' AJMAL MIAN, C J.--The above two Constitution petitions, which have been filed directly in this Court under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution), were disposed of by the following short order dated 12-1-1999:-- "For the reasons to be recorded later, the above Constitution petitions are disposed of as under:-- ' Since under the first part of sub-clause (c) of clause (2) of Article 232 of the Constitution, the Federal Government can assume the powers vested in or exercisable by anybody or authority in the Province other than the Provincial Assembly, the incidental and consequential provisions to be made referred to in the second part thereof are relatable to the Order of the Federal Government dated 30-10-1998. In consequence, till the above Order holds the field, the power of the Provincial Assembly of Sindh shall not be restricted to make any law which under the Constitution and the existing Rules of the Procedure of the Provincial Assembly of Sindh, it has power to make as contemplated by clause (4) of Article 232 of the Constitution.
' Resultantly, the Order dated 10-11-1998 to the extent indicated above, is declared to be without lawful authority and of no legal effect."
2. I intend to record my reasons in support of the above-quoted short order.
3. The brief facts leading to the filing of the above petitions are that the Federal Government pursuant to the declaration of Proclamation of Emergency on 28-5-1998 under Article 232 of the Constitution (which is in force) issued an order under paragraph (c) of clause (2) of Article 232 of the Constitution on 30-10-1998 published in the Extraordinary Gazette of Pakistan. The above order reads as follows:-- "Whereas a Proclamation of Emergency issued under Article 232 of the Constitution is in force; ' Now, therefore, in exercise of the powers conferred by paragraph (c) of clause (2) of Article 232 of the Constitution, the Federal Government is plased-
(a) to direct the Governor of the Province of Sindh to assume on behalf of the Federal Government all the functions and powers of the Government of that Province and all the powers vested in, or exercisable by, all bodies or authorities in the Province other than the Provincial Assembly: Provided that the Governor may allow any or all bodies or authorities to function or continue to function subject to his control and superintendence;
(b) to make the following incidental and consequential provisions which appear to the Federal Government to be necessary for giving effect to the objects of the Proclamation, namely:--
(i) in the exercise of the functions which the Governor has been directed to assume, he shall act forthwith to restore peace throughout the Province, to take strict action against criminal elements irrespective of their political affiliations, to ensure that the random or motivated killing of innocent citizens shall cease, to take effective steps for the arrest and apprehension of terrorists, to suppress sectarian killings, to combat acts of subversion, whether external or internal, to eliminate internal disturbances, to protect vital national institutions against external and internal threats and dangers, to restore business confidence, and to create a peaceful environment in which ordinary citizens can conduct their day to day affairs in accordance with their Constitutional rights and entitlement within the Province;
(ii) the operation of the following provisions of the Constitution shall stand suspended in relation to the Province of Sindh, namely.-- ' Articles 130 to 136:
(iii) any reference in the Constitution to the Provincial Government or Chief Minister shall, in relation to the Province of Sindh, be construed as a reference to the Governor; and
(iv) the Chief Minister and Provincial Ministers of the Province of Sindh shall forthwith cease to hold office during the period this Order remains in force. A.W.Kazi, Cabinet Secretary."
' The above order was followed by another order dated 10-11-1998 also issued by the Federal Government pursuant to the above provisions of the Constitution (i,e, paragraph (c) of clause (2) of Article 232). The same reads as under:-- "In exercise of the powers conferred by paragraph (c) of clause (2) of Article 232 of the Constitution of the Islamic Republic of Pakistan the Federal Government is pleased to make the following amendment in its order dated 30th October, 1998, namely.-- ' 'In the aforesaid Order in paragraph (b) in clause (ii) for the word 'Articles' the words, figures and brackets 'Clause (3) of Article 53 and clause (3) of Article 54 read with Article 127 in their application to the Province of Sindh in so far as they relate to the powers and functions of the Speaker and Deputy Speaker and Articles' shall be substituted. A.W.Kazi, Cabinet Secretary."
4. The petitioner Syed Jalal Mehmood Shah (hereinafter referred to by name) in Constitution Petition No,30 of 1998 at the relevant time was acting as the Speaker of the Provincial Assembly of Sindh in accordance with Article 53(3) read with Article 127 of the Constitution by virtue of the following Notification dated 26-10-1998: "No, PAS/Legis-G-3/97.--Consequent upon acceptance of the resignation tendered by Mr. Nawab Mirza Advocate as Speaker, Provincial Assembly of Siridh, the office of the Speaker has become vacant with effect from 26th October, 1998 as per Article 53(7)(a) read with Article 127 of the Constitution of Islamic Republic of Pakistan, 1973.
' Now therefore in accordance with Article 53(3) read with Article 127 of the Constitution of the Islamic Republic of Pakistan, Syed Jalal Mehmood Shah, Deputy Speaker of Provincial Assembly of Sindh shall act as Speaker, Provincial Assembly of Sindh with effect from 26th October, 1998 till the office of the Speaker is occupied by the person elected as Speaker by the Provincial Assembly of Sindh.
(Hasan Feroz)
Secretary, Provincial Assembly of Sindh."
5. Syed Jalal Mehmood Shah, upon receipt of two requisitions for the session of the Provincial Assembly of Sindh under clause (3) of Article 54 read with Article 127 of the Constitution, which were signed by 28 Members of the Provincial Assembly of Sindh, by his Order dated 12-11-1998, in exercise of powers conferred upon him under clause (3) of Article 54 read with Article 127 of the Constitution and all other provisions enabling him in this behalf, and also in exercise of powers conferred upon him under Rule 211 suspended Rule 3(1) and (2) of the Rules of Procedure for the Provincial Assembly of Sindh (hereinafter referred to as the Rules), summoned the Provincial Assembly of Sindh to meet on a requisition by Members on Thursday, the 12th November, 1998 at 3-00 p.m. In the Sindh Assembly Building, Karachi. The above order reads as follows:-- "No, PAS/Speaker/98.--The following Order made by the Acting Speaker, Provincial Assembly of Sindh is hereby published for general information:
' I, Syed Jalal Mehmood Shah, Acting Speaker, Provincial Assembly of Sindh in exercise of the powers conferred upon me vide clause (3) of Article 54 read with Article 127 of the Constitution of the Islamic Republic of Pakistan and all other provisions enabling me in this behalf and also in exercise of the powers conferred upon me vide Rule 211 I suspend Rule 3(1) & (2) of the Rules of Procedure of the Provincial Assembly of Sindh, I am pleased to summon the Provincial Assembly of Sindh to meet on a requisition by Members on Thursday the 12th November, 1998, at 3-00 p.m. In the Sindh Assembly Building, Karachi.
' Karachi, the dated 12th November, 1998 (Sd.)
(Syed Jalal Mehmood Shah), Acting Speaker, Provincial Assembly of Sindh."
6. That it may be pertinent to mention that under Requisition 1 election of new Speaker under the Constitution and Rules of Procedure was sought, whereas under the second Requisition the following five items were sought to be discussed:-- "(1) Imposition of Governor's Rule in Sindh.
(2) Accusation of MQM being involved in-Hakim Saeed's murder.
(3) Financial crisis in Sindh.
(4) Manipulated results of Census.
(5) Kala Bagh Dam."
7. That pursuant to the above summoning of the Provincial Assembly of Sindh, Syed Jalal Mehmood Shah issued following Agenda for the meeting of the Provincial Assembly which was to be held on 12-11-1998:-- "Business to be brought forward before the Legislature on Thursday the 12th November, 1998 at 3- 00 p.m. I. (A) RECITATION FROM THE HOLY QUR'AN. (B) NAAT SHAREEF.
II. OATH OF AFFIRMATION BY MEMBER, IF ANY.
III. ANNO UNCEMENT OF PANEL OF FOUR CHAIRMEN.
IV. ELECTION OF SPEAKER.
(a) Members to be informed that Rule 7 of the Rules of Procedure of the Provincial Assembly of Sindh any member may propose or second the name of any other member for election as Speaker.
(b) Members to be informed that nomination papers for the post of Speaker are to be delivered by the candidate or his proposer to the Additional Secretary, Provincial Assembly of Sindh in his office by 4-00 p.m. On 12th November, 1998.
(c) The scrutiny of Nomination papers will be held at 4-30 p.m. On 12th November, 1998 in the Chamber of Speaker in presence of the candidates or their proposer or seconder.
' Karachi, the 12th November, 1998.
(Sd.)
(Syed Jalal Mehmood Shah), Acting Speaker, Provincial Assembly of Sindh."
8. It appears that on account of the above-quoted order dated 10-11-1998 issued by the Federal Government under paragraph (c) of clause (2) of Article 232 of the Constitution, whereby the powers and functions of the Speaker and Deputy Speaker contained in clause (3) of Article 53 and clause (3) of Article 54 read with .Article 127 of the Constitution were suspended, Syed Jalal Mehmood Shah and the other Members of the Provincial Assembly of Sindh were not allowed to enter into the premises of the Provincial Assembly inasmuch as access to the latter building was blocked by parking of various types of vehicles on the crossings of the roads leading to the Provincial Assembly and by posting personnel of the Law Enforcement Agencies.
9. That another attempt was made by Syed Jalal Mehmood Shah to hold meeting of the Provincial Assembly of Sindh on 16-11-1998 at 10-00 a.m. For which the following Agenda was issued:-- "Business to be brought forward before the Legislature on Monday the 16th November, 1998 at 10-00 a.m. I. (A) RECITATION FROM THE HOLY QUR'AN. (B) NAAT SHAREEF.
II. OATH OF AFFIRMATION BY MEMBER, IF ANY.
III. LEAVE APPLICATION, IF ANY.
IV. PRIVILEGE MOTION NO.2 GIVEN NOTICE OF BY MR. ABDUL SATTAR ANSARI, MPA.
V. ADJOURNMENT MOTION NO.1, GIVEN NOTICE OF BY MR. M. ARIF SIDDIQUI, MPA.
VI. ELECTION OF SPEAKER
(a) Members to be informed that under Rule 7 of the Rules of Procedure of the Provincial Assembly of Sindh any member may propose or second the name of any other member for election as Speaker.
(b) Members to be informed that nomination papers for the post of Speaker are to be delivered by the candidate or his proposer or seconder to the Acting Secretary, Provincial Assembly of Sindh in his office by 3-30 p.m. On 16th November, 1998.
(c) The scrutiny of nomination papers will be held at 4-00 p.m. On 16th November, 1998 in the Chamber of Acting Speaker in presence of the candidates of their proposer or seconder.
' VII. ANY OTHER BUSINESS WITH THE PERMISSION OF THE CHAIR.
' Karachi, the 14th November, 1998.
(Sd.)
(Syed Jalal Mehmood Shah), Acting Speaker, Provincial Assembly of Sindh."
' The above meeting was also not allowed to be held, whereupon Syed Jalal Mehmood Shah filed above direct Constitution Petition No,30 of 1998, challenging the above order dated 10-11-1998 issued under paragraph (c) of clause (2) of Article 232 of the Constitution.
9. In the above Constitution Petition the Federation has filed a written statement on or about 23rd December, 1998, in which the contents of the above petition are denied and maintainability of the same is also questioned. In para.4 of the above written statement relating to the facts, the following averments have been made:-- "In reply to para. 4, it is submitted that, after the Notification dated 10-11-1998, the requisition of the Provincial Assembly under Article 54(3), for any purpose other than law-making, is suspended under the Constitution and the petitioners have no right to requisition such a session."
10. Constitution Petition No,31 of 1998 has been filed by Mr. Nawab Mirza (who resigned as the Speaker of the Provincial Assembly of Sindh on 26-10-1998 to facilitate a fresh election of the Speaker) and two other M.P.As. Abdul Qadir Lakhani and Asadullah Khan.
11. That as per averments in the memo. Of petition the above three petitioners belong to MQM, which has 28 seats in the Provincial Assembly of Sindh besides having 12 seats in the National Assembly and 5 seats in the Senate. The above party was sharing power, inter alia, in the Provincial Government of Sindh in coalition with Pakistan Muslim League (Nawaz Group) and other political parties under the Chief Minister ship of Liaquat Jatoi belonging to Pakistan Muslim League (Nawaz Group) till a few days prior to the issuance of the above-quoted order dated 30.10.1998 in exercise of powers conferred by paragraph (c) of clause (2) of Article 232 of the Constitution, whereby the Federal Government through the Governor of the Province assumed all the functions and powers of the Government of the Province of Sindh and all powers vested in or exercisable by, all bodies or authorities in the Province other than the Provincial Assembly.
' In the above petitions the three petitioners have not only assailed the above orders dated 30-10- 1998 and 10-11-1998 but have also challenged the continuation of the Emergency in the country.
They have also assailed Notification dated 12-11-1998 also issued under above paragraph (c) of clause (2) of Article 232 of the Constitution providing as under:- "Notwithstanding anything contained in any law, Rules, Resolution or legal instrument posting and transfer against the posts specified below shall require prior approval of the Federal Government in the Establishment Division:-- ' All posts in BS-20/equivalent and above under the Sindh Government and its attached departments, statutory organizations, autonomous bodies and establishment etc. And (b) all posts of Deputy Commissioner and District Superintendents of Police in Sindh."
12. That the above two Constitution Petitions came up for summary hearing before a Bench of this Court on 23-11-1998 when the following orders were passed: "(a) In C.P.No,30/98: ' The main contention advanced by Mr.Abdul Mujeeb Pirzada is that from perusal of clause (c) of paragraph (2) of Article 232 read with paragraph (4) thereof, it is evident that the functions of a Provincial Assembly cannot be suspended on account of imposition of emergency under the above Article. His further contention is that if the Assembly is to function, the offices of Deputy Speaker and Speaker are necessary part of the Assembly and therefore their functions cannot be suspended. We would issue notice to the respondents, the learned Attorney General for Pakistan and the Advocate General Sindh for 3-12-1998."
"(b) In C. P.No,31/98: ' We are not inclined to entertain the above petitions on other grounds urged in the petitions, but we are inclined to issue notice to the respondents, the Attorney General for Pakistan and the Advocate General, Sindh for 3-12-1998 on the question of vires of the notifications suspension of the functions of the Provincial Assembly and its Deputy Speaker."
13. It will not be out of context to mention that in my opinion on the imposition of Emergency in the case of Farooq Ahmad Khan Leghari v. Federation of Pakistan (PLD 1999 SC 57), I have observed as under about the ground of the internal disturbances beyond the power of a Provincial Government to control referred to in clause (1) of Article 232 of the Constitution:-- "It will not be out of context to mention that although the learned Attorney-General invited our attention to the law and order situation obtaining in Sindh and certain sectarian killings in Punjab but he has not been able to demonstrate that the same warranted imposition of Emergency and not an action under Article 145 or Article 146 of the Constitution particularly in Sindh."
' But, at the same time, in my opinion I also enumerated the effects of the imposition of Emergency as under:-- "In Pakistan once an emergency is imposed it has inter alia the following far-reaching consequences flowing therefrom:
(a) That under clause (2) of Article 232 of our Constitution, the Parliament acquires the power to make law for a Province of any part thereof in respect of any matter not enumerated in the Federal Legislative List or the Concurrent Legislative List;
(b) that the executive authority of the Federation is extended as to include giving of direction to a Province as to the manner in which the executive authority of the Province is to be exercised;
(c) that the Federal Government by an order can assume to itself or direct the Governor of a Province to assume on behalf of the Federal Government or any of the functions of the Government of the Province etc.;
(d) that the Parliament becomes empowered to extend its life by one year;
(e) that once a Proclamation of Emergency is approved in the joint session of the Parliament in terms of clause (7) of Article 232, there is no mechanism provided for in the Constitution to bring an end to the same except by revocation at the sweet will of the Government in power;
(f) that by virtue of clause (1) of Article 233 the State acquires the power to make any law or to take any executive action in deviation of the Fundamental Rights contained in Articles 15, 16,17, 18, 19 and 24 of the Constitution;
(g) that in case the President passes an order under clause (2) of Article 233 the enforcement of the Fundamental Rights mentioned in the order through the Courts stand suspended. In other words, not only the citizens are denied their Fundamental Rights but the Courts' power to enforce the same is also denuded."
