Present: MUHAMMAD RAFIQ TARAR CJ, M.MAHBOOB AHMAD, MANZOOR HUSSAIN SlAL, IHASANUL HAQ CHAUDHARY AND MALIK MUHAMMAD QAYYUM JJ
KHAWAJA AHMAD TARIQ RAHIM
Federation of Pakistan and another.
Writ petition No.6228 of 1990, (also W.P. Nos.6257 and 5849 of 1990) dismissed on 14.10.1990
(i) Constitution of Pakistan, 1973-
—Art.48(5) read with Article 91(8)-National Assembly-dissolution of Care-taker Prime Minister-Appointment of-Challenge to. There is no limitation on power of President to appoint any person as Prime Minister-He has absolute discretion to appoint any person as Prime Minister to head care-taker cabinet—Held: Appointment of respondent No.2 as Care-taker Prime Minister is unexceptionable (Per Muhammad Rafiq Tarar CJ). [P.26JJ
(ii) Constitution of Pakistan, 1973–
—Art.48(5) read with Article 91(8)~National Assembly-Dissolution of-Challenge to—Appointment of respondent No.2 as Care-taker Prime Minister–Whether can be challenged—Question of—Contention that respondent No.2 being leader of opposition in dissolved Assembly, could not have been appointed as Prime Minister after dissolution-Under Article 48(5), appointment of Care-taker cabinet and its composition is in sole discretion of President-Held: Objections raised by Petitioner are without substance and thus not tenable-Held further: Appointment of respondent No.2 as Prime Minister heading care-taker cabinet having been made by President in exercise of his discretion, is unexceptionable and cannot legitimately be questioned in High Court. (Per M.Mahboob Ahmad J). [Fp.bi&S/jAAN, AAO, AAP & AAO
(iii) Constitution of Pakistan, 1973–
—Art. 48(5)-read with article 91(8)-National Assembly-Dissolution of~ Challenge to-Contention that appointment of respondent No.2 as Prime Minister to head care-taker cabinet, was malafide-Held: Contention has no merit because provisions of Article 48(5) read with Article 91(8) of Constitution clearly provide that after dissolution of National Assembly, any person can be appointed as Prime Minister to head care-taker cabinet. (Per Muhammad Rafiq Tarar CJ). [P.24JH
(iv) Constitution of Pakistan, 1973-
—Art.58 read with Article 48—National Assembly—Dissolution of—Challenge to—Balance of power inter-se President and Prime Minister—Determination of- -Nation has experienced consequences of split mandate returned by people in last general elections giving rise to unabated confrontation between Federal and Provincial Governments detrimental to development of democratic process in country-Held: If electorate in on-coming elections acts discreetly in electing one of major contesting parties with at least /3rd majority, it will facilitate Parliament to amend and make Constitution in accord with aspirations of people as embodied in Objectives Resolution. (Per Manzoor Hussain Sial J). [P.85]AAS
(v) Constitution of Pakistan, 1973–
Art.58 read with Article 48-National Assembly-Dissolution of-Challenge to-Balance of power inter-se President and Prime Minister-Whether can be determined by High Court—Question of—Objection raised by DrA.Basit, Advocate, is that amendments made through Eighth Amendment Act, 1985, have tilted balance of power in favour of President- uestion as to what should be balance of power inler-se President and Prime Minister is a political question and any endeavour to resolve such an issue would amount to entering into political arena beyond jurisdictional domain of Judiciary-Held: It is desirable that politically sensitive question should be resolved on floor of House by elected members of Parliament which is competent to amend Constitutional provisions. (Per Manzoor Hussain Sial J). [P.84]AAR
(vi) Constitution of Pakistan 1973–
—-Art, 58(2)(b)-National Assembly-Dissolution of-Challenge to-Argument that if petitioner is able to show that only one of grounds of impugned order is not sustainable, order as a whole should fall in view of observation of learned Chief Justice in Saifullah’s case approved by Supreme Court—Held: Observations appear to be based on facts of cited case in which it was specifically held that none of grounds as taken by then President for forming his opinion to dissolve Assembly, existed or had any nexus with pre-conditions laid down in Article 58(2)(fr)–HeId further: Other Hon’ble Judges of Bench gave findings which do not coincide with observations of learned Chief Justice, and, therefore, principle cannot be said to be one laid down by Court (Per M.Mahboob Ahmad J). [Pp.53&55]T,U & V
PLD 1988 Lahore 725 and PLD 1989 SC 166=PLJ 1989 SC 170 ref
(vii) Constitution of Pakistan, 1973–
—Art. 58(2)(b) read with Article 199-National Assembly-Dissolution of-Challenge (o-Argument that powers conferred upon President under Article 58(2)(b) do not fit in Constitution of a Parliamentary form of Government and thus same should be construed so as to practically divest President from exercise of this power-Held: Court being a creation of Constitution itself can neither add to it nor substract therefrom in any manner-Held further: It is not in all cases necessary that Parliamentary form of Government in every country should be run on some general principles of Parliamentary form even where Constitutional provisions are different. (Per M.Mahboob Ahmad J). [P:52]Q,R&S
Constitutional and Administrative Law by de Smith, 6th Edn. P.74 rel.
