resolution arises when it is voted upon but if the resolution is withdrawn before its moving in the Assembly or being brought on the agenda of the day, there seems to be no bar for moving the similar type of resolution at any time thereafter.
17. None of the provisions of the Constitution Act, 1974, prohibits the withdrawal of a resolution moved under section 18 of the Constitution Act prior to its introduction in the Assembly for its passage. Thus, there exists no legal impediment for a Member of the Assembly to move such a resolution afresh at any time.
18. As stated in earlier part of the judgment while narrating the necessary facts that the Speaker of the Assembly on requisition made by 14 Members of the Legislative Assembly under section 27 subsection (4) of the Constitution Act summoned the Assembly to meet on 22-12-1997, to discuss and consider some other matters of public importance and it was not convened to consider the resolution of no-confidence. However, the Deputy Speaker vide his notice, dated 20-12-1997, addressed to the Secretary of the Azad Jammu and Kashmir Legislative Assembly requested that his resolution. For vote of no-confidence against the Prime Minister may be considered in the meeting of the Assembly convened by the Speaker. The Secretary of the Assembly, Mr. Ghulam Ahmed Abbasi, on the same day i,e,, on 20-12-1997, wrote a letter addressed to the Members of the Legislative Assembly intimating them with regard to the notice and the resolution of no- confidence. On the notice as well as on the resolution there appears to be no note of the Speaker that on 22-12-1997, the matter of no-confidence against the Prime Minister shall be considered. The resolution of no-confidence was not included in the orders of the day or in the agenda of 22-10- 1997. In the rules of Procedure and Conduct of Business a definite procedure has been laid down for moving the vote of no-confidence against the Prime Minister. Rule 17 of the said Rules reads as under:--- {{URDU TEXT}}
19. A combined reading of section 18 of the Constitution Act and rule 17 of the Rules of Procedure and Conduct of Business shows that a resolution for no-confidence against Prime Minister is to be moved in the Assembly and is to be included in the Orders of Day or the agenda as without including it in the agenda no proceedings could be taken. The resolution having been included in the agenda the mover of the resolution shall be called upon either to support or not to support the resolution.
20. The corresponding rules in Pakistan are called the Rules of Procedure and Conduct of Business in the National Assembly, 1992 (hereinafter to be referred as to the Rules of National Assembly of Pakistan). Rule corresponding to Rule 115 (moving of resolutions) in Pakistan is 142 while rule relating to vote of no-confidence against Prime Minister is Rule 21 of Rules of National Assembly of Pakistan.
21. As no provision of the Interim Constitution Act creates any bar for withdrawal of such a resolution it will be presumed that the scheme of the Constitution impliedly allows such a recourse.
22. Kh. Attaullah, the learned Additional Advocate-General, relied upon the provisions of section 28 of the Constitution Act and submitted that under subsection (1) of the said section the President shall dissolve the Assembly if so advised by the Prime Minister and the Assembly shall, unless sooner dissolved, and dissolved at the expiration of 48 hours after the Prime Minister has so advised but in the explanation it has been provided that such a Prime Minister against whom a resolution for no-confidence has been moved in the Assembly he can still advise for the dissolution of Assembly in the interregnum. Relying on the explanation of the above section it was contended that a similar type of phraseology with regard to the moving of no-confidence motion against the Prime Minister has been used in section 28 therefore, it can be construed that the Prime Minister will be competent to advise for the dissolution of the Assembly if the resolution has not been passed as yet but the same has been moved in. The Assembly. In our opinion for the purpose of the present reference it makes no difference whether "moved" means moved in the House or means moved before the Secretary of the Assembly because another resolution of no-confidence cannot be moved if the first one is "not passed". Since the question as to whether a Prime Minister against whom a vote of no-confidence has been moved in the Assembly but the same has not been passed as yet can competently advise the President to dissolve the Assembly or not does not form part of the reference nor question to this effect has been formulated or referred to us for our answer. Therefore, we are of the considered view that it is beyond the scope of reference to dilate upon the aforesaid contention.
23. Now we advert to answer the questions referred to us. Questions (i) and (ii) are answered in terms that in case of withdrawal of a resolution introduced under section 18 of the Constitution Act, a fresh no-confidence resolution can be moved because the withdrawal was made before voting and it cannot be said that the resolution was "not passed". There is no bar provided in the Constitution itself, therefore, the presumption would be that such a resolution can be with drawan under the scheme of the Constitution and the rules made thereunder. The Rules of Procedure and Conduct of Business framed under section 59 of the Constitution Act clearly postulate that the mover of resolution may withdraw a resolution and decline to put up the same before the Floor of the Assembly but once he puts the resolution before the Floor of the House on being asked by the Speaker he has to read out the gist of the resolution and then it has to undergo a process of voting.
In the case in hand it was within the discretion of mover of the resolution to withdraw the resolution and after such withdrawal no embargo could be placed for the moving of the similar type of resolution thereafter.
24. The answer to question (iii) has been dealt with in the pre-paras. Of the judgment, suffice it to say that the mover of resolution can withdraw the same without the permission of the Assembly if he does not want or declines to put it up before the Assembly.
25. Similarly while dealing with question (iv) it may be stated that we have already held that no date for moving no-confidence resolution was ever fixed or announced so the Assembly was not under Constitutional obligation to hold its meeting. Had the resolution been brought on the agenda of the Assembly or the Orders of the Day and its mover had announced to put the resolution before the Assembly then as envisaged under Rule 118 of the Rules of Procedure and Conduct of Business he could not have withdrawn it without the permission of Assembly. In the instant case, the resolution was not included in the agenda or the Orders of the Day so it could have been withdrawn.
26. Before parting with the reference it may be stated that we are indebted to the learned counsel on both sides for the able assistance rendered by them through their arguments particularly the most valuable assistance rendered by Raja Israr Ahmad Abbasi, the Deputy Speaker. The reference is, thus, answered accordingly.