14. That it may be observed that under paragraph (c) of clause 2 of Article 232 of the Constitution the Federal Government can assume to itself or direct the Governor of a Province to assume on behalf of Federal Government all or any of the functions of the Government of the Province, and all or any of the powers vested in or exercisable by, anybody or authority in the Province other than the Provincial Assembly. Indeed this power, like any other power vested in a State functionary, is to be exercised in good faith. It is a matter of common knowledge, of which this Court can take judicial notice that the Provincial Government of Sindh had failed to restore law and order in the Province during its tenure of nearly two years, particularly in Karachi where hundreds of people became victim of terrorism and lost their lives. The acts of terrorism had been going on for quite some period in Sindh particularly in Karachi. Inter alia the previous Federal Government was dismissed under repealed Article 58(2)(b) of the Constitution by the then President on the ground that it had resorted to extra-judicial killing in Sindh, which ground was upheld by a Bench of this Court headed by the then Hon'ble Chief Justice Mr. Justice Sajjad Ali Shah. (The case of Mohtarama Benazir Bhutto and another v. President of Pakistan and others PLD 1998 SC 388). Thus prima facie the Federal Government's above action under paragraph (c) of clause (2) of Article 232 of the Constitution was warranted by the situation obtaining.
15. It is true that in our judgment in the above Emergency case of Farooq Ahmad Khan Leghari, we have reserved the power of this Court to reexamine/review the continuity of the Proclamation of Emergency at the appropriate stage. The same can be done provided a petitioner specifically pleads the circumstances and the events supported with material evidence, which have taken place after rendering of the above judgment in the emergency case by this Court warranting review of the validity of the continuity of the Proclamation of Emergency. The above particulars are lacking in the instant Constitution Petitions. We, therefore, intend to examine only the validity of the above-quoted order dated 10-11-1998 passed under paragraph (c) of clause (2) of Article 232 of the Constitution, in these Constitution Petitions also.
16. In support of the above petitions Messrs Abdul' Mujib Pirzada and Nawab Saeedullah Khan learned counsel for the petitioners, have vehemently contended that under paragraph (c) of clause (2) of Article 232 of the Constitution, the Federal Governnient could not have passed the above impugned order dated 10-11-1998, suspending the operation of clause (3) of Article 53 and clause (3) of Article 54 of the Constitution relating to the Speaker and Deputy Speaker, as paragraph (c) itself expressly provides "other than the Provincial Assembly" and not only this but even the first notification dated 30-10-1998, whereby the powers of the Provincial Government under above provisions of the Constitution were assumed itself expressly excluded the Provincial Assembly from its ambit.
17. Chaudhry Muhammad Farooq, learned Attorney-General appearing for the Federal Government and also on Court notice, has urged that the Provincial Assembly of Sindh can only carry out the legislative work and no other work and since the powers and functions of the Speaker and the Deputy Speaker under the aforesaid clause (3) of Article 53 and clause (3) of Article 54 have nothing to do with the legislative power, the above impugned order was intra vires. According to him, the above order was covered by the second part of paragraph (c) of clause (2) of Article 232 of the Constitution, which empowers the Federal Government to make such incidental and consequential provisions as it appear to it to be necessary or desirable for giving effect to the object of the Proclamation, including provisions for suspending in whole or in part, the operation of any of the provisions of the Constitution relating to anybody or authority in the Province.
18. Mr. Syed Sami Ahmed, learned counsel appearing for the Province of Sindh, adopted somewhat different line of argument that what was urged by learned Attorney-General by contending that for all intents and purposes the Provincial Assembly of Sindh has become non-functional on account of the passing of the above order dated 30-10-1998 read with order dated 10-11-1998 under paragraph (c) of clause (2) of Article 232 of the Constitution, keeping in view the Rules.
19. Before dealing with the above contentions, it may be pertinent to quote clauses (1) to (4) of Article 232, clauses (1) to (3) of Article 234 of the Constitution and also to refer to the relevant provisions of the Constitution relating to the working of the Provincial Assembly and the Provincial Government.
' The above clauses (1) to (4) of Article 232 and clauses (1) to (3) of Article 234 of the Constitution read as under:-- "232.--(1) If the President is satisfied that a grave emergency exists in which the security of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency.
(2) Notwithstanding anything in the Constitution, while a Proclamation of Emergency is in force,--
(a) Majlis-e-Shoora (Parliament) shall have power to make laws for a Province, or any part thereof, with respect to any matter not enumerated in the Federal Legislative List or the Concurrent Legislative List;
(b) the executive authority of the Federation shall extend to the giving of directions to a Province as to the manner in which the executive authority of the Province is to be exercised; and
(c) the Federal Government may by Order assume to itself, or direct the Governor of a Province to assume on behalf of the Federal Government, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, any body or authority in the Province other than the Provincial Assembly, and make such incidental and consequential provisions as appear to the Federal Government to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending, in whole or in part, the operation of any provisions of the Constitution relating to anybody or authority in the Province: ' Provided that nothing in paragraph (c) shall authorise the Federal Government to assume to itself, or direct the Governor of the Province to assume on its behalf, any of the powers vested in or exercisable by a High Court or to suspend either in whole or in part the operation of any provision of the Constitution relating to High Courts.
(3) The power of Majlis-e-Shoora (Parliament) to make laws for a Province with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties upon the Federation, or officers and authorities of the Federation, as respects that matter.
(4) Nothing in this Article shall restrict the power of a Provincial Assembly to make any law which under the Constitution it has power to make, but if any provision of a Provincial law is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) has under this Article power to make, the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Provincial law, shall prevail and the Provincial law shall, to the extent of the repugnancy, but so long as the Act of Majlis-e-Shoora (Parliament) continues to have effect, void."
234.--(1) If the President, on receipt of a report from the Governor of a Province or otherwise, is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution, the President may, or if a resolution in this behalf is passed at a joint sitting shall, by Proclamation,--
(a) assume to himself, or direct the Governor of the Province to assume on behalf of the President all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, anybody or authority in the Province, other than the Provincial Assembly;
(b) declare that the powers of the Provincial Assembly shall be exercisable by, or under the authority, of Majlis-e-,Shoora (Parliament); and
(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of the Constitution relating to any body or authority in the Province: ' Provided that nothing in this Article shall authorise the President 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 in whole or in part the operation of any provisions of the Constitution relating to High Courts.
(2) The provisions of Article 105 shall not apply to the discharge by the Governor of his functions under clause (I).
(3) A Proclamation issued under this Article shall be laid before a joint sitting and shall cease to be in force at the expiration of two months, unless before the expiration of that period it has been approved by resolution of the joint sitting and may be like resolution be extended for a further period not exceeding two months at a time; but no such Proclamation shall in any case remain in force for more than six months."
20 A perusal of the above-quoted clause (1) of Article 232 indicates that the President has been empowered if he is satisfied that a grave emergency exists in which the security of Pakistan or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control, to issue a Proclamation of Emergency; whereas clause (2) thereof which commences with non obstante provision, provides the effects of issuance of a Proclamation as to the working of the Provincial Legislature and the Executive inasmuch as:--
(a) under paragraph (a) thereof it has been provided that the Majlis-e-Shoora (Parliament) shall have power to make laws for a Province, or any part thereof, with respect to any matter not enumerated in the Federal Legislative List or the Concurrent Legislative List;
(b) whereas paragraph (b) of the above clause lays down that the executive authority of the Federation shall extend to the giving of directions to a Province as to the manner in which the executive authority of the Province is to be exercised; and
(c) paragraph (c) thereof provides that Federal Government may by order assume to itself, or direct the Governor of a Province to assume on behalf of the Federal Government, all or any of the functions of the Government of the Province and all or any of the powers vested in, or exercisable by, any body or authority in the Province other than the Provincial Assembly, and make such incidental and consequential provisions as appear to the Federal Government to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending, in whole or in part, the operation of any provisions of the Constitution relating to anybody or authority in the Province.
' It may further be noticed that the proviso to the above paragraph (c) clarifies that nothing in paragraph (c) shall authorise the Federal Government to assume to itself or direct the Governor of the Province to assume on its behalf, any of the powers vested in or exercisable by a High Court, or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Courts.
' It may also be pointed out that clause (3) of above Article 232 of the Constitution provides that the power of Majlis-e-Shoora (Parliament) to make laws for a Province with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties upon the Federation or officers and authorities of the Federation, as respects that matter.
' It may further be noted that clause (4) of the above Article clarifies that nothing in the above Article shall restrict the power of a Provincial Assembly to make any law which under the Constitution it has power to make, but if any provision of a Provincial law is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament), which Majlis-e-Shoora (Parliament) has under this Article power to make, the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Provincial law, shall prevail and the Provincial law shall to the extent of the repugnancy, but so long only as the Act of Majlis-e-Shoora (Parliament) continues to have effect, be void.
21. It may also be pointed out that above-quoted clause (1) of Article 234 empowers the President, on receipt of a report from the Governor of a Province or otherwise, if he is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution, he may, or if a resolution in this behalf is passed at a joint sitting shall, by Proclamation--
(a) assume to himself, or direct the Governor of the Province to assume on behalf of the President, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, anybody or authority in the Province, other than the Provincial Assembly;
(b) declare that the powers of the Provincial Assembly shall be exercisable by, or under the authority of Majlis-e-Shoora (Parliament); and
(c) make such incidental and consequential provisions as appear to the ' President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of the Constitution relating to anybody or authority in the Province.
' It may further be noticed that proviso to above paragraph (c) lays down that nothing in this Article shall authorise the President 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 in whole or in part the operation of any provisions of the Constitution relating to High Courts.
' It may also be noted that clause (2) of above Article 234 lays down that provisions of Article 105 (which provides subject to provisions to the Constitution in the performance of his functions, the Governor shall act in accordance with the advice of the Cabinet or the Chief Minister) shall not apply to the discharge by the Governor of his functions under clause (1) of Article 234. In other words, if the President himself or through the Governor of the Province assumes the power of the Provincial Government, Article 105 of the Constitution becomes inapplicable for the period during which the President's above order remains in force.
' It may be pointed out that clause (3) of the above Article lays down that a Proclamation issued under this Article shall be laid before a joint sitting and shall cease to be in force at the expiration of two months, unless before the expiration of that period, it has been approved by resolution of the joint sitting, and may by like resolution be extended for a further period not exceeding two months at a time; but no such Proclamation shall in any case remain in force for more than six months.
22. The two main features of distinction between Articles 232 and 234 seem to be:
(i) That under the former Article the Parliament acquires power to make laws for a Province, or any part thereof, with respect to any matter not enumerated in the Federal Legislative List or the Concurrent Legislative List and the Provincial Assembly remains intact with the power to legislate on the items which are within its legislative domain but to the extent of inconsistency between a law made by the Parliament by virtue of Article 232 and the Provincial Law, the latter shall be void to the extent of repugnancy, whereas by virtue of paragraph (b) of clause (1) of the latter Article (i,e, Article 234) the President has been empowered to declare that the powers of the Provincial Assembly shall be exercised by or under the authority of the Parliament. In other words, though the Provincial Assembly is not dissolved but its function can be suspended and can be taken over by the Parliament.
(ii) The second distinguishing feature is that power under Article 232 can be exercised so long as the Proclamation of Emergency holds the field for which there is no definite period prescribed in the Constitution; whereas a Proclamation under Article 234 can remain in force for a maximum period of six months and that too subject to the approval of the joint sitting of the Parliament on the expiry of every two months.
23. Having dealt with the above two Articles, I may now advert to the Articles relating to the Provincial Assemblies including as to its power. It may be observed that Article 106 provides as to the composition of the four Provincial Assemblies and qualifications of the persons entitled to contest the Election for the Membership of the above Assemblies; whereas Article 107 provides tenure of a Provincial Assembly by providing that unless sooner dissolved, it shall continue to a term of five years from the date of its first meeting and shall stand dissolved at the expiration of its term.
' It may further be observed that Article 108 lays down that after a general election, a Provincial Assembly shall, at its first meeting and to the exclusion of any other business, elect from amongst its members a Speaker and a Deputy Speaker and, so often as the office of Speaker or Deputy Speaker becomes vacant, the Assembly shall elect another member as Speaker or, as the case may be, Deputy Speaker.
' It may further be mentioned that Article 109 deals with the power of Governor to summon or to prorogue the Provincial Assembly; Article 110 deals with the right of Governor to address the Provincial Assembly; Article 111 confers on the Advocate-General the right to speak and otherwise take part in the proceedings of the Provincial Assembly or any committee thereof of which he may be named a member, but shall not by virtue of this Article be entitled to vote.
' It may further be pointed out that Article 112 deals with the subject of dissolution, namely, on the advice of the Chief Minister or on the failure of the Chief Minister to obtain vote of confidence when asked by the Governor.
' It may also be stated that Article 113 deals with the qualifications and disqualifications for membership; whereas Article 114 prohibits discussion in a Provincial Assembly with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.
' It may be highlighted that Article 115 deals with a Money Bill by providing that a Money Bill or a Bill or amendment which if enacted and brought into operation would involve expenditure from the Provincial Consolidated Fund or withdrawal from the Public Account of the Province shall not be introduced or moved in the Provincial Assembly except by or with the consent of the Provincial Government. Other clauses of the above Article 115 deal with the procedure as to the passing of a Money Bill.
' It may further be pointed out that Article 116 deals with the Governor's assent, to Bills. It may further be observed that Article 117 lays down that a Bill pending in a Provincial Assembly shall not lapse by reason of the prorogation of the Assembly but shall lapse on the dissolution of the Assembly. Article 118 deals with financial procedure; whereas Article 119 deals with custody of the Provincial Consolidated Fund and Public Account.
' It may be pointed-out that Article 120 provides for the Annual Budget Statement and it lays down that the Provincial Government shall, in respect of every financial year, cause to be laid before the Provincial Assembly a statement of the estimated receipts and expenditure of the Provincial Government for that year. It also lays down what particulars the Annual Budget statement should contain.
' Whereas Article 121 provides items which shall be expenditure charged upon the Provincial Consolidated Fund which, inter alia, include remuneration of the Governor, Judges of the High Court, Speaker and Deputy Speaker of the Provincial Assembly etc. Clause (1) of Article 122 lays down that the expenditure charged upon the Provincial Consolidated Fund may be discussed in the Provincial Assembly but shall not be submitted to its vote; whereas clause (2) thereof lays down that so much of the Annual Budget statement as relates to other expenditure shall be submitted to the Provincial Assembly in the form of demands for grants, and that 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. Articles 123, 124, 125 and 126 deal with certain other financial matters, which need not be dealt with in detail.
24. I may now refer to the Articles relating to the Executive Authority of the Province. Article 129 provides that the executive .Authority of the Province shall vest in the Governor and shall be exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution. The above Article is to be read with above-referred Article 105, which lays down that subject to the Constitution, in the performance of his functions, the Governor shall act in accordance with the advice of the Cabinet or the Chief Minister.
' It may be observed that Article 130 deals with the formation of the Cabinet of Ministers, with the Chief Minister as its Head. It will suffice to observe that under clause (2) thereof it has been provided that the Governor shall appoint from amongst the members of the Provincial Assembly a Chief Minister who, is likely to command the confidence of the majority of the members of the Provincial Assembly. Whereas clause (7) thereof lays down that a Minister who for any period of six consecutive months is not a member of the Provincial Assembly shall, at the expiration of that period, cease to be a Minister, and shall not before the dissolution of that Assembly be again appointed a Minister unless he is elected a member of that Assembly.