(viii) Constitution of Pakistan, 1973-
—-Art.58(2)(b) read with Article 14~National Assembly-Dissolution of- Challenge to-Article 14 guarantees that dignity of man and, subject to law, privacy of home shall be inviolable—this fundamental right was flagrantly violated and disregarded by taping telephones of highly respectable persons including Chairman of Senate and Speaker of National Assembly-Right of privacy of citizen is not only guaranteed by Constitution but has its foundations in Quranic Injunctions and Islamic traditions—Held: No lawful authority is
shown to be existing in favour of any person to order taping of telephones. (Per M.Mahboob Ahmad J). [P.74JAW, AX & AY
Sura Al Hujurat, Verse 12 and PLJ 1990 Magazine 118 ref.
(ix) Constitution of Pakistan, 1973-
—Art. 58(2) (fr)-National Assembly-Dissolution of~Challenge to-¬Constitutional organs of State like Senate and superior judiciary were publicly ridiculed and brought into disrespect-Plea of Federation through Deputy Attorney General/Attorney General that Senate is an invalid body and has no recognition under Constitution—Prime Minister remarked about ex-Members of Senate that “the democratic Government does not want to give VIP status to collaborators of treason”~Seminor in respect of a case decided by High Court and Supreme Court, was held Just to criticize it in a manner which brings superior judiciary into disrespect in eyes of general public—Seminar was chaired by a Governor, and Prime Minister and Senior Minister participated in this seminar and a wide publicity was given to it-Judgment was dubbed as dishonest-Manner in which over three dozens of Judges were dealt with, indicates “respect” that the then Government had towards superior judiciary. (Per M.Mahboob Ahmad J). [P.75JAZ, AAA & AAB
(x) Constitution of Pakistan, 1973-
—Art.58(2) (b)–National Assembly-Dissolution of-Challenge to-Contention that there were other remedies available for checking corruption, nepotism, defection of Members, misuse of funds and horse-trading—President patiently watched developments and advised Federal Government time and again to adopt proper course of action but vices excalated to such a proportion that very solidarity and integrity of country was at stake-Held: President had no option but to dissolve National Assembly in his discretion. (Per Muhammad Rafiq Tarar CJ [P.22JD
(xi) Constitution of Pakistan, 1973-
—Art.58(2) (fa)–National Assembly-Dissolution of-Challenge to-Material has been brought on record to the effect that National Assembly had lost its significance by its failure to do substantial legislative work other than adoption of Finance Bill-Unproductive internal confrontation among members of Assembly, paralysed Constitutional set up of Federal Government and incapacitated legislature to do its primary business of legislation-Held: Legislature being one of important organs of State, could not even carry on its
primary function of legislation which reflected failure of Constitutional frame¬ work. (Per Muhammad Rafiq Tarar CJ) [P.27]L
(xii) Constitution of Pakistan, 1973–
—-Art.58(2)(b) read with Article 199-National Assembly-Dissolution of-Challenge to—Whether Dissolution order can be judicially reviewed by High Court-Question of-Held: In light of principles laid down in Saifullah’s case, it can safely be held that order passed by President under Article 58(2)(b) of Constitution can be judicially reviewed by High Court in exercise of powers conferred on it by Article 199 of Constitution. (Per M. Mahboob Ahmad J). [P.50]O
PLD 1989 SC 166=PLJ 1989 SC 170 rel.
(xiii) Constitution of Pakistan, 1973-
—Art.58(2) (b)-National Assembly-Dissolution of-Challenge to-Whether Dissolution Order was justified-Question of~there is no merit in contention that there was no constitutional break-down when President invoked his jurisdiction to dissolve National Assembly-Held: Facts brought on record and considered by President justified him to hold that Government of Federation was unable to function in accordance with provisions of Constitution.(Per Muhammad Rafiq Tarar CJ). [P.21]C
(xiv) Constitution of Pakistan, 1973-
—Art.58(2) (b)–National Assembly-Dissolution of-Challenge to-Whether entire order stands vitiated if one of grounds is found non-existent-Question of-In Muhammad Sharif s case, then Chief Justice made a passing remark in nature of purely obiter dicta that if one of grounds is found non-existent, entire order stands vitiated-Supreme Court made no reference to this observation-This point was neither agitated nor discussed before Supreme Court—Held: Principle applicable is that before an order passed by a public functionary is struck down, it is duty of court to explore every possible explanation for its validity and examine entire field of powers conferred on authority in pursuance to which impugned order was passed. (Per Muhammad Rafiq Tarar CJ).
lPp.22,23&24]E,F & G.
