Present: M. Shahab-ud-Din, A.R. Cornelius, Muhammad Sharif
and Amir-ud-Din Ahmad, JJ
BY THE PRESIDENT OF PAKISTAN UNDER ARTICLE 162 OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKSITAN ——Appellant
Special Reference No. 1 of 1957, opinion given on 5th August, 1957
Answering a Reference on the interpretation of Act., 225 of the Constitution of Pakistan, the Supreme Court set out the following rules for the construction of Statutes and Constitution:–
(1) In the interpretation of written instruments, whether other documents, the first object of the Court is to discover the intention of the author and such intention is to be gathered from the words used n the statute or document.
(2) The intention of the legislature in enacting a statute ought to be derived from a consideration of the whole enactment to order to arrive at a consistent plan. [p. 234]C
(3) A statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made. [p. 255]D
(4) Whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. [p. 235]E
(5) These rules are equally applicable to the interpretation of constitutions, although because of their permanence and the need to apply them to the changing conditions of the society for which they were meant, constitutions are subject in these interpretation, to certain modifications of these doctrines. The fundamental principle of constitutional construction has always been to give effect to the intent of the framers of his organic law and of the people adopting it. [p. 235]F,G.
(6) Effect should be given to every part and every word of the constitution. Hence, as a general rule, the Courts should avoid a construction which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory. [p. 235]H
(7) It is the duty of the Courts to have recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any particular provision. [p. 235]I
(8) If there be any apparent repugnancy between different provisions, the Court should harmonize them if possible. [p. 235]J
Held, that he Governor has no power to dissolve the Provincial Assembly functioning under Article 225. [p. 256]K
The above conclusion was supported by the following among other reasons:–
(1) On the words of Article 225 itself there can be no escape from the conclusion that an interim Provincial Assembly is entitled to exercise the powers and is under an obligation to perform the duties of a Provincial Assembly under the Constitution so long as a new Provincial Assembly is not constituted under the Constitution to take its place. The provision fixed the duration of the interim Assembly, which commence from the Constitution Day and ends o the day on which a anew Provincial Assembly is constituted under the Constitution. Therefore, until that event happens the interim Assembly must continue to function and any premature dissolution of it by an act of the Governor will be in contravention of the Article, because ex-hypothesis if the interim Assembly is dissolved, the dissolution must necessarily be followed by a period during which the dissolved Assembly cannot exercise the powers and perform the duties imposed upon a Provincial Assembly by the constitution. [p. 237]D
(2) If an interim Assembly was dissolved, and machinery having not yet been set up for bringing into existence another Assembly under the permanent provisions of the constitution, the dissolution would land the country into a jungle of Confession not envisaged by the framers of the constitution. Nor could section 234 be invoked to give the President power to form constituencies and to order preparation of electoral rules in direct violence of the Constitution merely to implement the decision of a Governor to dissolve the Assembly for that would be destroying the very basis of the Constitution. [pp. 237, 238]MN.
(3) The words used in Article 225 that the powers of a Provincial Assembly have t be exercised and the duties of “the Assembly performed in the case of East Pakistan by “the Provincial Legislative Assembly for the Provinces of East Bengal functioning immediately before the Constitution Day”, and in the case of West Pakistan by the Legislative Assembly of that Province consisting of persons elected thereto under section 11 of the Establishment of West Pakistan Act, 1955” establish the identity of persons who, subject to any casual vacancy being filled under clause (3) of that Articles, are alone and to the exclusion of all others to exercise the powers and perform the duties of the Provincial Assembly. [p. 238]O
(4) If the power to dissolve an interim Provincial Assembly vests in the Governor, a similar power will have to be conceded to the President in respect of the National Assembly functioning under Article 223. [p. 239]P.
(5) The words “until a Provincial Assembly for the Province… has been duly constituted under the provisions of the Constitution “ indicate a terminus a quo until which the interim Assembly is to exercise the powers and perform the duties of Provincial Assembly and in the absence of words indicating that this period may be arrested for interrupted by the ripening of some other event or contingency, the interim Assemblies must throughout the period perform the functions of a Provincial Assembly under the Constitution. [p. 240]Q.
If in a provision of the Constitution a terminus a quo is given and the end of the period of time is also indicate by the word until then in the absence of words showing, expressly or by necessary implication, that the continuity of the period may be disturbed, the period continues until the happening of the event mentioned in the until-clause. [p. 240]R.