' It may be pointed out that Article 131 provides duties of Chief Minister in relation to Governor; whereas Article 132 deals with the appointment of the Ministers. Clause (1) thereof lays down that subject to clauses (7) and (8) of Article 130, the Governor shall appoint Provincial Ministers from amongst members of the Provincial Assembly on the advice of the Chief Minister.
' Article 136 provides for vote of no-confidence against the Chief Minister. Clause (1) thereof provides that a resolution for a vote of no-confidence moved by not less than twenty per centum of the total membership of the Provincial Assembly may be passed against the Chief Minister by the Provincial Assembly. Clause (3) thereof lays down that if the resolution referred to in clause (1) is passed by a majority of the total membership of the Provincial Assembly, the Chief Minister shall cease to hold office.
' It may be pointed out that Article 137 provides as to the scope/extent of executive authority of Province by laying down that subject to the Constitution, the executive authority of the Province shall extend to the matters with respect to which the Provincial Assembly has power to make laws.
' It may be pointed out that proviso to the above Article provides that in any matter with respect to which both Parliament and the Provincial Assembly of a Province has power to make laws, the executive authority of the Province shall be subject to, and limited by, the executive authority expressly conferred by the Constitution or by law made by the Parliament upon the Federal Government or authorities thereof.
' It may further be stated that Article 138 relates to conferment of functions on subordinate authorities by providing that on the recommendation of the Provincial Government, the Provincial Assembly may by law confer functions upon officers or authorities subordinate to the Provincial Government.
' It may be stated that Article 139 deals with the conduct of business of Provincial Government; whereas Article 140 provides for the appointment of Advocate-General of a Province.
25. I may, at this juncture, refer to some of the Rules i,e, Rules of Procedure of the Provincial Assembly of Sindh framed pursuant to the provisions of Clause (2) of Article 67 read with Article 127 of the Constitution.
' Chapter I deals with the definition of various terms. It will suffice to observe that clause (j) thereof defines "Member-in-Charge", which means that in case of a Government Bill, any Minister acting on behalf of Government and in case of Private Bill the Member, who has introduced it or any other Member authorised by him in writing to assume charge of the Bill in his absence. Whereas clause
(k) defines "Minister", which means a Provincial Minister and includes the Chief Minister. Clause (1) defines term "Motion" by providing that it means a proposal made by a Member relating to any matter which may be brought for consideration of the Assembly. It may also be observed that clause (s) defines "Speaker", which means the Speaker of the Assembly and includes the Deputy Speaker for the time being acting as Speaker under the Constitution.
26. Chapter II deals with summoning and prorogation of the Assembly and seating, oath and Roll of Members. It may be stated that sub-rule (1) of Rule 3 provides that when the Assembly is summoned by the Governor or the Speaker, the Secretary shall intimate to each Member, about the date, time and place of meeting; whereas sub-rule (2) lays down that when the Assembly is summoned or prorogued by the Speaker, the Secretary shall cause a notification to that effect to be published in the Gazette.
' Rule 6 provides that if for any reason, it is not practicable that the Speaker and Deputy Speaker preside over a sitting, the Governor may nominate from amongst the Members of the Assembly or any other person a Chairman who shall preside over such sitting.
27. It may be pointed out that Chapter III deals with the Speaker, the Deputy Speaker and Panel of Chairmen.
' Rule 7 provides that the Assembly at its first meeting after general election shall, to the exclusion of any other business, proceed to elect Speaker in the manner provided for in paragraphs (i) to (iv) contained therein.
' Rules 8 to 11 deal with the procedure of scrutiny of nomination papers, withdrawal of nomination papers, declaration of result. Rule 12 lays down that the provisions of rules 7, 8, 9, 10 and 11 of these rules shall mutatis mutandis apply to election of Deputy Speaker. Whereas Rule 13 provides that whenever the office of the Speaker or the Deputy Speaker becomes vacant, the election to such office shall be held in accordance with these rules.
' Rule 14 deals with the removal of the Speaker or the Deputy Speaker.
' Rule 15 defines the power and function of the Speaker by providing that the Speaker shall--
(i) preside at every sitting of the Assembly;
(ii) call the Assembly to order;
(iii) maintain order and decorum and have all powers necessary for the purpose;
(iv) cause the galleries to be cleared in case of disturbance or disorder; and
(v) decide all points of order.
' It may be observed that Rule 16 deals with the delegation of powers of Speaker by laying down that the Deputy Speaker, in absence of the Speaker, shall preside at a sitting and shall have the same powers and perform same functions as of the Speaker.
28. It may be stated that Chapter IV provides for the procedure of vote of confidence and of no- confidence of the Chief Minister. Sub-rule (1) of Rule 19 lays down that a member may give notice in writing to the Secretary to move a resolution seeking vote of confidence for the Chief Minister under clause (3) of Article 130 of the Constitution; whereas sub-rule (1) of Rule 26 provides that a notice may be given to the Speaker to move a resolution for the vote of no-confidence against the Chief Minister. The other sub-rules of the above two. Rules deal with the procedure.
29. It may be mentioned that Chapter V deals with the sitting and classification and arrangement of business. Rule 27 provides that there may be four Sessions of the Assembly every year as follows:--
(a) Spring Session;
(b) Summer Session;
(c) Autumn Session; and
(d) Winter Session.
' It may further be pointed out that Rule 30 provides that notwithstanding anything contained in these rules the Speaker may at any time, adjourn a sitting and call the sitting so adjourned, at time and date different from that to which it was adjourned.
' It may further be pointed out that Rule 31 divides the business of the Assembly into two classes:
(i) Government business, or
(ii) Private business.
' Explanation to above sub-para.(ii) classifies that Private Business means and includes Bills, Resolutions and the Motions given notice by a Member other than Minister. Rule 32 deals with the allocation of time for transaction of business; Rule 33 provides for arrangement of business; Rules 34 and 35 deal with the priority for introduction of private Bills. Rules 37 and 38 provide for the List of Business and for business outstanding at the end of the day.
' It may be stated that Chapter VI provides for the Governor's address.
30. It may be pointed out that Chapter VII deals with questions. Rule 40 provides that a Member may ask a question for obtaining information on a matter of public concern within the special cognizance of the Minister to whom it is addressed. Rule 41 lays down that subject to these rules, the first hour of every sitting, after recitation from Holy Qur'an and swearing in of Members, if any shall be available for the asking and answering of questions. The proviso to the above Rule provides that if a sitting is held on a day other than the working day, there shall be no question hour. Rule 42 lays down that notice of not less than fifteen days shall be given for a question to be asked in the Assembly Unless the Speaker, with the consent of the Minister concerned, allows it at shorter notice. Rules 43, 44, 45, 46, 47 and 48 deal with the procedure of the short notice questions, form of notice questions, notice of admission questions, number of questions to be put on any one day, allotment of days for questions, and written answers to questions not replied orally.
' Whereas Rule 49 prohibits raising of any question on the matters referred to in its clauses (1) to (21).
' It may be observed that Rule lays down that questions relating to Secretariat of the Assembly, may be asked by addressing a communication to the Speaker. Rule 51 provides that admissibility of a question shall be decided by the Speaker within five days of the receipt of its notice provided any question may be admitted subject to amendment in its form. Rules 52, 53 and 54 provide for List of questions, Mode of asking questions and Supplementary questions etc.
31. It may be mentioned that Chapter VIII deals with leave of absence from the sitting of the Assembly. Rule 56 lays down that if a Member remains absent, without leave of the Assembly, for forty consecutive days of its sitting, the Speaker shall bring the fact to the notice of the Assembly and thereupon any member may move that the seat of the Member who has been so absent be declared vacant.
32. It may be stated that Chapter IX deals with the privileges i,e, question of privilege, notice of question of privilege, conditions of questions of privilege, Mode of raising a question of privilege, time for question of privilege, consideration by the Assembly or reference to Committee on rules of procedure and privileges. Rules 64 to 70 deal with the submission of the report by the Committee and consideration etc. Thereof.
33. It may be stated that Chapter X provides for adjournment motions. Rule 71 lays down a motion for an adjournment of the business of the Assembly for the purpose of discussing a definite matter of recent and urgent public importance may be made with the consent of the Speaker. Whereas Rule 72 provides for method of giving notice by laying down that notice of motion under Rule 71 shall be given in writing in triplicate to the Secretary not less than one hour before the commencement of the sitting in which it is proposed to be moved, and the Secretary shall thereupon bring the notice to the knowledge of the Speaker, Minister for Law and Parliamentary Affairs and Minister concerned. Rules 73 to 79 provide for restrictions on right to make adjournment motion, restrictions on adjournment motion, time for asking leave for adjournment, procedure to be followed, time limit, limitation of time of discussion and time limit for Speeches respectively.
34. It may be mentioned that Chapter XI provides for the procedure for the legislation of Private and Government Bills including for the publication of the Bill in the Gazette, reference of Bill to Standing Committee etc. ' It may further be observed that Chapter XII deals with the procedure of laying down before the Assembly Ordinances.
35. It may be stated that Chapter XIII deals with the Resolutions. Rule 102 thereof provides that subject to these rules any Member may move a resolution relating to a matter of general public interest.
' It may further be observed that sub-rule (1) of Rule 103 provides that a Member may move resolution after giving three days' notice of his intention to do so; whereas sub-rule (2) thereof lays down that a Minister may move a resolution after giving three days' notice of his intention to do so.
Sub-rule (3) thereof envisages that the notice under sub-rule (1) and sub-rule (2) shall be accompanied by a copy of the resolution to be introduced.
' It may further be pointed out that the above right to move resolution is subject to the conditions provided for in Rule 104 which reads as follows:-- "104. The right to move a resolution shall be subject to the condition that the resolution--
(1) shall be in the form of declaration of opinion of the Assembly;
(2) shall relate to a matter which concerns Government provided that a resolution recommending to Government to approach the Federal Government in a matter which is not the concern of Government shall be admissible;
(3) shall be clearly and precisely expressed and shall raise substantially one definite issue;
(4) shall not contain arguments inference, ironical expressions or defamatory statements; nor shall it refer to the conduct or character of a person except in his official or public capacity;
(5) shall not relate to any matter which is under adjudication by a Court of law having jurisdiction in any part of Pakistan;
(6) shall not contain a reflection on the conduct of the President, Governor or a Judge of the Supreme Court or a High Court;
(7) shall not raise discussion on a matter pending before any statutory tribunal or statutory authority performing any judicial or quasi-judicial functions or any commission or Court of inquiry or a matter in respect of which any Minister raises any objection on the ground that it is detrimental to the public interest."
' It may also be pointed out that Rule 105 empowers the Speaker to disallow any resolution or part thereof, if in his opinion it does not comply with these rules or its discussion is detrimental to the public interest and the resolution or any part thereof so disallowed shall not be placed on the List of Business.
36. It may be observed that Chapter XIV provides rules relating to procedure in financial matters.
They need not be discussed in detail as by virtue of Article 115 of the Constitution the Provincial Government's consent required for financial measures.
' It may be stated that Chapter XVI contains general rules of procedure. It inter alia provides how a notice is to be served by a Member, how the notice is to be circulated amongst the Members, how decision by motion is to be made etc. It will suffice to observe that the above rules confer power only on Speaker to conduct the proceedings and to put the motion as a question for the decision of the Assembly (Rule 178). It may further be observed that Rule 189 of the rules limits and prohibits discussion on the matters specified therein, namely, a Member while speaking shall not discuss.
Any matter which is sub judice in the Court of law, reflect on the conduct of the President or Governor, make a personal charge against a Member, Minister or a person holding a public office, utter treasonable, defamatory or unparliamentarily words and make use of offensive expression or use his right of speech to obstruct business of the Assembly. It may further be stated that Rule 211 provides that the Speaker of the Assembly may suspend any of the rules. Whereas Rule 212 lays down that all matters not specifically provided for in these rules shall be regulated in such manner as the Speaker may deem fit and that any decision taken, ruling given or direction issued by the Speaker in these rules shall not be called in question in any manner or on any ground whatsoever.
' It may also be pointed out that Rule 216 envisages that except with the permission of the Speaker the Assembly Chamber shall not be used for any purpose other than the sitting of the Assembly; whereas Rule 217 provides for the procedure for amendment of the rules. It may be stated that in addition to above rules contained in Chapters I to XVIII, there are six schedules appended to the above rules providing for various matters.
37. I may state that the object of referring to the above Articles of the Constitution relating to the Provincial Assembly, the Provincial executive and the rules of the Sindh Assembly in detail is to highlight as to the importance of a Provincial Assembly in our Constitutional framework and the importance of the office of the Speaker.
The Provincial Assembly has been assigned various Constitutional functions, namely--
(i) to legislate,
(ii) to pass annual budget,
(iii) to regulate the formation and continuation of a provincial elected Government,
(iv) to act as a forum for accountability of the elected Provincial Government in power.
' It may also be pointed out that by virtue of Article 108 of the Constitution read with Rule 7 of the Rules, it is mandatory that after a general election, a Provincial Assembly shall, at its first meeting and to the exclusion of any other business, elect from amongst its members a Speaker and a Deputy Speaker and so often as the office of Speaker or Deputy Speaker becomes vacant. This has been mandated as the Speaker performs pivotal role in the functioning of the Provincial Assembly as is evident from the various rules of the Rules discussed hereinabove. The office of the Speaker is sine qua non for functioning of an Assembly.
38. I may now advert to the controversy at issue was namely, whether the second part of paragraph (c) of clause (2) of Article 232 of the Constitution, which empowers the Federal Government to make such incidental and consequential provisions as it may appear to it to be necessary or desirable for giving effect to the object of the Proclamation, including provisions for suspending, in whole or any part, the operation of any provisions of the Constitution relating to any body or authority in the Province, relates to the first part or can it operate independently from the above first part of paragraph (c) of clause (2) of Article 232 of the Constitution.
' In my view, since under the above first part of paragraph (c) of clause (2) of above Article 232, the Federal Government has been empowered to assume to itself or direct the Governor of a Province to assume on behalf of Federal Government, all or any of the functions of the Government of the Province or all or any of the powers vested in, or exercisable by, anybody or authority in the Province other than the Provincial Assembly, the incidental and consequential provisions which can be made by the Federal Government under the second part of above paragraph (c) should be relatable to the subject-matters covered by the first part of the above paragraph, namely, all the matters provided in the first part excluding the Provincial Assembly. In other words, the incidental and consequential provisions which are to be made by the Federal Government under the second part of paragraph (c) should be in respect of assumption of all or any of the functions of the Government of the Province and all or any of the powers vested in, or exercisable by, anybody or authority in the Province other than the Provincial Assembly.
' However, Mr. Ch. Muhammad Farooq learned Attorney-General, as well as Mr. Syed Sami Ahmed, learned counsel appearing for the Provincial Government urged that in the proviso to paragraph
(c) of clause (2) of Article 232 of the Constitution, it has been expressly provided that nothing in paragraph (c) shall authorise the Federal Government to assume to itself or direct a Governor of the Province to assume on its behalf any of the powers vested in, or exercisable by, a High Court or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Court and as there is no exclusion as to the suspension of the Constitutional provisions in respect of the Provincial Assembly, the Federal Government under the second part of the paragraph (c) has the power to suspend any of the Articles relating to the Provincial Assembly or any office in respect thereof. To reinforce the above submission, both have relied upon the judgment of the Indian Supreme Court in the case of S.R. Bommai and others etc. Etc. v. Union of India and others etc. Etc. AIR 1994 SC 1918.