PLD 1969 SC 210, AIR 1943 FC 1(8) and PLD 1983 Lahore 102 not applicable. PLD 1962 (WP) Lahore 172, 1987 MLD 750 and 1981 PLC 981 distinguishable. PLD 1951 Lahore 17 & AIR 1976 SC 232 ref. PLD 1966 SC 725 and PLD 1971 SC 811 rel.
(xv) Constitution of Pakistan, 1973–
—- Art. 58(2) (ft)-National Assembly-Dissolution of-Challenge to-Whether grounds of Dissolution Order have nexus with preconditions prescribed in Article 58(2) (fr)–Question of-Activity of horse-trading assumed such scandalous proportions that President had to dwell upon it in his address to joint session of Parliament on 2.12.1989—Example of horse-trading is clearly demonstrated by fact that some of opposition Members of Assembly who were instrumental in defeat of no-confidence motion against Prime Minister, were
immediately thereafter appointed Ministers/Ministers of State—Held: Curse of horse-trading was a valid ground for dissolution of Assembly. (Per M.Mahboob Ahmad J). [P.68]AK & AL
(xvi) Constitution of Pakistan, 1973-
—-art.58(2)(b) read with Articles 245 and 148(3)-National Assembly-¬Dissolution of-challenge to-Whether grounds of Dissolution order have nexus with preconditions prescribed in Article 58(2)(b)–Question of-Disturbances in Sindh had assumed serious proportions-Even then Attorney General had stated his opinion that Article 245 of Constitution was necessarily required to be invoked-President, Governor and Principal Law Officer of Government were all of view that in order to save valuable life and property of citizens, a provision of Constitution should be invoked and yet Government failed to act-No doubt maintenance of Law and Order situation is a responsibility of Provincial Government, but where internal disturbances are beyond its control, it becomes duty of Federal Government under Article 148(3) to protect province-Held: It is established that Government of Federation could not be run in accordance with provisions of Constitution and dissolution of National Assembly was justified. (Per M.Mahboob Ahmad J).
[Pp.68,69,70&71]AM, AN, AO & AP
(xvii) Constitution of Pakistan, 1973-
—Art.58(2)(b) read with Articles 153, 154 & 160-National Assembly-¬Dissolution of-Challenge to-Whether grounds of Dissolution order have nexus with preconditions prescribed by Article 58(2)(b)—Question of—Federal Government despite repeated demands by three out of four federating units and unanimous resolution of Senate, failed to call a meeting of Council of common interests—President re-emphasized that in order to resolve Centre Provinces differences, it was necessary to let constitutional institutions
function—Formation of another important constitutional institution, i.e. National Finance Commission was continuously delayed-Federating Units were thus deprived of constitutional remedy for redress of their grievances qua distribution of revenues-Held: President only took notice of acrimony between Federation and Provinces and considered it a matter relatable to grounds envisaged by Article 58(2)(b) of Constitution for passing an order thereunder. (Per M.Mahboob Ahmad J). [Pp.71,72&73]AQ, AR & AS
(xviii) Constitution of Pakistan, 1973–
—-Art.58(2) (ft)-National Assembly-Dissolution of-Challenge to-Whether grounds of Dissolution order have nexus with preconditions prescribed in Article 58(2) (b)–Question of—Huge amounts were disbursed on orders of Ex- Prime Minister out of secret service fund—Statement made before Court by Maj. Gen.(Retd.) Naseerullah Khan Babar does not inspire any confidence- Misuse of secret fund being a subject of a Reference under P.O. No.17 of 1977, no further comments are needed-Held: President could legitimately take notice of filtering away of huge amounts from secret service fund, for passing order under Article 58(2)(fo) of Constitution. (Per M.Mahboob ahmad J). [Pp.78&79]AAF, AAG, AAH, AAJ & AAK
(xix) Constitution of Pakistan, 1973–
—Art.58 (2) (fr)-National Assembly-Dissolution of-Challenge to-Whether grounds of Dissolution order have nexus with pre-conditions prescribed in Art.58(2)(b)-Question of-Main purpose of Parliament, of which National Assembly is an important component, is to undertake legislative work—There was material before President that National Assembly not only did not but was also not in a position to carry out any substantial legislative work effectively— During 20 months tenure, out of 50 Ordinances/Bills, only 15 could be passed- -Held: There was breakdown of legislative machinery resulting in a deadlock which has a direct nexus with Article 58(2)(b) of Constition and President was justified in making this ground a basis for dissolving Assembly. (Per Mahboob Ahmad J). [P.67JAF, AG, AH & AJ
(xx) Constitution of Pakistan, 1973–
—Art.58 (2) (b)-National Assembly-Dissolution of-Challenge to—whether reasons forming basis of Dissolution Order had nexus with pre-conditions prescribed in Article 58(2) (b)–Qeustiori of-Material placed on record coupled with affidavits, shows that entire material was before president when he formed opinion about situation and passed impugned order—Held: Reasons forming basis of order had direct nexus with action taken and pre-conditions prescribed in Article 58(2) (b) of Constitution. (Per Muhammad Rafiq Tarar, CJ). [P.21]B
(xxi) Constitution of Pakistan, 1973-
-—An.58(2) (b)–National Assembly-Dissolution of-Challenge to-Whether grounds of Dissolution Order had nexus with preconditions prescribed under Article 58(2) (b) of Constitution—Question of—President had validly passed impugned order because be had formed an opinion that Government of Federation could not be carried on in accordance with provisions of Constitution and appeal to electorate was necessary-Held: Grounds that weighed with president for passing impugned order had direct nexus with preconditions prescribed by Article 58(2) (b) of Constitution-Held further: Impugned order is not liable to be interfered with in Constitutional jurisdiction of High Court. (Per Muhammad Rafiq Tarar CJ) [P.32]M & N
(xxii) Constitution of Pakistan, 1973–
—Art. 58 (2) (b)–National Assembly-Dissolution of-Challenge to-Whether grounds of Dissolution order have nexus with preconditions prescribed in Article 58(2) (b)–Question of-Reference has been made to some other misuses of resources of Government and statutory corporations/Banks etc., for political ends—No specific finding is being given thereon as they may also be subject of Reference/other legal proceedings and any comments may prejudice either of parties in those proceedings-Held: Ground taken in this regard by President can be reasonably said to have nexus with pre-conditions envisaged in Article 58(2)(b) of Constitution. (Per M. Mahboob Ahmad J). [P.80]AAL & AAM
(xxiii) Constitution of Pakistan, 1973–
—-Art. 58(2) (b)–National Assembly-Dissolution of-Challenge to-Whether grounds in Dissolution Order have nexus with preconditions prescribed in Article 58(2) (b)-Question of-26000 Appointments were made not only on political basis, appointees being members/workers of PPP only, but same were also without consideration of merits and of even such persons who being dismissed Government servants were ineligible for re-appointment- Wholesable appointments in service of Federation and statutory corporations ere through agency of Placement Bureau which neither had any legal status nor any legislative backing-Held: Action taken by constitutional functionary empowered to do so, against such a Government, cannot be said to have no nexus with preconditions (prescribed by Article 58(2)(b) of Constitution). (Per M.Mahboob Ahmad J). [Pp.75,76&77]AAC, AAD & AAE
(xxiv) Constitution of Pakistan, 1973–
—- Art.58(2) (/?) read with Article 97-National Assembly-Dissolution of-¬Challenge to—Whether grounds of Dissolution order have nexus with pre¬conditions prescribed by Article 58(2)(fr)–Question of~Two Provinces did not approve of action of Federal Government in launching Peoples Programme without participation of Provincial Governments—Direct launching of this programme could have resulted in a sort of civil war—Article 97 prohibits extension of Federal executive authority in any province—Launching of this programme is neither envisaged by any provision of Constitution nor any law is shown to have been made by parliament for this purpose-Held: These violations of Constitutional requirement cannot be, but termed as valid ground for action under Article 58(2)(b) of Constitution. (Per M. Mahboob Ahmad J). [Pp.73&74]AT, AU & AV
(xxv) Constitution of Pakistan, 1973–
—-Art. 58(2) (b)–National Assembly-Dissolution of-Challenge to-Whether opinion that Federal Government could not be carried on in accordance with provisions of Constitution was rightly formed by President-Question of~ President applied his mind to facts and accompanying events and recorded reasons in self-contained order-Held: President had rightly formed an opinion that situation had arisen in which Government of Federation could not be carried on in accordance with provisions of Constitution. (Per Muhammad Rafiq Tarar CJ [P.26]K
PLD 1989 SC 166 distinguished,
(xxvi) Constitution of Pakistan, 1973–
—Art. 58(2)(6)-National Assembly-Dissolution of-Challenge to-Whether order as a whole is to be struck down if one of grounds is non-existent or vague-Question of-Held: Universal application of this proposition cannot be given effect to on very weighty reason based on another well settled principle of law namely that before striking down an order, Court must explore every possible explanation for its validity and examine entire field of powers conferred on authority by which impugned order has been passed and all efforts must be made to uphold it. (Per M.Mahboob Ahmad J). [P.60]X & Y
PLD 1966 SC 725 and PLD 1971 SC 811 rel.