39. It may be observed that the above case has no application to the present case inasmuch as the same relates to Article 356 of the Indian Constitution, which corresponds to Article 234 of our Constitution, namely, the power of President to issue Proclamation in case of failure of Constitutional machinery in a Province and assumption of power by the President himself or through the Governor in respect of all or any of the functions of the Government of the Province and all or any of the powers vested in, or exercisable by, anybody or authority in the Province other than the Provincial Assembly. It may be pointed out that under paragraph (b) of clause (1) of above Article 234, the President may declare that the power of the Provincial Assembly shall be exercisable by the Parliament or under its authority. In contrast to the above, clause (4) of Article 232 of the Constitution provides that nothing in this Article shall restrict the power of Provincial Assembly to make any law, which under the Constitution it has power to make, but if any provision of a Provincial law is repugnant to any provision of an Act of the Parliament which under the above Article it has power to make, the Act of the Parliament whether passed before or after the Provincial law, shall prevail and the Provincial law to the extent of repugnancy, but so long only as the Act of the Parliament continues to have effect, be void. The power of a Provincial Assembly is denuded to the above extent by virtue of above clause (4) of Article 232; whereas under paragraph (b) of clause (1) of Article 234 on making of a declaration by the President, the Parliament takes over the power of the Provincial Assembly which it can exercise by itself or it may allow the Provincial Assembly to exercise under its authority. In view of the above paragraph (b) of clause (1) of Article 234 the power of the Provincial Assembly stands suspended. The word "suspension" has been defined, inter alia, in the Black's Law Dictionary, 5th Edn.; Jowitt's Dictionary of English Law, 2nd Edn.; Stroud's Judicial Dictionary, 5th Edn.; Wharton's Law Lexicon, 14th Edn.; Words and Phrases, Vol. 40A and the Oxford English Dictionary, Vol. X, as inter alia, temporary stop, a temporary delay, interruption, or cessation, a temporary cutting off or debarring one, as from the privileges of one's profession, temporary withdrawal or cessation from employment as distinguished from permanent severance accomplished by removal. Reference may also be made to the case of Pak Army Furnishing Stores v. Ali Akbar Rizvi PLD 1985 Kar. 201 in which Saleem Akhtar, J. (as he then was) while construing the word "suspension" used in Regulation 2 of the Karachi Building Control Regulations, 1984, observed that the meaning and connotation of the above word "suspension" do not connote meaning of cancellation or revocation of any permission or licence, it only temporarily deprives of rights or privileges under permission. It may again be pointed out that under the above paragraph (b) of clause (1) of Article 234 of the Constitution, the Provincial Assembly is temporarily deprived of its power to legislate even on the matters which might be within its exclusive domain under the Constitution. The above judgment of the Indian Supreme Court may be invoked in aid for construing Article 234 of our Constitution and not for interpreting Article 232 of the Constitution.
40. Mr. Syed Sami Ahmed also advanced somewhat different arguments from what was urged by the learned Attorney General inasmuch as he contended that the effect of the Proclamation under clause (1) of Article 232 read with the impugned order dated 10-11-1998 passed by the Federal Government under paragraph (c) of clause (2) of Article 232, is that the Provincial Assembly becomes non-functional. The above contention runs counter to the language used in clause (4) of Article 234 of the Constitution already referred to hereinabove which commences with the words that "nothing in this Article shall restrict the power' of the Provincial Assembly to make any law which, under the Constitution, it has power to make", but this is subject to the rider that in case of inconsistency between a provision of an Act passed by the Provincial Assembly and the Parliament in exercise of the power contained under the above clause, the provision of the Provincial Act shall be void so long as the Act of the Parliament holds the field. It would not be out of context at this stage to point out that the power of a Provincial Assembly to make law is stemmed not under clause (4) of Article 232 of the Constitution, but by virtue of Articles 141 and 142 of the Constitution.
The former Article provides that subject to the Constitution the Parliament may make laws (including laws having extraterritorial operation) for the whole or for any part of Pakistan and a Provincial Assembly may make laws for the Province or for any part thereof. It may further be observed that the latter Article (Article 142) demarcates the legislative competency of the Parliament and a Provincial Assembly by providing Federal Legislative List, Concurrent Legislative List and any matter not enumerated in either Federal Legislative List or the Concurrent Legislative List. It may further be pointed out that under Article 143 of the Constitution as a general rule of interpretation, it has been provided that if any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of the Parliament which the Parliament is competent to enact or to any provision of any existing law with respect to any of the matter enumerated in the Concurrent Legislative List, then the Act of Parliament whether passed before or after the Act of the Provincial Assembly or as the case may be, the existing law, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void. The effect of issuance of a Proclamation under clause (1) of Article 232 by virtue of paragraph (a) of clause (2) thereof is that while a Proclamation of Emergency is in force, the Parliament shall have the powers to make laws for a Province or for any part thereof, with respect to any matter not enumerated in the Federal Legislative List or in the Concurrent Legislative List and the law made under the exercise of the above power shall prevail over the Provincial law to the extent of repugnancy, so long as the Act of Parliament remains in force and the Provincial Law to that extent be void, inter alia, by virtue of the aforesaid clause (4) of Article 232. To put it differently, the Proclamation under clause (1) of Article 232 does not suspend a Provincial Legislature, it only suspends the distribution of Legislative powers between the Federation and the Province so that the Parliament may meet the emergency by legislating on any subject which may be necessary as if the Constitution was of unitary form as was held by a Division Bench of the Lahore High Court, comprising of Sardar Muhammad Iqbal, C.J.
And Dr. Nasim Hasan Shah, J. (as they then were) in the case of Malik Muhammad Suleman, M.N.A. v. Islamic Republic of Pakistan PLD 1976 Lahore 1250.
' It may be observed that in a Parliamentary form of Government the Legislature not only legislates but it is also instrumental for the election/appointment of the Prime Minister or the Chief Minister and the Members of the Cabinet, as the case may be, inasmuch as only the member commanding the majority of the Members of the Parliament/Provincial Assembly can be elected/appointed as the Prime Minister or the Chief Minister, who should also be a Member of the Parliament/Provincial Assembly concerned and so also the Members of his Cabinet, in order to retain the Minister ship.
The Prime Minister or the Chief Minister and Members of his Cabinet can be removed by the Parliament/Provincial Assembly by bringing vote of no-confidence. Besides the above function the Prime Minister/Chief Minister and the Members of his Cabinet are accountable to the Parliament/Provincial Assembly. I have already referred and discussed hereinabove the relevant Articles relating to the election of the Chief Minister, appointment of the Members of his Cabinet etc. The effect of the above impugned order dated 30-10-1998 passed under paragraph (c) of clause (2) of Article 232 is that the above mechanism for the election/appointment of the Chief Minister and the members of his Cabinet and their accountability to the Provincial Assembly stands suspended till the above Proclamation under clause (1) of Article 232 of the Constitution holds the field. It is, therefore, wrong to urge that the Provincial Assembly of Sindh had become non-functional, as urged by Mr. Syed Sami Ahmed. It can function as a legislative body within the parameter provided under the Constitution read with the Rules. It is true that the rules in which references have been made to the Government or to the Minister, which have been highlighted by me hereinabove shall not be applicable so long as the above Proclamation under clause (1) of Article 232 and the order dated 30-10-1998 under paragraph (c) of clause (2) of Article 232 of the Constitution remains in force. - ' It may be highlighted that the Provincial Assembly of Sindh, under the Constitutional mandate, is to hold at least three Sessions every year and to function at least for seventy working days each year by virtue of clause (g) of Article 127 read with clause (2) of Article 54 of the Constitution.
Additionally, there should not be lapse of more than 120 days between the two Sessions. The above provisions of the Constitution are not affected in any way either by the Proclamation of Emergency dated 28-5-1998 or by the above order dated 30-10-1998 issued under paragraph (c) of clause (2) of Article 232 of the Constitution.
41. Mr. Syed Sami Ahmed has also relied upon my following observations, contained in para. 59 of my opinion in the case of Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738):-- "It was also urged by Mr. Sharifuddin Pirzada that Emergency Provisions necessitate taking of immediate action by the President, and, therefore, he is the sole judge to decide the question, whether a Proclamation is to be issued or not. In support of his submission he has referred to the case of Bhagat Singh v. Emperor (Viscount Dunedin) (AIR 1931 PC 111) and the case of Emperor v.
Benoari Lal (AIR 1945 PC 48).
The above reports do support Mr. Sharifuddin Pirzada's above submission. However, in this regard, it may be pertinent to point out that though Article 234 of the Constitution is contained in Part X of the Constitution, which relates to the Emergency provisions, but it cannot be equated with Article 232 which can be invoked when the President is satisfied that a grave emergency exists in which the security of the country or part thereof is threatened by war or external disturbances beyond the power of the Provincial Government to control. The invocation of the above Article even entails suspension of the Fundamental Rights under Article 233. Whereas, in order to press into service Article 234, it is not necessary that there should exist a grave emergency of the nature referred to in Article 232 but the same can be invoked in aid if there is temporary Constitutional deadlock. The above two Privy Council cases relate to emergency action during the war period and, therefore, are distinguishable."
' He has also referred to the two judgments of the Privy Council referred to in the above-quoted para.
59. In this behalf, it may be pointed out that the distinction between Articles 232 and 234 of the Constitution as to their effect have been highlighted in the above-quoted para. 59 of my above opinion. The same has no relevance to the controversy at issue. In this regard, it may be pertinent to mention that in para. 40 of my opinion in the case of Farooq Ahmed Khan Leghari (supra) relating to the imposition of the Emergency under Article 232(1) of the Constitution, I have pointed out that the above Privy Council cases cannot provide any guideline for construing the Constitutional provisions in presence of the Fundamental Rights as the approach of the Privy Council, inter alia, in the above two reports was somewhat different inter alia for the reason that there were no R imental Rights then available in India. The relevant portion of above para. 40 reads as follows:- "'It will not be out of context if at this juncture I may point out that prior to the Independence of India the proclamation of emergency was regulated inter alia under section 72 of the India Act, 1919, and then under section 102 of the Government of India Act, 1935. In some of the cited cases reliance has been placed on the Privy Council judgments. The approach of the Privy Council was somewhat different inter alia for the reasons that there were no Fundamental Rights then available in India. In this regard, reference may be made to the case of Bhagat Singh v. Emperor (AIR 1931 PC 111) and the case of Emperor v. Benori Lal Sharma and others (AIR 1945 PC 48)."
42. Mr.Ch. Muhammad Farooq, learned Attorney-General and Mr.Syed Sami Ahmed have also referred to the case of Niaz Ahmed v. Province of Sindh and others (PLD 1977 Karachi 604) in which a Full Bench of the High Court of Sindh while dealing with the invocation of Article 245 of the Constitution, calling Armed Forces in aid of Civil power referred to clause (2) of Article 236 which lays down that the validity of any Proclamation issued or order made under Part X of the Constitution, is not open to any question in any Court. This Court has already held in the case of Pir Sabir Shah (supra) that clause (2) of Article 236 will not cover a proclamation which is without jurisdiction, coram non judice or mala fide and the superior Courts have jurisdiction to examine a Proclamation from the above three jurisdictional legal aspects. In this regard reference may be made to the relevant portion of my opinion in the above case of Pir Sabir Shah:-- "The above clause is more wide in its nature as an ouster clause as it begins with the words 'Notwithstanding anything contained in clause (1)' and ends by employing the words 'on any ground whatsoever'. In spite of the fact that the above clause was so widely framed, the majority view of 10 to 1 in the above case held that this Court had jurisdiction to proceed with the matter and to examine the vires of the impugned action. It seems that by now in Pakistan it is well-settled principle of law that notwithstanding an ouster clause in the Constitution or in any other statute, the Courts have jurisdiction in the above three categories of cases.
' In the present case, the proclamation has been issued under Article 234, it has not been protected by any Article like Articles 281 and 270-A, which were the subject-matter of the above judgments in the cases of Zia-ur-Rehman, Saeed Ahmad Khan and Malik Ghulam Mustafa Khar (supra) but the protection is sought under clause (2) of Article 236 of the Constitution, which is of general nature purporting to protect all proclamations issued under Part X of the Constitution. I am, therefore, of the view that clause (2) of Article 236 will not cover a proclamation which is without jurisdiction coram non judice or mala fide and the superior Courts will have jurisdiction to examine a proclamation from the above three jurisdictional legal aspects."
' The above view has been reiterated by this Court in the recent judgment in the case of Farooq Ahmed Khan Leghari (supra).
43. I may now refer to the suspension of clause (3) of Article 53 and clause (3) of Article 54 read with Article 127 and their application to the Province of Sindh in so far they relate to the power and functions of Speaker and the Deputy Speaker by the impugned order dated 10-11-1998.
' In my view the Speaker and the Deputy Speaker are integral part of the Provincial Assembly of Sindh. They have been assigned functions and powers under the Constitution as well as under the Rules highlighted hereinabove by me. I may re-capitulate some of the relevant provisions of the Constitution and the Rules to demonstrate that a Provincial Assembly is incomplete without Speaker and Deputy Speaker.
There exist specific, categorical and mandatory provisions in the Constitution for the election of Speaker/Deputy Speaker. This is the very first responsibility cast upon a Provincial Assembly, which it is bound to discharge in its very "first meeting and to the exclusion of any other business", and therefore, so often as the office becomes vacant [Article 108, Rules 7, 12 and 13]. The Constitution and the Rules envisage the Office of Speaker to remain always filled/occupied. This is so because of the pre-eminent position of the Speaker and the vital role assigned to him in the Legislature.
Without him the Legislature cannot function, muchless conduct any business/legislation. The Speaker performs major functions such as to ensure that the House is properly constituted, is duly in order and proper decorum is maintained. He is the principal spokesman of the House, represents it in dealings with other authorities/institutions and is the custodian of the House privileges/immunities. He permits the bills/resolutions to be moved in the House (Rules 33 and 37), announces adjournments [Rule 30], decides whether a certain bill is a money bill [Art.115(4)1, authenticates money bills (Art.115(5)) and other bills (Rule 99) to the Governor for signature. After receiving Governor's consent, the Speaker causes the Acts to be published in the Gazette (Rule 100). He allots/apportions to members time for debate (Rule 118), grants permission to members to take the floor (Rule 187), can stop the speech if it is repetitive/irrelevant (Rule 190), decides points of order (Rule 196), suspends the session when the quorum is incomplete (Rule 193) orders the expulsion of unruly members, can also suspend a member, may also adjourn the House if disorder persists (Rule 197). He can interpret the Rules (Rule 150), his ruling cannot be called in question (Rule 212) and in appropriate situations, may also suspend Rules (Rule 211). He is the final authority in so far as the conduct of business in the House is concerned. The Courts cannot inquire into the validity/regularity of proceedings in the House (Article 69 read with Article 127).
44. However, Mr. Ch. Muhammad Farooq and Mr. Syed Sami Ahmed have referred to Rule 6 of Chapter II of the Rules, already referred to hereinabove, which provides that if for any reason it is not practicable for the Speaker and the Deputy Speaker to preside over a sitting, the Governor may nominate from amongst the Members of the Assembly or any other person as a Chairman, who shall preside over such sitting. The language used in the above Rule 6 indicates that it will not cover the case where the Speaker or the Deputy Speaker is prevented from discharging his functions/their functions by an illegal order. It caters for the situation when for any reason the Speaker or Deputy Speaker is not available.
45. In the instant case two requisitions for summoning the Provincial Assembly of Sindh were submitted which, inter alia, contained items for discussion which could not have been discussed in view of the Notification dated 30-10-1998 issued. Under paragraph (c) of clause (2) of Article 232 by the Federal Government assuming through the Governor all functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, any body or authority in the Province other than the Provincial Assembly and because of the relevant rules wherein participation by a Minister or someone on behalf of the Provincial Government is necessary, inter alia, highlighted hereinabove. Probably the Federal Government, in order to avert any ugly situation which might have occasioned, had issued the impugned order dated 10-11-1998 suspending the functions of the Speaker and the Deputy Speaker under clause (3) of Article 53 and clause (3) of Article 54 of the Constitution without realising its legal implications. As already pointed out hereinabove that no such power is vested in the Federal Government by virtue of paragraph (c) of *clause (2) of Article 232 or under any other provision of the Constitution nor the Federal Government has power to prevent the filling of the vacancy of the post of Speaker in view of the Constitutional mandate under Article 108 of the Constitution, highlighted hereinabove more than once.
46. It would not be out of context to mention that under Article 109 of the Constitution the Governor alone has the power to summon or to prorogue the Provincial Assembly from time to time but no such power is vested in the Speaker under the Constitution. The Speaker can summon the Provincial Assembly on a requisition signed by not less than 1/4th of the total membership of the Assembly by virtue of clause (3) of Article 54 read with Article 127 of the Constitution. The Speaker has also power under Rule 30 to call an adjourned sitting. It was urged by the learned Attorney General as well as by Mr. Syed Sami Ahmed that summoning of the Session by the Speaker or the Deputy Speaker acting as the Speaker for the purpose of holding election of the Speaker is not warranted by clause (4) of Article 232 of the Constitution. I have already dealt with as to the effect of the above provision of the Constitution as to the legislative power of a Provincial Assembly hereinabove. It has nothing to do . With the filling in vacancy of the Speaker under Article 108 of the Constitution.
47. Before I conclude above discussion, I, may observe that in spite of the expiry of more than fifty years since the achievement of independence, we have not politically matured enough. I may state that so king as the Proclamation of Emergency dated 28-5-1998 and the order, dated 30-10- 1998 passed under paragraph (c) of clause (2) of Article 232 remain in force the Provincial Government and the Provincial Assembly will have to to-exist and to function in terms of the above provisions of the. Constitution already dilated upon hereinabove. The Members of the Assembly will have to act/function within the parameters/constraints as provided by the Constitution as well as by the Rules which have already been highlighted hereinabove. The forum of the Provincial Assembly cannot be used to dislodge the Provincial Government which is not representative but is acting under the mandate of paragraph (c) of clause (2) of Article 232 of the Constitution. The right to speech in the Provincial Assembly is subject to reasonable restriction, inter alia contained in Rule 159 of Chapter XVI of the Rules. With the above obseniations I conclude my above opinion in support of above-quoted short order.
(Sd.)
AJMAL MIAN, C J ' I have already recorded my opinion separately.
(Sd.)
Saiduzzaman Siddiqui, J ' I have already agreed with the opinion recorded by HJ(1)
(Sd.)
Irshad Hasan Khan, J ' I have already signed the judgment recorded by Mr. Justice Saiduzzaman Siddiqui on 18-1-1999.
(Sd.)
Raja Afrasiab Khan, J 26-1-1999.
(Sd.)
Muhammad Bashir Jehangiri, J (Sd.)
Nasir Aslam Zahid, J ' I agree with the above finding as regards competency of Provincial Assembly of Sindh to perform legislative functions. However, for other aspects I have recorded separate note while concurring with opinion rendered by Justice Saiduzzaman Siddiqui.
(Sd.)
Munawar Ahmad Mirza, J ' SAIDUZZAMAN SIDDIQUI, J.--The abovementioned two Constitutional petitions filed directly before this Court under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as "the Constitution") were disposed of by the following short order announced on 12- 1-1999:-- "For the reasons to be recorded later, the above Constitution Petitions are disposed of as under:-- ' Since under the first part of sub-clause (c) of clause (2) of Article 232 of the Constitution, the Federal Government can assume the powers vested in or exercisable by anybody or authority in the Province other than the Provincial Assembly, the incidental and consequential provisions to be made referred to in the second part thereof are relatable to the Order of the Federal Government, dated 30-10-1998. In consequence, till the above Order holds the field, the power of the Provincial Assembly of Sindh shall not be restricted to make any law which under the Constitution and the existing Rules of the Procedure of the Provincial Assembly of Sindh, it has power to make as contemplated by clause (4) of Article 232 of the Constitution. Resultantly, the Order dated 10-11- 1998 to the extent indicated above, is declared to be without lawful authority and of no legal effect."
2. These are the reasons for the above short order. The first mentioned petition has been filed by the Deputy Speaker of Sindh Assembly seeking the following reliefs:-- A. That the impugned notification, dated 10th November, 1998 (Annexure C) be declared as Ultra vires of Constitution and, therefore, void and of no legal effect. B. That the respondents be directed not to obstruct the holding of meeting or sessions of the Provincial Assembly.
C. That the respondent be directed not to use Police Force or any other agency or body to refuse the Assembly Members from entering the Assembly Building, and holding meetings in accordance with Law and Constitution.
D. That Special Cost of the petition be awarded to the Petitioners.
E. That any other relief deemed fit and necessary in the circumstances of the case be granted to the petitioner."
' In the second petition, the petitioner, who is the former Speaker of Sindh Assembly, has claimed the following declaration/reliefs:- "It is, therefore, respectfully and humbly prayed that this Honourable Court may be pleased to grant the following reliefs:--
(a) To declare that the impugned orders, dated 30th October, 1998 and order dated 10-11-1998 are mala fide, illegal, capricious perverse in excess of authority, ultra vires of the Constitutional provisions and without lawful authority and of no legal effect and be set aside by this Honourable Court;
(b) To declare that in the present circumstances the continuation of emergency in the country is no more Constitutionally necessitated, and therefore, it is liable to be revoked;
(c) To declare that the subsequent Notification No,F.8-1/98, Min-1, Islamabad, the 12th November, 1998 and the Notification appearing in the daily Muslim Newspaper dated 13-11-1998 to the effect Islamabad, November, 12: "In exercise of the powers vesting in it under clause (c) of Article 232(2)(c) of the Constitution of Islamic Republic of Pakistan, Federal Government has made and issued the following further order to Governor of Sindh; ' Notwithstanding anything contained in any Law, Rules, Resolution or legal instrument postings and transfer against the posts specified below shall require prior approval of the Federal Government in the Establishment Division: -- ' All posts in BS-20/equivalent and above under the Sindh Government organizations, autonomous bodies and establishment etc.; and (b) All posts of Deputy Commissioners and District Superintendents of Police in Sindh; ' This order shall remain valid till such time this Division's Order of even number, dated 30th October, 1998, remains in force, according to a Notification issued by the Cabinet Division here today are mala fide, ultra vires of Article 232(2)(c) of the Constitution of Islamic Republic of Pakistan, 1973, capricious, perverse, arbitrary, in excess of authority, illegal, unconstitutional, without lawful authority and of no legal effect;
(d) To direct the respondent No,1 to withdraw and revoke the orders, dated 30-10-1998 imposition of Governor's rule contained in Order No, dated 10-11-1998 suspending the operation of Articles 53(3), 54(3) and Article 127 of the Constitution of the Islamic Republic of Pakistan and further direct the respondent No,1 for the withdrawal and revocation of the said Notification forthwith;
(e) To direct the respondent No,1 and the respondent No, Governor of Sindh to refrain from assuming on behalf of the respondents Nos.1 and 2 or any of the functions of the Government of Province of Sindh, all any of the powers vested in or exercisable by, anybody or authority in the Province, and further refrain from interfering with the business of the Provincial Government or the Provincial Assembly, the Speaker, Deputy Speaker and the member of the Provincial Assembly of Sindh; ' Any other relief which this Hon'ble Court may deem fit and proper, may be granted in the light of the facts and circumstances and the legal implications in the interest of justice."
' S. The petitioner in Constitutional Petition No,30 of 1998, who is the Deputy Speaker of Sindh Assembly, has challenged only the order of Federal Government issued under Article 232(2)(c) of the Constitution on 10-11-1998. However, the petitioner in Constitutional Petition No,31 of 1998, who is the former Speaker of Sindh Assembly, besides challenging the above order of Federal Government, dated 10-11-1998, has also questioned the validity of the order of Federal Government dated 30-10-1998 issued under Article 232(2)(c) of the Constitution as well as continuation of the proclamation of emergency issued by the President of Pakistan under Article 232(1) of the Constitution, on 28-5-1998.
4. I do not propose to examine here the question relating to the continuation of emergency declared by the President on 28-5-1998 as the proclamation of emergency issued by the President under Article 232(1) of the Constitution on 28-5-1998 was upheld by this Court in the case of Farooq Ahmad Khan Leghari v. Federation of Pakistan 1998 SCMR 1616. No doubt while upholding the promulgation of emergency in Farooq Ahmed Khan Leghari's case (supra), we did observe that this Court has the jurisdiction to review/re-examine the continuation of emergency at any stage, if the circumstances so warrant, but for that the petitioner must file appropriate proceedings duly supported by material which would justify review/reexamination of the question relating to the continuation of emergency. With these observations, the prayer in Constitutional Petition No,31 of 1998 relating to review/re-examination of continuation of emergency proclaimed under Article 232(1) of the Constitution on 28-5-1998 is declined.
5. The petitioner in Constitutional Petition No,31 of 1998 has questioned the validity of the following order issued by the Federal Government under Article 232(2)(c) of the Constitution on 30-10-1998:- "No,8-1/98-Min.1.--The following Order is hereby published for general information:--
' Whereas a Proclamation of Emergency issued under Article 232 of the Constitution is in force; ' Now, therefore, in exercise of the powers conferred by paragraph (c) of clause (2) of Article 232 of the Constitution, the Federal Government is pleased--
(a) to direct the Governor of the Province of Sindh to assume on behalf of the Federal Government all the functions and powers of the Government of that Province and all the powers vested in, or exercisable by, all bodies or authorities in the Province other than the Provincial Assembly: ' Provided that the Governor may allow any or all bodies or authorities to function or continue to function subject to his control and superintendence;
(b) to make the following incidental and consequential provisions which appear to the Federal Government to be necessary for giving effect to the objects of the Proclamation, namely:--
(i) in the exercise of the functions which the Governor has been directed to assume, he shall act forthwith to. Restore peace throughout the Province, to take strict action against criminal elements irrespective of their political affiliations, to ensure that the random or motivated killing of innocent citizens shall cease, to take effective steps for the arrest and apprehension of terrorists, to suppress sectarian killings, to combat acts of subversion, whether external or internal, to eliminate internal disturbances, to protect vital national institutions against external and internal threats and dangers, to restore business confidence, and to create a peaceful environment in which ordinary citizens can conduct their day to day affairs in accordance with their Constitutional rights and entitlement within the Province:
(ii) the operation of the following provisions of the Constitution shall stand suspended in relation to the Province of Sindh, namely:-- ' Articles 130 to 136:
(iii) any reference in the Constitution to the Provincial Government or Chief Minister shall, in relation to the Province of Sindh, be construed as a reference to the Governor; and
(iv) the Chief Minister and, provincial Ministers of the Province of Sindh shall forthwith cease to hold office during the period this Order remains in force. A.W.Kazi, Cabinet Secretary."
6. Since the emergency proclaimed by the President under Article 232(1) of the Constitution is in force the Federal Government under Article 232(2)(c) is empowered to assume to itself or direct the Governor of a Province to assume on behalf of the Federal Government all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, anybody or authority in the Province other than the Provincial Assembly, and make such incidental and consequential provisions as appear to the Federal Government to be necessary or desirable for giving effect to the objects of the proclamation, including provisions for suspending, in whole or in part, the operation of any provision of the Constitution relating to anybody or authority in the Province. Examined in the light of above powers available to the Federal Government under Article 232(2)(c) of the Constitution, the order issued by the Federal Government on 30-10-1998 directing, (a) the Governor of Sindh to assume on behalf of Federal Government all the functions of Government of Sindh and all powers vested in, or exercisable by all bodies or authorities in the Province other than the Provincial Assembly, (b) suspending the provisions contained in Articles 130 to 136 of the Constitution relating to Provincial Cabinet, duties of Chief Minister in relation to Governor, Provincial Ministers and vote of no-confidence against Chief Minister; (c) providing that any reference in the Constitution to the Provincial Government or the Chief Minister, shall, in relation to the Province of Sindh, be construed as a reference to Governor, and (d) that the Chief Minister and the Provincial Ministers of Sindh shall forthwith cease to hold office during the period the order remains in force, is not open to any exception, I am, therefore, inclined to hold that the order, dated 30-10-1998 issued by the Federal Government under Article 232(2)(c) (ibid) was competently passed and did not suffer from any defect of jurisdictional character.
7. This brings me to the 2nd order of the Federal Government, issued under Article 232(2)(c) of the Constitution on 10-11-1998, which reads as follows:-- "GOVERNMENT OF PAKISTAN CABINET SECRETARIAT (CABINET DIVISION)
' Islamabad, the 10th November, 1998 ' No,8.1/95-Min, 1.--The following order is hereby published for general information:--
' In exercise of the powers conferred by paragraph (c) of clause (2) of Article 232 of the Constitution of the Islamic Republic of Pakistan the Federal Government is pleased to make the following amendment in its Order, dated 30th October, 1998, namely.-- 'In the aforesaid Order in paragraph (b) in clause (ii) for the word 'Articles' the words, figures and brackets 'clause (3) of Article 53 and clause (3) of Article 54 read with Article 127 in their application to the Province of Sindh in so far as they relate to the powers and functions of the Speaker and Deputy Speaker and Articles' shall be substituted.
(Sd.)
A.W.Kazi, Cabinet Secretary."
8. The contention of the learned counsel for the petitioners is, that by suspending the operation of Articles 53(3) and 54(3) of the Constitution, the Federal Government has attempted to obstruct the functioning of Provincial Assembly which is not warranted by the Constitution. Mr.Mujeeb Pirzada, the learned counsel for the petitioner in Constitutional Petition No,30 of 1998 has advanced the following contentions:-
(i) That the Federal Government has acted unconstitutionally in suspending the provisions of Articles 53(3) and 54(3) of the Constitution;
(ii) That Article 232(2)(c) prohibits the Federal Government or the Governor on its behalf to assume the function and powers of Assembly. Therefore, the suspension of the provisions of Articles 53(3) and 54(3) of the Constitution is an attempt by the Federal Government to do a thing which cannot be done directly through indirect means;
(iii) That suspension of Articles 53(3) and 54(3) and physical occupation of the building of Provincial Assembly has frustrated the election of Speaker of the Assembly as mandated by Article 108 of the Constitution which is a gross violation of the Constitution;
(iv) That by suspending Articles 53(3) and 54(3) (ibid), the Federal Government in effect suspended Articles 55, 63 to 67, 69, 77, 87 and 88 which are mentioned in article 127 of the Constitution;
(v) That under Article 232(2)(c), the Federal Government is empowered only to suspend those Articles of the Constitution which relate to the functioning of Provincial Government and other bodies and authorities in the Province and not to Provincial Assembly;
(vi) That the Federal Government under Article 232(2)(c) has no authority to suspend Articles 4, 9 and 239(4) of the Constitution or any other Article contained in Part II, Chapter I of the Constitution;
(vii) That the scope of Articles 232 and 234 being different, no guidance can be sought for interpreting the provisions of Article 232 from the language used in Article 234 of the Constitution; (viii)That calling of the requisition meeting by the Deputy Speaker for election of Speaker or to discuss other matters, is not destructive of the object of the order issued by the Federal Government under Article 232(2)(c) of the Constitution on 30-10-1998, and
(ix) That under the Constitution, the Assembly has to function at least for 70 days in a year and if it is not allowed to function, the Constitutional mandate will be violated.