(xxvii) Constitution of Pakistan,1973–
—-Art. 58(2) (b)-National Assembly-Dissolution of-Challenge to~Whether President could dissolve National Assembly—Question of—President has first to assess situation and form an opinion objectively that Government of Federation cannot be carried on in accordance with .provisions of Constitution- -Held: It is prerogative of President to dissolve National Assembly provided that preconditions set out in Article 58(2) (b) of Constitution are fully satisfied. (Per Muhammad Rafiq Tarar, CJ) [P.21JA
PLD 1989 SC 166 = PLJ 1989 SC 170 rel.
(xxviii) Constitution of Pakistan, 1973–
—Arl.58(2) (b) read with Article 2-A~National Assembly-Dissolution of-Challenge to—Words “an appeal to the electorate is necessary”—Scope of— Constitution envisages Pakistan to be an Islamic Republic, where per our belief, sovereignty over entire universe belongs to Almighty Allah alone-Sovereignty over Pakistan is delegated by Almighty Allah to people of Pakistan as a sacred trust through its chosen representatives, i.e. Members of Parliament—Held: If sacred trust reposed in Members of Assembly by people as delegate of God Almighty is abused, misused or not exercised in accordance with tenets of Islam and Constitution, President can, by dissolving Assembly, make an appeal afresh to people who, in common parlance of parliamentary language, are political sovereigns. (Per M.Mahboob Ahmad J). [Pp.62,64&65[AB, AC & AD
Verses in Holy Quran, and An Introduction to the study of the Law of the Constitution, tenth edition, at Page 433 ref.
(xxix) Constitution of Pakistan, 1973-
—Art.58(2) (b)–National Assembly-Dissolution of challenge to~Words “discretion” and “opinion” used in clause (2) of Article 58, lead to plausible inference that exercise of discretion has to follow formation of an opinion- Opinion has to be objective-Held: Court will not interfere in exercise of discretion merely on ground that another conclusion may be possible. (Per M.Mahboob Ahmad J). [P.61]AA
(xxx) Constitution of Pakistan, 1973–
—-Art.199 read with Article 58(2)(£)~National Assembly-Dissolution of- Challenge to—Judicial review—Scope of—Judicial review contemplated for exercise of Constitutional jurisdiction by High Court under Article 199 has a scope distinct from its appellate jurisdiction-Held: Unless exercise of discretion by President under Article 58(2)(fc) of Constitution is shown to be malafide, frivolous, capricious, vaxatious or arbitrary, power of judicial review will not be available to High Court to interfere with discretion, (per
M.Mahboob Ahmad J). [P.52]P
(xxxi) Constitution of Pakistan, 1973-
—Art.199 read with Art.58 (2)(fe)-National Assembly-Dissolution of- Challenge to-Whether newspaper clippings/reports cannot be read in present proceedings for determining soundness/validity of opinion formed by President—Question of—In cases of constitutional nature, matters have to be decided on affidavits of parties as also on such material which in attendant circumstances of cases, can be referred to or relied upon-Newspaper clippings/reports relied upon by Federation, are undcnied reports of events of
PPP Government’s tenure and have not, in any manner, been rebutted by petitioner-Held: Reference to newspaper clippings/reports cannot be refused and material available therefrom can be referred to for purpose of examining soundness and validity of grounds taken in order of President. (Per M.Mahboob Ahmad J). [Pp.65&66]AE
1986 SCMR 1736 not attracted. PLD 1976 SC 57 rel.
(xxxii) Obiter Dicta-
—National Assembly-Dissolution of~Challenge to-Whether observations of the learned Chief Justice in Saifullah’s case that if only one of grounds for dissolution of Assembly is non-existent, order as a whole should be struck down, amount to principle or obiter dicta–Question of—Application of this principle may vary from case to case and would only be aptly attracted where it is shown that grounds forming basis of an order are so intertwined and inseverable that each one of them cannot be taken as an independent ground-¬
Held: Question as to whether an order as a whole should be struck down if one of grounds is found to be non-existent or vague, was not in issue in Saifullah’s case and observations would, therefore, be obiter only. (Per M.Mahboob Ahmad J). [Pp.55&56]W
PLD 1989 Lahore 725 ref.
Halsbuny’s Laws of England, 4th Edition, Vol.1, Para 26, at Page 29, Administrative Law by H.W.R. Wade, 6th Edition, at Page 338, (1983) 1 Q.B.570, (1972) 1 All E.R. 225, PLD 1951 Lahore 17, 1966 SC 793, PLD 1975 SC 506, AIR 1963 SC 779, AIR 1967 SC 1353 and AIR 1976 SC 232 rel.