9. The learned counsel for the petitioners in Constitutional Petition No,31 of 1998 while supplementing the arguments of Mr. Mujeeb Pirzada, further contended that the action of the Federal Government is mala fide and that in any case, the legislative function of Provincial Assembly cannot be obstructed in view of the provisions of Article 232(4) of the Constitution.
10. The learned Attorney-General on the other hand, contended that the object of summoning the requisitioned meeting of the Sindh Assembly is to pass a resolution condemning the imposition of Governor's rule in the Province and' to raise such issues at the floor of Assembly which may bring the existing Provincial administration in conflict with the Provincial Assembly. In support of his contention, the learned Attorney-General referred to the requisition submitted by some 28 members of the Assembly for calling the meeting of the Assembly and the press reports published in almost all the leading dailies of Pakistan in this behalf. The learned Attorney-General, accordingly, contended that suspension of the provisions of Articles 53(3) and 54(3) of the Constitution was not only legally justified but was necessary to achieve the objects of the imposition of the Governor's rule in the Sindh Province. The learned Attorney General argued that for proper functioning of parliamentary system, the existence of Chief Minister and Provincial Cabinet is necessary, which ceased to exist under the order of Federal Government, dated 30-10- 1998 and, therefore, the functioning of Provincial Assembly in the absence of the Provincial Cabinet and the Chief Minister is not possible. The learned Attorney-General further contended that the power of Federal Government to make such incidental and consequential provisions which may be found desirable and necessary to give effect to the objects of proclamation is inclusive of the power of the Federal ,Government to suspend in whole or in part, the operation of any provision of the Constitution, relating to the Provincial *Assembly as well. The learned Attorney-General argued that unlike the provision, relating to the functioning of High Court which cannot be suspended as provided in the proviso to Article 232(2)(c), no such impediment exists in relation to the provisions of the Constitution relating to the functioning of Provincial Assembly. The learned Attorney-General, in support of his contention, relied on the following observations by the Indian Supreme Court in S.R.
Bommai v. Union of India AIR 1994 SC 1918:-- "71. The further equally important question that arises in this context is . Whether the President when he issues Proclamation under Article 356(1), would be justified in removing the Government in power or dissolving the Legislative Assembly and, thus, in exercising all the powers mentioned in sub-clauses (a), (b) and (c) of clause (1) of Article 356 whatever the nature of the situation or the degree of the failure of the Constitutional machinery. A strong contention was raised that situations of the failure of the Constitutional machinery may be varied in nature and extent, and hence measures to remedy the situation may differ both in kind and degree. It would be a disproportionate and unreasonable exercise of power if the removal of Government or dissolution of the Assembly is ordered when what the situation required, was for example, only assumption of some functions or powers of the Government of the State or of anybody or authority in the State under Article 356(1)(a). The excessive use of power also amounts to illegal, irrational and mala fide exercise of power. Hence, it is urged that the doctrine of proportionality is relevant in this context and has to be applied in such circumstances. To appreciate the discussion on the point, it is necessary to realize that the removal of Government and the dissolution of the Assembly are effected by the President, if he exercises powers of the Government under Articles 164(1) and 174(2)
(b) respectively under sub-clause (a) of Article 356(1), though that is neither necessary nor obligatory while issuing the Proclamation. In other words, the removal of the Ministry or the dissolution of the Legislative Assembly is not an automatic consequence of the issuance of the Proclamation. The exercise of the Dowers under sub-clauses (a), (b) and (c) of Article 356(1) may also co-exist with a mere suspension of the Political Executive and the Legislature of the State. Sub- clause (c) of Article 356(1) makes it clear. It speaks of incidental and consequential provision to give effect to the objects of the Proclamation including suspension in whole or part of the operation of any provision of the Constitution relating to anybody or authority in the State. It has to be noted that unlike sub-clause (a), it does. Not exclude the Legislature of the State. Sub-clause (b) only speaks of exercise of the powers of the Legislature of the State by or under the authority of the Parliament. What is further, the assumption of only some of the functions of the Government and the powers of the Governor or of anybody or authority in the State other than the Legislature of the State under sub-clause (a), is also conceivable with the retention of the other functions and powers with the Government of the State and the Governor or anybody or Authority in the State.
The language of sub-clause (a) is very clear on the subject. It must be remembered in this connection that where there is a bicameral Legislature, the Upper House, i,e,, the Legislative Council cannot be dissolved. Yet under sub-clause (b) of Article 356(1) its powers are exercisable by or under the authority of Parliament. The word used there is 'Legislature' and not 'Legislative Assembly'.
Legislature includes both the Lower House and the Upper House, i,e,, the Legislative Assembly and the Legislative Council. It has also to be noted that when the powers of the Legislature of the State are declared to be exercisable by or under the authority of the Parliament under Article 356(1)(b), it is competent for Parliament under Article 357, to confer on the President the power of such Legislature to make laws and to authorise the President to delegate the powers so conferred, to any other authority to be specified by him. The authority so chosen may be the Union or officers and authorities thereof. Legally, therefore, it is permissible under Article 356(1), firstly, only to suspend the political executive or anybody or authority in the State and also the Legislature of the State and not to remove or dissolve them.' Secondly, it is also permissible for the President to assume only some of the functions of the political executive or of anybody or authority of the State other than the Legislature while neither suspending nor removing them. The fact that some of these exercises have not been resorted to in practice so far, does not militate against the legal position which emerges from the clear language of Article 356(1). In this connection, we may refer to what Dr. Ambedkar had to say on the subject in the Constituent Assembly. The relevant extract from his speech is reproduced in paragraph 21 above. Hence it is possible for the President to use only some of the requisite powers vested in him under Article 356(1) to meet the situation in question. He does not have to use all the powers to meet all the slnations whatever the kind and degree of the failure of the Constitutional machinery in the State. To that extent, the contention is indeed valid. However, whether in a particular situation the extent of powers used is proper and justifiable is a question which would remain debatable and beyond judicially discoverable and manageable standards unless the exercise of the excessive power is so palpably irrational or mala fide as to invite judicial intervention. In fact, once the issuance of the Proclamation is held valid, the scrutiny of the kind and degree of power used under the Proclamation, falls in a narrower compass.
There is every risk and fear of the Court undertaking upon itself the task of evaluating with fine scale sand through its own lenses the comparative merits of one rather than the other measure.
The Court will thus travel unwittingly into the political arena and subject itself more readily to the charges of encroaching upon policy-making. The 'political thicket' objection sticks mere easily in such circumstances. Although, therefore, on the language of Article 356(1), it is legal to hold that the President may exercise only some of the powers given to him, in practice it may not always be easy to demonstrate the excessive use of the power."
' The learned Attorney-General very vehemently argued that it must be kept in view that assumption of the functions of Provincial Government by the Governor on behalf of the Federal Government is a temporary measure to meet extraordinary situation and, therefore, by allowing the Provincial Assembly to perform its normal functions while the proclamation under Article 232(2)
(c) is in force, would result in running of two parallel administrations in the Province simultaneously which is destructive of the object of the proclamation. The learned Attorney-General, however, conceded that in view of the provisions of Article 232(4) of the Constitution, the Provincial Assembly cannot be deprived of its legislative function even when the proclamation is in force, subject of course to the conditions that any legislation passed by it which is in conflict with the legislation passed by the Parliament, to the extent of inconsistency the legislative measures of the Provincial Assembly will be void, so long the proclamation holds the field. In reply to the objection of petitioners that even the legislative function of the Assembly cannot be performed in view of suspension of the provisions of Articles 53(3) and 54(3) of the Constitution, the learned Attorney- General contended that for legislative business the session of Assembly could be summoned by the Governor.
11. Mr. Syed Sami Ahmed, the learned counsel for the Federation, has raised the following contentions:--
(i) while the proclamation of emergency is in force, the distribution of legislative power between the Federal and Provinces is suspended and Majlis-e-Shoora (Parliament) is authorised to legislate in respect of any matter not enumerated in the legislative and concurrent lists;
(ii) during emergency, the Provincial Assembly remains intact and continues to function subject to the limitations mentioned in Article 232(4) of the Constitution;
(iii) Powers in terms of paragraph (c) of clause (2) of Article 232 of the Constitution, are assumed by the Federal Government when the Government of the Province poses a threat to the objects of proclamation of Emergency;
(iv) When powers in terms of Article 232(2)(c) are assumed by the Federal Government, the Provincial Government becomes non-functional and cannot remain operational;
(v) That the order dated 10-11-1998 has been issued to give effect to the object of the proclamation of emergency an& therefore, does not suffer from any kind of legal infirmity;
(vi) The validity of any order issued in pursuance of proclamation of emergency cannot be called in question in view of the provisions of Article 236(2) of the Constitution.
(vii) Article 232(4) is an independent provision and it has no nexus to Article 232(2)(c) of the Constitution; (viii)That suspension of the provisions of Articles 53(3) and 54(3) of the Constitution does not amount to assumption of functions or powers of the Assembly by the Federal Government; and
(ix) that in the absence of political executive in the Province, the Provincial Assembly cannot conceivably discharge its normal functions.
' Mr. Syed Sami Ahmed, in support of his above contentions, has relied on the following cases:--
(1) Muhammad Suleman, M.N.A. v. Islamic Republic of Pakistan PLD 1976 Lah.
1250.
(2) Niaz Ahmad v. Province of Sindh PLD 1977 Kar.
604.
(3) Bhagat Singh v. Emperor AIR 1931 PC 111.
(4) Emperor v. Benoari Lal AIR 1945 PC 48; and
(5) Sabir Shah v. Federation of Pakistan PLD 1994 SC 738.
12. The main controversy in these cases relates to the functioning of Provincial Assembly when the Proclamation of Emergency has been issued by the President of Pakistan under Article 232(1) of the Constitution and the Federal Government in exercise of the power derived under Article 232(2)(c),
(ibid) has assumed the functions of the Government of the Province and all powers vested in or exercisable by anybody or authority in the Province, except the Provincial Assembly.
13. It cannot be denied that existence and functioning of Assemblies are the essential features of Parliamentary democracy. It also cannot be disputed that the primary function of an Assembly is to legislate. However, in countries governed by written Constitutions, the Assemblies exist and function strictly in accordance with the provisions contained in the Constitution in this behalf.
Articles 106 to 128 in Chapter 2 of Part IV of the Constitution provide for constitution, dissolution and functioning of the Provincial Legislature, besides prescribing qualifications/and disqualifications of its members. Similarly, Chapter 3 in Part IV of the Constitution contains provisions (Articles 130 to 140) which deal with the appointments and functioning of the Provincial Cabinet, Chief Ministers and Ministers. In terms of Article 130(4) of the Constitution, the Cabinet in the Province is collectively responsible to the Provincial Assembly. The operation of the provisions contained in Articles 130 to 136 of the Constitution in relation to the Province of Sindh have been suspended under the order of Federal Government issued under Article 232(2)(c) of the Constitution on 30-10-1998. The effect of this order issued by the Federal Government is that the Provincial Cabinet, the Chief Minister and the Ministers in Sindh ceased to hold office during the period the order of Federal Government holds the field. The Provincial Administration which has come into existence as a result of issuance of the above order of Federal Government is not responsible to the Provincial Assembly in terms of Article 130(4) of the Constitution. Therefore, the power enjoyed by the Assembly under the Constituting to oversee the functioning of the Provincial Government cannot be given effect to so long the order of Federal Government issued under Article 232(2)(c) of the Constitution on 30-10- 1998 holds the field.
' Similarly, to regulate the procedure and conduct the business of Provincial Assembly Rules have been framed under Article 67 read with Article 127 of the Constitution, known as "Rules of Procedure of the Provincial Assembly of Sindh" (hereinafter to be referred as the Rules). A careful examination of the Rules will show that most of the functions of the Assembly under the Rules cannot be performed if the Chief Minister, the Minister concerned or the Provincial Cabinet has ceased to exist in the Province. I have already pointed out that as a result of issuance of the Order of the Federal Government dated 30-10-1998, the Provincial Cabinet of Sindh, its Chief Minister and the Ministers have ceased to exist. Therefore, so long the order of the Federal Government dated 30-10-1998 holds the field, the Assembly cannot perform any of those functions which under the Rules could be performed only in the presence of either the Chief Minister or the concerned Minister or the Provincial Cabinet.
14. I now turn to the Order of Federal Government issued under Article 232(2)(c) of the Constitution on 10-11-1998. The text of the Order has already been reproduced earlier in this judgment. The effect of this Order of Federal Government is that the operation of clause (3) of Article 53 and clause (3) of Article 54 read with Article 127 of the Constitution in their application to the Province of Sindh, has been suspended. Articles 53 and 54 of the Constitution read as follows:-- "53.--(1) After a general election, the National Assembly shall, at its first meeting and to the exclusion of any other business, elect from amongst its members as Speaker and Deputy Speaker and, so often as the office of Speaker or Deputy Speaker becomes vacant, the Assembly shall elect another member as Speaker or, as the case may be, Deputy Speaker.
(2) Before entering upon office member elected as Speaker or Deputy Speaker shall make before the National Assembly oath in the form set oath in the Third Schedule.
(3) When the office of Speaker is vacant, or the Speaker is absent or is unable to perform his functions due to any cause, the Deputy Speaker shall act as Speaker, and if, at that time the Deputy Speaker is also absent or is unable to act as Speaker due to any cause, such member as may be determined by the rules of procedure of the Assembly shall preside at the meeting of the Assembly.
(4) The Speaker or the Deputy Speaker shall not preside at a meeting of the Assembly when a resolution for his removal from office is being considered.
(5) The Speaker may, by writing under his hand addressed to the President, resign his office.
(6) The Deputy Speaker may, by writing under his hand addressed to the Speaker, resign his office.
(7) The office of Speaker or Deputy Speaker shall become vacant if--
(a) he resigns his office;
(b) he ceases to be a member of the Assembly; or
(c) he is removed from office by a Resolution of the Assembly, of which not less than seven days' notice has been given and which is passed by the votes of the majority of the total membership of the Assembly.
(8) When the National Assembly is dissolved, the Speaker shall continue in his office till the person elected to fill the office by the next Assembly enters upon his office.
54.--(1) The President may, from time to time, summon either House or both Houses or Majlis-e- Shoora (Parliament) in joint sitting to meet at such time and place as he thinks fit and may also prorogue the same.
(2) There shall be at least (three) sessions of the National Assembly every year, and not more than one hundred and twenty 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: ' Provided that the National Assembly shall meet for not less than one hundred and thirty working days in each year.
' Explanation.-In this clause, 'working days' includes any day on which there is a joint sitting and any period, not exceeding two days, for which the National Assembly is adjourned.]
(3) On a requisition signed by not less than one-fourth of the total membership of the National Assembly, the Speaker shall summon the National Assembly to meet, at such time and place as he thinks fit, within fourteen days of the receipt of the requisition; and when the Speaker has summoned the assembly only he may prorogue it."
15. Article 53 of the Constitution deals with the election to the offices of Speaker and Deputy Speaker, the oath of their office, the manner in which they preside over the meetings of the Assembly and resign from their respective offices, the occurrence of vacancies in the offices of Speaker and Deputy Speaker and continuation of the Speaker in his office on dissolution of Assembly until election of the next in of the newly-elected Assembly. Article 54 provides for summoning of the Assembly and its prorogation by the Governor and the Speaker. The effect of suspension of the provision of clause (3) of Article 53 of the Constitution is that the Speaker or the Deputy Speaker cannot preside over the meetings of the Sindh Assembly. Similarly, the effect of suspension of the provisions of clause (3) of Article 54 is that the Speaker of Sindh Assembly cannot summon a requisition meeting. It may be mentioned here that Speaker of Sindh Assembly has already resigned and as such the office of Speaker has fallen vacant. Speaker is defined in Article 260 of the Constitution as follows:-- "Speaker" means the Speaker of the National Assembly or a Provincial Assembly, and includes any person acting as the Speaker of the Assembly; In view of the above definition of Speaker and the provisions of Article 53(3) of the Constitution, the Deputy Speaker is presently the Acting Speaker of Sindh Assembly.