(xxxiii) Words and Phrases-
—Word “also” as used in Article 58(2) of Constitution-Meaning and scope of- Word “also” has a special significance-President’s power to dissolve National Assembly under Article 58(1) is dependent upon advice of Prime Minister- Power under Article 58(1) is exercisable by a conjoint action of Prime Minister and President-Held: Use of word “also” in Article 58(2) would, therefore, clearly spell out that President has an additional power to dissolve National Assembly independent of advice of Prime Minister. (Per M.Mahboob Ahmad J). [Pp.60&61]Z
Raja Muhammad Anwar, Advocate, assisted by Mian Abdus Sattar Najam, Mr.Shahid Iqbal, Syed Sharif Hussain Bokhari and Mr.Naseer Ahmad, Advocates for Petitioner.
Dr. Abdul Basit, Advocate for Petitioner (in W.P. 5849 of 1990).
Mr^Aziz A.Munshi, Attorney General of Pakistan, assisted by Ch.Muhammad Farooq, Sh~Abdul Mannan, Mr.Faqir Muhammad Kliokhar and Ch. Ijaz Ahmad, Deputy Attorneys General, and Ch. Fazal Hussain, Advocate for respondent No.l
Mr.S.M.Zafar & Syed Zahid Hussain, Advocates for respondent No.2
Agha Muhammad Dilawar KJian, applicant in person (in C.M.4166 of 1990).
Mr.Muhammad Ismail Qureshi, Advocate (in C.M.4233 of 1990).
Mr.Saifullah, applicant in person (in C.M.4345 of 1990).
Mr.Rafiq Ahmad Bajwa, Advocate (in C.M.4447 of 1990).
Rai Muhammad Nawaz KJwral, Advocate (in C.M.4560 of 1990).
Date of hearing: 22,23,24,25,26,29 and 30.9.1990 and 1,6,7,8,9,10,13 and 14.10.1990.
Muhammad Rafiq Tarar, C J.-On the eve of 6th August 1990, the President of Pakistan issued Order under Article 58(2) (b) of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the Constitution) whereby he dissolved the National Assembly of Pakistan and, in consequence, the Prime Minister and her Cabinet ceased to hold office with immediate effect. The Order, passed by the President on 6th August 1990, reads:-
“The President having considered the situation in the country, the events that have taken place and the circumstances, and among others for the reasons mentioned below is of the opinion that the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary: –
(a) The utility and efficacy of the National Assembly as a representative institution elected by the people under the Constitution, and its mandate, is defeated by internal dissensions and frictions, persistent and scandalous ‘horse-trading’ for political gain and furtherance of personal interests, corrupt practices and inducement, in contravention of the Constitution and the law, and by failure to discharge substantive legislative functions other than the adoption of the Finance Bill, and further the National Assembly has lost the confidence of the people.
(b) The Constitution envisages the Federation and the Provinces working within the spheres respectively assigned to them with clearly delineated executive and legislative authority; and with a view to safeguarding the structure of the Federation also contains special provisions of mandatory nature to ensure and protect the authority granted to the Provinces, by creating specific constitutional institutions consisting of Federal and Provincial representatives, but the Government of the Federation has wilfully undermined and impaired the working of the constitutional arrangements and usurped the authority of the Provinces and of such
institutions, resulting in discord, confrontation and deadtock, adversely affecting the integrity, solidarity and well-being of Pakistan, in that, inter alia:-
(i) The Council of Common Interests under Article 153, which is responsible only to Parliament, has not been allowed to discharge its constitutional functions and exercise its powers despite persistent demands of the Provinces, and Parliament has aiso not been allowed to function in this regard as required by Articles 153 and 154, and in relation to Articles 155 and 161.
(//) The National Finance Commission under Article 160 has never been called to meet and allowed to function, thus blocking mandatory constitutional processes in the matter of allocation of shares of revenues to the Provinces despite their persistent demands.
(iii) Constitutional powers and functions of the Provinces have been deliberately frustrated and extension of executive authority of the Federation to the Provinces in violation of Article 97 and by the general manner of implementation of the Peoples’ Programme.
(/v) The Senate, which is representative of the Federating Units under Article 59 and is an integral part of Parliament, has been ridiculed and its constitutional role has been eroded.
(c) Corruption and nepotism in the Federal Government, its functionaries and Authorities and Agencies, statutory and other corporations including Banks, working under its supervision and control and the holders of representative offices has reached such proportions, that the orderly functioning of the Government in accordance with the provisions of the Constitution including the requirements of the Oath (s) prescribed therein, and the law, does no longer carry public faith and credibility and
despite being subject to wide public condemnation, the Government has failed to take appropriate action in this behalf.
(d) The Federal Government has failed in its duty under Article 148(3) of the Constitution to protect the Province of Sind against internal disturbances and to ensure that the Government of that Province is carried on in accordance with the provisions of Constitution, despite the heavy loss of life and property, the rule of terror in urban and rural areas, riots, arson/ dacoities, kidnapping for ransom, politics of violence among citizens and widely condemned failure of the Provincial Government and its law
enforcing agencies, and also, in this behalf, failed to act under appropriate provisions of the Constitution.
(e) The Government of the Federation has violated the provisions of the Constitution and the law in that:-
(/) The Superior Judiciary has been publicly ridiculed and its integrity attacked and attempts made to impair its independence.
(//) Authority, resources and agencies of the Government of the Federation including statutory Corporations, authorities, and Banks have been misused for political ends and purposes and for personal gains.
(iii) The Civil Services of Pakistan have been undermined by disregarding the provisions of Articles 240 and 242.
(iv) The powers under Article 45 have been exercised by the Government without prior approval of the President.
Now, therefore, I, Ghulam Ishaq Khan, President of the Islamic Republic of Pakistan in exercise of the powers conferred on me by clause (2)(b) of Article 58 of the Constitution of the Islamic Republic of Pakistan dissolve the National Assembly with immediate effect; and the Prime Minister and the Cabinet cease to hold office forthwith.”
The afore-mentioned Order of the President was challenged in this Court by Kh. Ahmad Tariq Rahim, ex-Federal Minister for Parliamentary Affairs, Government of Pakistan, through Writ Petition No.6228 of 1990, Mr. Zair Sikandar Khan, Advocate, through Writ Petition No.6257 of 1990 and Wokala Mahaz barai Tahafuz Dastoor through Writ Petition No.5849 of 1990. The first two petitions were admitted to regular hearing by a Division Bench of this Court on 2nd September 1990 and were referred to the Chief Justice for constitution of a larger Bench as the questions raised therein were of vital public importance. The third writ petition.(No.5849 of 1990) was also admitted to regular hearing on 18th September 1990 and directed to be put up along with aforesaid Writ Petition No.6228 of 1990.
The Order of the President was also assailed in the Peshawar High Court by Mian Muzaffar Shah, ex-Minister of State, Government of Pakistan, through Writ Petition No.351 of 1990 and by Wokala Mahaz barai Tahafuz Dastoor through Writ Petition No.379 of 1990. Similarly, constitutional petitions were also filed in Sind and Baluchistan High Courts impugning the aforesaid Order.
The Federation of Pakistan thus invoked the jurisdiction of the Supreme Court under Article 186A of the Constitution for consolidation of the cases, pending in the four High Courts for disposal. On 15th September 1990, on the move of the Federation of Pakistan for consolidation of the cases, the Supreme Court transferred the above-mentioned two writ petitions pending in the Peshawar High Court to this Court and the writ petitions pending in Baluchistan High Court were transferred to Sind High Court for disposal.
By this order we propose to dispose of the afore-mentioned five writ petitions together.
2. Mian Muzaffar Shah and Kh. Ahmad Tariq Rahim petitioners controverted the allegations levelled in the impugned order, passed by the President, dissolving the National Assembly. In nut-shell, it was pleaded that the former Federal Government having majority in the National Assembly enjoyed confidence of the people, it passed the current Federal Budget for the year 1990-91, provided political stability, enhanced the prestige of Pakistan in world community and endeavoured to achieve socio-economic development in the country when, all of a sudden, the President issued the Dissolution Order, ostensibly under clause (2)(b) of Article 58 of the Constitution contrary to the law declared in Haji Muhammad Saifiillah Mian’s case (PLD 1989 S.C. 166 = PLJ 1989 SC 170) by the Supreme Court of Pakistan. It was submitted that the Dissolution Order was void, mala fide, based on reasons which were extraneous, vague, fanciful and having no nexus with the conditions prescribed in Article 58(2)(b) of the Constitution.
Mr.Zair Sikandar Khan petitioner pleaded that the grounds mentioned in the impugned Order could not stand the scrutiny of closer examination nor could provide justification for the Order dissolving the National Assembly. He submitted that the Dissolution Order was unconstitutional, mala fide and passed in abuse of the powers vested in the President. In the alternative, it was pleaded that in case the Dissolution Order was held valid, the elections, scheduled to be held on 24th October 1990, should not be allowed to be postponed, notwithstanding the commencement of the process of accountability of the members of the ousted Government or National Assembly.
The constitutional petitions, filed on behalf of Wokala Mahaz barai Tahafuz Dastoor, challenged the validity of the Eighth Amendment Act, introduced in 1973-Constitution, on the ground that it contravened the provisions of Article 239 of the Constitution. It was submitted that the impugned order having been passed in exercise of jurisdiction derived from the amended Article 58 of the Constitution, was liable to be declared unconstitutional and of no legal effect.