16. The first question which requires consideration in this behalf is, whether the Federal Government had the authority under Article 232(2)(c) of the Constitution to suspend any of the provisions relating to the functioning of the Sindh Assembly. Article 232 reads as follows:-- 232.--(1) If the President is satisfied that a grave emergency exists in which the security of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government etc. To control, he may issue a Proclamation of Emergency.
(2) Notwithstanding anything in the Constitution, while a Proclamation of Emergency is in force,--
(a) Majis-e-Shoora (Parliament) shall have power to make laws for a Province, or any part thereof with respect to any matter not enumerated in the Federal Legislative List or the Concurrent Legislative List; ' the executive authority of the Federation shall extend to the giving of direction to a Province as to the manner in which the executive authority of the Province is to be exercised; and
(c) the Federal Government may by Order assume to itself, or direct the Governor of a Province to assume on behalf of the Federal Government, all or any of the functions of the Government of the Province, and all or any of the power vested in, or exercisable by, anybody or Authority in the Province other than the Provincial Assembly, and make such incidental and consequential provisions as appear to the Federal Government to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending, in whole or in part, the operation of any provisions of the Constitution relating to anybody or Authority in the Province: ' Provided that nothing in paragraph (c) shall authorise the Federal Government to assume to itself, or direct the Governor of the Province to assume on its behalf, any of the powers vested in or exercisable by a High Court, or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Courts.
(3) The Power of Majlis-e-Shoora (Parliament) to make laws for a Province with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorizing the conferring of powers and the imposition of duties upon the Federation, or officers and authorities of the Federation, as respects that matter.
(4) Nothing in this Article shall restrict the power of a Provincial Assembly to make any law which under the Constitution it has power to make, but if any provision of a Provincial law is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) has under this Article power to make, the Act of Majlis-e- Shoora (Parliament), whether passed before or after the Provincial law, shall prevail and the Provincial law shall, to the extent of the repugnancy, but so long only as the Act of Majlis-e-Shoora (Parliament) continues to have effect, be void.
(5) A law made by Majlis-e-Shoora (Parliament), which Majlis-e-Shoora (Parliament) would not but for the issue of a Proclamation of Emergency have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation of Emergency has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period.
(6) While a Proclamation of Emergency is in force, Majlis-e-Shoora (Parliament) may by law extend the term of the National Assembly for a period not exceeding one year and not extending in any case beyond a period of six months after the Proclamation has ceased to be in force.
(7) A Proclamation of Emergency shall be laid before a joint sitting which shall be summoned by the President to meet within thirty days of the Proclamation being issued and--
(a) shall cease to be in force at the expiration of two months unless before the expiration of that period it has been approved by a resolution of the joint sitting; and
(b) shall, subject to the provisions of paragraph (a), cease to be in force upon a resolution disapproving the Proclamation being passed by the votes of the majority of the total membership of the two Houses in joint sitting.
(8) Notwithstanding anything contained in clause (7), if the National Assembly stands dissolved at the time when a Proclamation of emergency is issued, the Proclamation shall continue in force for a period of four months but, 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."
17. A careful consideration of the provisions of Article 232 of the Constitution will show that under its clause (c), the Federal Government or the Governor of the Province on its behalf, while assuming all or any of the functions of the Government of the Province and all or any of the powers exercisable or vested in anybody or Authority in the Province is prohibited from assuming the functions or powers of the Provincial Assembly. However, the Federal Government is authorised to make such incidental and consequential provisions as may appear to the Federal Government necessary or desirable for giving effect to the object of the Proclamation, including provision for suspending, in whole or in part, the operation of any provision of the Constitution relating to an body or authority in the Province. The contention of the petitioners is that the .Words "anybody or authority in the Province" used in the later part of sub-clause (c) Of clause (2) of Article 232, do not include "Provincial Assembly" and as such the Federal Government had no authority to suspend any provision of the Constitution relating to the functions and powers of the "Provincial Assembly". In my humble opinion, the construction placed on sub-clause (c) of clause (2) of Article 232 of the Constitution by the learned counsel for the petitioners is not in accord with the manifest intention of the Constitution-makers. The words "anybody or authority in the Province" are wide enough to include the Provincial Assembly. The Constitution-makers were fully aware of this wide connotation of the expression "anybody or authority in the Province" and that is why while providing in the first part of the Article 232(2)(c) that the Federal Government may assume all or any of the powers exercisable by "anybody or authority" in the Province specifically excluded "Provincial Assembly" from its purview. If the expression "anybody or authority in the Province" did not include Provincial Assembly, as argued by the learned counsel for the petitioners, thereof was no necessity to specifically exclude the Provincial Assembly while providing for assumption of all or any of the powers vested in or exercised by anybody or authority in the Province, by the Federal Government or the Governor on its behalf. The learned counsel for the petitioners, however, also argued that because Provincial Assembly was specifically excluded while providing for assumption of function of the Government of the Province and the powers vested in or exercisable by anybody or authority in the Province, by the Federal Government or the Governor of the Province on its behalf, therefore, it follows that the Constitution-makers while providing for suspension of the provisions of the Constitution relating to anybody or authority in the Province intended also to exclude the Provincial Assembly. I am unable to accept this interpretation. Sub-clause (c) of clause (2) of Article 232
(ibid) deals with two distinct subjects. One relating to assumption of functions and powers of the Government and other bodies and authorities in the Province by the Federal Government or its nominee; and the other relating to making of incidental and consequential provisions for giving effect to the object of Proclamation. Assumption of function is not synonymous to suspension of the function. The fact that the Constitution-makers while providing for assumption of functions and powers of Provincial Government and other bodies and authorities in the Province by the Federal Government or its nominee, when the proclamation of emergency is in force, specifically excluded Provincial Assembly from its purview, does not mean that they impliedly intended to exclude the Provincial Assembly while providing for suspension in whole or in part of any of the provisions of the Constitution relating to anybody or authority in the Province. If Legislators so intended they could have excluded the Provincial Assembly from the purview of suspension of the provisions of Constitution relating to its functions and powers as they did while providing for assumption of powers by the Federal Government or its nominee in the Province in the earlier part of sub-clause
(c) of clause (2) of Article 232 (ibid). My above conclusions finds support from the proviso appended to sub-clause (c) of clause (2) of Article 232 (ibid), which specifically provides that provisions of paragraph (c) of clause (2) of Article 232 shall not authorise the Federal Government to assume to itself or direct the Governor of the Province to assume on its behalf any of the powers vested in or exercisable by a High Court or to suspend either in whole or in part the operation of any provision of the Constitution relating to High Courts. The power to suspend the provisions of the Constitution relating to anybody or authority in the Province has been given to the Federal Government in the context of making of incidental or consequential provisions to give effect to the objects of the Proclamation.
18. I am, therefore, of the considered view that after assumption of the power by the Federal Government or the Governor on its behalf under Article 232(2)(c), as aforesaid, if the Federal Government finds that it is necessary or desirable to suspend in whole or in part any of the provisions relating to any body or authority in the Province (which expression will include the Provincial Assembly) to give effect to the object of Proclamation, it is competent to do so subject to provisions contained in clause (4) of Article 232 of the Constitution.
19. The Federal Government through its 1st Order dated 30-10-1998 directed the Governor of Sindh to assume on its behalf all powers and functions of Government of Sindh and all powers exercisable or vested in anybody or authority in the Province other than the Provincial Assembly. By the same Order the provisions of Articles 130 to 136 of the Constitution in their application to Province of Sindh were also suspended with the result the Provincial Cabinet of Sindh, the Chief Minister and Provincial Ministers ceased to hold offices. The Order of the' Federal Government issued on 30-10-1998 sets out in detail the object of the Proclamation. The learned Attorney- General has placed material in the case to justify the issuance of second order by the Federal Government under Article 232(2)(c) of the Constitution on 10-11-1998. The press reports appearing in almost all the leading national dailies of Pakistan between the period 30-10-1998 and 10-11-1998 indicated that political parties throughout the country in general and those in the Province of Sindh in particular, were extremely critical about imposition of Governor's rule in the Province of Sindh.
The Deputy Speaker (petitioner in Constitutional Petition No,30 of 1998) even indicated to convene the meeting of Provincial Assembly of Sindh if it was so requisitioned by the members to discuss the imposition of Governor's rule in Sindh at the floor of Assembly. These press reports did indicate that those opposed to Governor's rule in Sindh, wanted to utilize the platform of Sindh Assembly to condemn the imposition of Governor's rule in Sindh. The two requisitions sent to the Speaker to convene the meeting of the Provincial Assembly of Sindh, show that the matters to be discussed in the requisitioned meeting of the 'Assembly included (i) election of Speaker, (ii) imposition of Governor's rule in Sindh, (iii) accusation of M.Q.M. Being involved in Hakim Said's murder, (iv) financial crisis in Sindh, (v) manipulated results of census, and (vi) Kalabagh Dam. Discussion of these items at the floor of Assembly in the prevailing scenario could not have advanced the object of the proclamation. The Federal Government in the above-stated background suspended the operation of clause (3) of Article 53 and clause (3) of Article 54 of the Constitution.
20. I have already reached the conclusion that the Federal Government was competent to suspend the operation in whole or in part of any provision of the Constitution relating to anybody or authority (which included the Provincial Assembly) in the Province of Sindh subject to clause (4) of Article 232 of the Constitution.
21. The learned Attorney-General conceded that in view of clause (4) of Article 232 of the Constitution, the Provincial Assembly continue to enjoy the Legislative power subject only to the condition that in case of conflict between a Legislation passed by the Provincial Assembly of Sindh and the one enacted by Parliament, the Legislation passed by Provincial Assembly of Sindh to the extent of inconsistency with the Act of Parliament, will be void so long the Act of Majlis-e-Shoora continues to have effect.
22. Mr. Syed Sami Ahmed, the learned counsel for the Federal Government has, however, taken a somewhat different stand in this behalf. The learned counsel contended that although clause (4) is part of Article 232 (ibid), but this clause is of general import and is independent, having no nexus with sub- clause (c) of clause (2) of the Act. I am unable to accept the contention of learned counsel.
23. The effect of Proclamation of Emergency under Article 232(1) of the Constitution is that during the period the emergency remains in force, the Parliament is vested with the power to make laws for a Province, or any part thereof, with respect to any matter not enumerated in the Federal Legislative List or the Concurrent Legislative List. It was in this context provided in clause (4) of Article 232 (ibid) that nothing contained in Article 232 shall restrict the power of a Provincial Assembly to make law which it is empowered under the Constitution to make. However, as the Parliament (Majlis-e-Shoora) by virtue of issuance of emergency under Article 232(1) of the Constitution also becomes entitled to enact law for the Provinces, not enumerated in the Federal Legislative List and Concurrent Legislative List, during the period the emergency is in force, both the Parliament as well as the Provincial Assembly are competent to make laws for the Province. It was, therefore, further provided in clause (4) of Article 232 (ibid), that in case of repugnancy or inconsistency between the Act passed by the Provincial Assembly and the Act of Parliament, the Act passed by the Provincial Assembly to the extent of repugnancy, be void so long as the Act of Mailis-e-Shoora (Parliament) continues to have effect. The language of clause (4) of Article 232
(ibid) clearly indicates that this clause is enacted within the scheme of Article 232 and has to be read with the other clauses of the said Article to understand its true impact and meaning. The contention of Mr. Syed Sami Ahmed that clause (4) of Article 232 (ibid), is an independent and general provisions and is to be so read and interpreted does not appear to be correct. In fact the learned counsel while advancing the above contention overlooked the provisions of Article 143 of the Constitution which is a general provision and deals with the effect of inconsistency between Federal and Provincial Laws. It reads as follows:-- "143. If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) is competent to enact, or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, or, as the case may be, the existing law, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnance, be void."
25. As a result of the preceding discussion, I am of the view that the Federal Government is empowered under Article 232(2)(c) of the Constitution, to suspend in whole or in part any of the provisions of the Constitution relating to the Provincial Assembly, as an incidental and consequential measure, if it appears to the Federal Government to be necessary or desirable to give effect to the objects of Proclamation. However, if such suspension of the provisions of the Constitution come in conflict with the exercise of legislative power of the Assembly, then to that extent the suspension of the provision of the Constitution relating to Provincial Assembly will be invalid.
' Accordingly, the suspension of clause (3) of Article 53 and clause (3) of Article 54 of the Constitution, by the Federal Government through its order dated 10-11-1998 in so far it encroached upon the exercise of legislative power of the Provincial Assembly of Sindh, is declared invalid and of no legal effect.
(Sd.)
Saiduzzaman Siddiqui, J.
' MUNAWAR AHMAD MIRZA, J.--Petitioner Syed Jalal Muhammad Shah, Deputy Speaker of Provincial Assembly of Sindh who by virtue of notification dated 26-11-1998 is performing functions as Acting Speaker; has filed this petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan (hereinafter referred to "the Constitution") for enforcement of Fundamental Rights.
2. On 28th May, 1998 President of Pakistan had issued a Proclamation under clause (1) of Article 232 of "the Constitution" and also suspended some of the Fundamental Rights. The above action was challenged and eventually this Court decided the controversy on 28th July, 1998 by following order:- "For the reasons to be recorded later on, we unanimously hold as under:--
(1) That the petitions are maintainable.
(2) That the materials placed before this Court and shown to us in the Chamber, prima facie indicate that the President was justified in issuing the Proclamation under clause (1) of Article 232 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution).
(3) That keeping in view the effect the Proclamation provided for in clause (10) of Article 233 of the Constitution, which authorises the State to make any law or to take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 of the Constitution and also keeping in view the language of Articles 10, 23 and 25 (which are hedged with qualifications), we are of the view that an order under clause (2) of Article 233 of the Constitution for suspending the enforcement of the Fundamental Rights was not justified and, therefore, the original order dated 28-5-1998 and the order dated 13-7-1998 varying the above earlier order are declared as without lawful authority and of no legal effect.
(4) That this Court has jurisdiction to review/re-examine the continuation of Emergency at any subsequent stage, if the circumstances so warrant."
3. It is the case of petitioners that during subsistence of Emergency on 30th of October, 1998 Federal Government proclaimed Governor's Rule in Sindh Province for restoring peace and taking strict action against criminal elements irrespective of political affiliations, to stop random or motivated killing of innocent citizens and eliminating internal threat or danger, and restore business confidence so that ordinary citizens could carry out their day to day functions without let or hindrance. The Order is reproduced below:-- "Whereas a Proclamation of Emergency issued under Article 232 of the Constitution is in force; ' Now, therefore, in exercise of the powers conferred by paragraph (c) of clause (2) of Article 232 of the Constitution, the Federal Government is pleased--
(a) to direct the Governor of the Province of Sindh to assume on behalf of the Federal Government all the functions and powers of the Government of that Province and all the powers vested in, or exercisable by, all bodies or authorities in the Province other than the Provincial Assembly;
(b) to make the following incidental and consequential provisions which appears to the Federal Government to be necessary for giving effect to the objects of the Proclamation, namely--
(i) in the exercise of the functions which the Governor has been directed to assume, he shall act forthwith to restore peace throughout the Province, to take strict action against criminal elements irrespective of their political affiliations, to ensure that the random or motivated killing of innocent citizens shall cease, to take effective steps for the arrest and apprehension of terrorists, to suppress sectarian killings, to combat acts of subversion, whether external or internal, to eliminate internal disturbances, to protect vital national institutions against external threats and dangers, to restore business confidence, and to create a peaceful environment in which ordinary citizens can conduct their day to day affairs in accordance with their Constitutional rights and entitlement within the Province:
(ii) the operation of the following provisions of the Constitution shall stand suspended in relation to the Province of Sindh, namely.-- Articles 130 to i36:
(iii) any reference in the Constitution to the Provincial Government or Chief Minister shall, in relation to the Province of Sindh, be construed as a reference to the Governor; and
(iv) the Chief Minister and Provincial Ministers of the Province of Sindh shall forthwith cease to hold office during the period this Order remains in force."