3. The Federation of Pakistan filed written-statement and annexed therewith several documents to support the impugned order and controvert the allegations levelled in the writ petitions. It was pleaded in the written-statement that the President, in pursuance of clause (2)(b) of Article 58 of the Constitution, had formed an opinion that a situation had arisen in which Government of Pakistan could not be carried on in accordance with the provisions of the Constitution and passed the Dissolution Order in exercise of his discretion which was valid and that the adequacy and sufficiency of the reasons for the Dissolution Order were not justiciable. Reference was made in detail to the existence of facts, like corruption and horse-trading among the members of the National Assembly, misuse of DIB Secret Service Funds and PAF and PIA aircrafts during No- confidence Motion against the former Prime Minister, non-convening of meetings of Council of Common Interests (hereinafter called CCI) and National Finance
Commission (hereinafter called NFC), ridiculing the Senate and Judiciary, undermining the Civil Service structure and Service of statutory corporations, taping telephones of dignitaries and political personalities, non-giving of powers under Article 245 of the Constitution to the army already deployed to control internal disturbances in Sindh and existence of unabating confrontation between the Federal Government and two of the Provincial Governments, to show that the President had rightly exercised his jurisdiction to dissolve the National Assembly, appoint Care-taker Cabinet and fix the 24th of October 1990 for fresh elections.
4. Before highlighting the contentions advanced by the learned counsel for the parties and examination thereof, it appears appropriate to refer to the legislative history of Article 58 of the Constitution, under which the President of Pakistan passed the impugned Order dissolving the National Assembly. Article 58, as amended, refers to Article 48. It will be useful if these Articles of the Constitution, before Amendments introduced therein, are reproduced hereunden-
“48. President to act on advice, elc.–
(1) In the performance of his functions, the President shall act on and in accordance with the advice of the Prime Minister and such advice shall be binding on him.
(2) The question whether any, and if so what advice was tendered to the President by the Prime Minister shall not be inquired into in any Court.
(3) Save as otherwise provided in any rules made under Article 99, the orders of the President shall require for their validity the counter-signature of the Prime Minister.
58. Dissolution of National Assembly. —
The President shall dissolve the National Assembly if so advised by the Prime Minister; and the National Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the Prime Minister has so advised. Explanation.-Reference in this Article to ‘Prime Minister’ shall not be construed to include reference to a Prime Minister against whom a resolution for a vote of no-confidence has been moved in the National Assembly but has not been voted upon or against whom such a resolution has been passed or who is continuing in office after his resignation or after the dissolution of the National Assembly or a Federal Minister performing the functions of Prime Minister under clause (1) or clause (3) of Article 95.”
Undoubtedly, before 5th July 1977, the 1973-Constitution remained in vogue in Pakistan but on that day General Muhammad Zia-ul-Haq, who was then the Chief of the Army Staff, proclaimed Martial Law throughout the country and assumed the office of the Chief Martial Law Administrator. The Constitution was held in abeyance, the National Assembly and the Senate were dissolved and the Prime Minister and Ministers of his Cabinent were dismissed from their offices. On the same day, the Laws (Continuance in Force) Order, 1977, was issued with a declaration that the country would be governed, as nearly as may be, in accordance with the provisions of 1973-Constitution, notwithstanding its holding in abeyance and subject to any Order issued by the President and Martial Law Regulations issued by the Chief Martial Law Administrator.
On 23rd March 1981 the Chief Martial Law Administrator promulgated the Provisional Constitution Order. Apart from other provisions, it contained certain Articles of 1973-Constitution and thereby was transformed into a self-contained document. It provided validity to all Orders and Regulations, including the Proclamation issued on 5th July 1977, imposing Martial Law in the country by the Chief Martial Law Administrator. The powers of the Superior Courts regarding judicial review of orders passed, actions taken and proceedings held by Martial Law authorities were curtailed. As a matter of fact, immunity was provided to them from challenge before any Court, including the Supreme Court of Pakistan. That Order further nullified the effect of any order or judgment passed by any Court, questioning the validity of the constitutional Amendments and jurisdiction of Military Courts. Thereafter, the country was governed in accordance with the provisions of this Order until the 2nd of March 1985, on which date the Pi esident promulgated an important legal instrument, known as the Revival of the Constitution of 1973 Order, 1985 (Presidential Order No. 14 of 1985), which introduced extensive Amendments in 1973-Constitution. The Amendments formed part of the Schedule appended with the Order. Articles 48 and 58 were also amended. These Articles, as amended by Presidential Order No.14 of 1985, read as follows:-
“48. President to act on the advice, etc.–(l) In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet, the Prime Minister or appropriate Minister.
Provided that the President may require the Cabinet to reconsider or consider such advice, as the case may be, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration or consideration”.