4. On 10-11-1998 the Federal Government through Cabinet Division issued an Order directing suspension of Articles 53(3) and 54(3) read with Article 127 of the Constitution in relation to Provincial Assembly of Sindh which is reproduced below:-- "ORDER "In exercise of the powers conferred by paragraph (e) of clause (2) of Article 232 of the Constitution of the Islamic Republic of Pakistan the Federal Government is pleased to make the following amendment in its order, dated 30th October, 1998, namely:-- 'In the aforesaid Order in paragraph (b) in clause (ii) for the word 'Articles' the words, figures and brackets 'clause (3) of Article 53 and clause (3) of Article 54 read with Article 127 in their application to the Province of Sindh in so far as they relate to the powers and functions of the Speaker and Deputy Speaker and Articles 'shall be substituted' . "
5. Meanwhile Deputy Speaker on the requisition submitted by 28 M.P.As. Had convened the Assembly Sessions on 12-11-1998 for holding election of new Speaker under Rules of Procedure of Assembly, 1973 and discussion on various matters including the following:-- "PUC II relates to discussion on various matters including:--
(1) Imposition of Governor's Rule in Sindh.
(2) Accusation of M.Q.M. Being involved in Hakim Saeed's murder.
(3) Financial crisis in Sindh.
(4) Manipulated results of census.
(5) Kala Bagh Dam"
6. The session could not be held on 12-11-1998, therefore, it was postponed to 16-11-1998 for considering following agenda:- "Business to be brought forward before the Legislature on Monday the 12th November, 1998 at 3-00 p.m.
(I) (A) Recitation from the Holy Qur'an.
(B) Naat Shareef.
(II) Oath of affirmation by Member, if any.
(III) Leave application, if any.
(IV) Privilege Motion No,2 given Notice of by Mr. Abdul Sattar Ansari, M.P.A.
(V) Adjournment Motion No,1, given Notice of by Mr. M. Arif Siddiqui, M.P.A.
(VI) Election of Speaker.
(a) Member to be informed that Rule 7 of the Rules of Procedure of the Provincial Assembly of Sindh any member may propose or second the name of any other member for election as Speaker.
(b) Members to be informed that under nomination papers for the post of Speaker are to be delivered by the candidate or his proposer or seconder to the Acting Secretary, Provincial Assembly of Sindh in his office by 3-30 p.m. On 16th November, 1998.
(c) The scrutiny of Nomination Papers will be held at 4-30 p.m. On 16th November, 1998 in the Chamber of Acting Speaker in presence of the candidates of their proposer or seconder.
(VII) Any other business with the Permission of the Chair."
7. It is alleged that Government has deployed force by placing obstructions on the routes leading to Assembly building; whereby it became impossible for holding requisitioned meeting of the Provincial Assembly. It is the stand of petitioner that notification dated 10-11-1998 was ultra vires to the Constitution and affected fundamental rights of petitioner and Members of the Provincial Assembly, Sindh, thus, contravening the existing law. Present petition was submitted before this Court on or about 20th November, 1998. The petition was taken up on 23-11-1998 and following order was passed:-- "ORDER ' The main contention advanced by Mr. Abdul Mujeeb Pirzada is that from perusal of clause (c) of paragraph (2) of Article 232 read with paragraph (4) thereof, it is evident that the functions of a Provincial Assembly cannot be suspended on account of imposition of Emergency under the above Article. His further contention is that if the Assembly is to function, the offices of Deputy Speaker and Speaker are necessary part of the Assembly and, therefore, their functions cannot be suspended. We would issue notice to the respondents, the learned Attorney General for Pakistan and the Advocate-General Sindh for 3-12-1998."
8. Final arguments were addressed at length by Mr. Mujib Pirzada, Advocate Supreme Court, the Attorney-General for Pakistan and Mr. Sami Ahmed, Advocate Supreme Court, for Provincial Government of Sindh, Nawab Asadullah Mirza, Advocate Supreme Court in the connected Petition No,31 of 1998 filed by Nawab Mirza former Speaker of Assembly, also addressed the Court. Mr. Aftab Sheikh, Senator, argued the matter, with permission of the Court.
9. Majlis-e-Shoora (Parliament of Pakistan) consists of President and two Houses known respectively as the National Assembly and the Senate the members of National Assembly are elected by adult franchise for a period of five years. After General Election, National Assembly at its first meeting under Article 53(1) of 'The Constitution' elects Speaker and Deputy Speaker from amongst the members, whenever said office falls vacant and the National Assembly shall elect another member as Speaker or Deputy Speaker. It is specifically provided that when office of Speaker falls vacant or Speaker is absent due to any cause, the Deputy Speaker by Constitutional mandate and requirement of Rules, acts as Speaker, and if Deputy Speaker is also not available then such member as may be determined by the Rules of Procedure of the Assembly can preside the meeting of Assembly for conducting its normal business. Under Article 54 the President is empowered to summon either house or both the houses of Parliament at such places and time as deemed fit and enjoins powers to prorogue the same. Additionally under Article 54(3) Speaker can also summon the National Assembly when requisition in that behalf is made by not less than one- fourth of total members of the National Assembly. However, decisions of the Assembly subject to other provisions of the Constitution are regulated by majority view expressed by members present and voting. Article 67 empowers the house to make rules for regulating its procedure and conduct of its business. Legislative procedure is prescribed in Articles 70 and 71 of the Constitution. Members of the National Assembly elect Prime Minister who amongst them commands confidence of the majority and performs the functions as Chief Executive of the country.. Each Province has got its Provincial Assembly and its formation is specified in Article 106 of the Constitution. - The mode for election of Speaker and Deputy Speaker of Provincial Assembly is contained in Article 108 of 'The Constitution'. Governor of the Province under Article 109 has powers to summon and prorogue the Provincial Assembly. Governor also has right of audience to the Provincial Assembly. By virtue of Article 127 of the Constitution, provisions of clauses (2) to (8) of Article 53, clauses (2) and (3) of Article 54, Article 55, Article 63, Article 67, Article 69, Article 77, Articles 87 and 88 of the Constitution apply to the Provincial Assembly with necessary clarifications described in said provision. Any member of the Provincial Assembly who commands confidence of the majority is appointed as Chief Minister for performing functions as Chief Executive of the Province. The cabinet of ministers with Chief Minister aid and advice the Governor in the exercise of his functions under Article 130.
However, by virtue of clause (4) of Article 130, the cabinet is collectively responsible to the Provincial Assembly. The extent of legislative authority exercisable by Provincial Assemblies and Majlis-e- Shoora are prescribed in Articles 141 and 142 of the Constitution, thus in the event of any inconsistency between Federal and Provincial Laws, Act of Provincial Assembly to the extent explained in Article 143 of the Constitution is deemed void.
10. In the background of above description of Constitutional provisions it may be seen that Rules of Procedure of the Provincial Assembly of Sindh, 1973, have been framed under Article 67 read with Article 127 of 'The Constitution'. Chapter IX of said rules relates to legislative powers and functions of the Provincial Assembly. The Constitution obviously envisages Federal Parliamentary System of the Government. The Provincial Assemblies primarily have an obligation to carry out legislative functions. However, on the nature of functions and parliamentary form, the Chief Minister and Cabinet who regulate the policy and performs executive functions in the Province are answerable to the Provincial Assembly.
11. Now adverting to present controversy, it may be san that under Article 232(2)(c) when Federal Government by an order directs the Governor of Province to assume on its behalf functions of the Government of Province and perform all or any of the power vested in and exercisable by any body or authority in the Province other than the Provincial Assembly, then Federal Government under the Constitution becomes empowered to make such incidental and consequential provisions which are necessary or desirable for giving effect to the objects of Proclamation and includes powers of suspending as a whole or part the operation of any provision of the Constitution relating to any such body or authority in the Province. In sub-clause (4) of Article 232 it is elucidated that such exercise of above authority, shall not restrict the Provincial Assembly to make any law which under the Constitution it has powers to make. ,/u>For convenience and ready reference clause (4) of Article 232 is reproduced below:-- (2)
(3)
(4) Nothing in this Article shall restrict the power of a Provincial Assembly to make any law which under the Constitution it has power to make, but if any provision of a Provincial law is repugnant to any provision of an act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) has under this Article power to make, the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Provincial law, shall prevail and the Provincial law shall, to the extent of the repugnancy, but so long as the Act of Majlis-e-Shoora (Parliament) continues to have effect, be void."
12. It is pertinent to mention here that imposition of Governor Rule has not been specifically challenged by Syed Jalal Muhammad Shah in Constitution Petition No,30 of 1998. Besides notice, in both the Constitution Petitions, vide order of this Court dated 23-11-1998 was issued, only to consider whether or not by virtue of clause 232(2)(c) and (4) of the Constitution, the Federal Government by invoking emergency provisions has authority to assume any function and powers vested in or exercisable by anybody or Authority of the Province and also suspend functions of Provincial Assembly. Obviously Federal Government had legitimate authority to suspend the Provincial Governments, whereby executive functions performed by the Chief Minister with Cabinet could be taken over by the Governor and cease to be answerable to the Provincial Assembly.
Undoubtedly Chief Minister and Ministers though are elected from amongst members of the Provincial Assembly yet they constitute "body" or "authority" in the Province. Nevertheless by virtue of sub-clause (4) of Article 232 (supra) the Legislative powers of Provincial Assembly could not be restricted except to the extent that they are found repugnant to Act of Majlis-e-Shoora or principles laid in the above provisions and Article 143 of the Constitution. Thus, comparison of various provisions of "the Constitution" unambiguously disclose that Provincial Assembly retains its legislative authority subject to limitations contained in the Constitution and said functions cannot be taken over by the Federal Government while assuming powers vested or exercisable by anybody or Authority in the Province. The Assembly, therefore, continues to have authority to perform legislative functions within the limits prescribed by the Constitution in accordance with existing rules and procedure framed by it.
' Now looking to other aspects and examining clause (2)(c) of Article 232 of the Constitution, it manifestly comprises of two inherently distinguishable portions. First part evidently relates to powers of Federal Government of assuming functions of the Government of Province exercisable by anybody or authority in the Province other than the Provincial Assembly, whereas second part specifically deals with Federal Government's entitlement to make incidental and consequential provisions when found necessary or desirable which includes competency for suspending, in whole or in part operation of Constitutional provision relating to anybody or authority in the Province. A bare comparison of above-referred two components of sub-clause (c) of clause (2) of Article 232 of "the Constitution" discloses that first part concerning assumption of powers expressly excludes from its operation the Provincial Assembly whereas second part embellishes Federal Government to exercise al pervading jurisdiction to effectively achieve the objects for issuing "proclamation order", and none has been excluded therefrom. Therefore, powers pertaining to suspension of any provision referable to Anybody or authority in the Province, apparently does not exclude Provincial Assembly. It is not out of place to mention here that even if dynamic, progressive and liberal approach is taken for interpretation of Constitutional provision, obviously on the settled principles redundancy cannot be attached to any word or portion of particular provision of "the Constitution" nor meaning could be assigned by importing words from other portion, especially when in the same context legislators in their wisdom have consciously omitted them. Thus express exclusion of Provincial Assembly from the second part, as discussed above, is meaningful and cannot be ignored. Even alternately, comprehending the stand taken on behalf of petitioner, it is noticeable that powers of Speaker and Deputy Speaker are contained in Articles 53(3) and 54(3) read with Article 127 of "the Constitution" and Rules 15 and 16 in Chapter III of Rules of Procedure of the Provincial Assembly of Sindh, 1973. It would be appropriate to reproduce here said provisions for convenience and better understanding of points in issue:- "Article 53:
(1) After a general election, the National Assembly shall, at its first meeting and to the exclusion of any other business, elect from amongst its members a Speaker and a Deputy Speaker and, so often as the office of Speaker or Deputy Speaker becomes vacant, the Assembly shall elect another member as Speaker or, as the case may be, Deputy Speaker."
(2)
(3) When the office of Speaker is vacant, or the Speaker is absent or is unable to perform his functions due to any cause, the Deputy Speaker shall act as Speaker, and if, at that time, the Deputy Speaker is also absent or is unable to act as Speaker due to any cause, such member as may be determined by the Rules of Procedure of the Assembly shall preside at the meeting of the Assembly.
' Article 54: (1)..
(2)..
(3) On a requisition signed by not less than one-fourth of the total membership of the National Assembly, the Speaker shall summon the National Assembly to meet, at such time and place as he thinks fit, within fourteen days of the receipt of the requisition; and when the Speaker has summoned the Assembly only he may prorogue it."
' Article 127: ' Subject to the Constitution, the provisions of clauses (2) to (8) of Article 53, clauses (2) and (3) of Article 54, Article 55, Articles 63 to 67, Article 69, Article 77, Article 87 and Article 88 shall apply to and in relation to a Provincial Assembly or a Committee or members thereof or the Provincial Government, but so that... ...
(a)
(b)
(c)
(d)
(e)
(f)
(g)
' Rule 15: ' The Speaker shall--
(i) preside at every sitting of the Assembly;
(ii) call the Assembly to order;
(iii) maintain order and decorum and have all powers necessary for the purpose;
(iv) cause the galleries to be cleared in case of disturbance or disorder; and
(v) decide all points of order."
' Rule 16: ' The Deputy Speaker, in absence of the Speaker shall--
(i) preside at a sitting; and
(ii) have the same powers and perform same functions as of the Speaker."
14. The above provisions would indicate that functions and powers of "Speaker" and "Deputy Speaker" and pre-eminently of administrative and executive nature. He can convene the House, preside over every sitting of the Assembly, maintain order and decorum in the House, cause galleries to be cleared and decide all points of order. The office of the Speaker like that of Chief Minister is elected by majority votes and he can be removed if it loses confidence of the members.
Therefore, he obviously symbolizes a body or authority in the Province. Therefore, in whatever context the exclusion clause contained in Article 232(2)(c) is construed the Federal Government when emergency is imposed enjoins powers to suspend any of the provision of the Constitution relating to Speaker or Deputy Speaker. Besides it may be seen that though Speaker has powers to convene Assembly when requisition is made in that behalf by not less than one-fourth of total membership, yet there is no provision whereby he can seek his own substitution because it would be self-destructive to authority exercisable by him to preside over the meeting of Assembly.
Apparently convening the House by the Acting Speaker for said purpose is not conceivable under the Rules. In view of above discussions and legal aspects we had decided these petitions by following short order announced on 12-1-1999:-- "For the reasons to be recorded later, the above Constitution petitions are disposed of as under:-- ' Since under the first part of sub-clause (c) of clause (2) of Article 232 of the Constitution, the Federal Government can assume the powers vested in or exercisable by anybody or authority in the Province other than the Provincial Assembly, the incidental and consequential provisions to be made referred to in the second part thereof are relatable to the Order of the Federal Government dated 30-10-1998. In consequence, till the above Order holds the field, the power of the Provincial Assembly of Sindh shall not be restricted to make any law which under the Constitution and existing Rules of the Procedure of the Provincial Assembly of Sindh, it has power to make as contemplated by clause (4) of Article 232 of the Constitution. Resultantly, the Order dated 10-11- 1998 to the extent indicated above, is declared to be without lawful authority and of no legal effect."
15. Thus, above are the reasons for arriving at said conclusions.
(Sd.)
Munawar Ahmad Mirza, J