[Appellate Jurisdiction]

MUHAMMAD AFZAL ZULLAH, CJ, Dr. NASIM HASAN SHAH, SHAFIUR RAHMAN, SAAD SAOOD JAN, NAIMUDDIN, ABDUL SHAKURUL SALAM, ABDUL QADEER CHAUDHRY,

Kliawaja AHMAD TARIQ RAHIM
versus
FEDERATION OF PAKISTAN, and another

Civil Petition No. 628 of 1990, dismissed on 4.11.1991

(approved for reporting on 6.8.1992).

[On appeal from judgment of Lahore High Court, dated 14.10.1990, passed in W.P. Nos. 6228, 6257 and 5849 of 1991, and 351 and 379 (Peshawar) of 1990 (reported as PLJ 1991 Lahore 1(FB).]

(i) Alternate Remedy-
—National Assembly-Dissolution of–Challenge to–Whether any alternative remedy was available to President before dissolving Assembly-Question of~ All alternative constitutional powers are exercisable by President only on advice of Prime Minister and not in his discretion-Held: There are no alternate remedies available to President but these alternate remedies are available to Prime Minister (Majority view).
[Pp.528&529]A

(ii) Constitution of Pakistan, 1973-
—Art.. 58(2).(b) read with Article 91(8)-National Assembly-Dissolution of~ Challenge to-Although under amended Article 91(8), any person can be appointed as a Prime Minister when Assembly stands dissolved, but to appoint Leader of Opposition as a Prime Minister in circumstances would show that whole Assembly was not at .fault, so entire body could not be dissolved-Held: For dis-satisfaction with Leader of House, to dissolve whole House and to appoint Leader of Opposition as Prime Minister, will not inspire impartiality, pre-requisite of high office of President—Held further: Adivce being taken not from constitutional authority, i.e. Prime Minister, but from authorities or persons not authorised by constitution to tender advice, or President acting on his own, he fell in error in exercising power of dissolution of National
Assembly which did not vest in him nor was available in circumstances. (Per A.S. Salam, J). [Pp.547&548]O,P&Q

(iii) Constitution of Pakistan, 1973-
—- Art. 58(2)(b)-National Assembly-Dissolution of-Challenge to-A President vested with powers to govern, unless made a dictator, cannot run affairs of State even with ultimate threat of dissolving National Assembly—If same Assembly is re-elected with a bang, it would be enrbaTassing for President and if Assembly takes into its head to impeach him, it would be aweful situation- This risk could only be taken by late President who was also Chief of Army Stall and could re-impose Martial Law-This is not possible for a civilian President-Held: Power under Article 58(2)(b) pertained to late President and it need not be stretched any further to make confusion worse confounded-¬ Held further: Historical perspective, vicissitude of constitutional developments and Constitution do not permit President to dissolve National Assembly. (Per.
A.S. Salam, J). [Pp.544&545]K

(iv) Constitution of Pakistan, 1973–
—-Art. 58(2)(b) read with Article 2-A-National Assembly-Dissolution of-Challenge to-Article 2-A clearly lays down that power and authority shall be exercised through chosen representatives, not through an individual however high, may be President—President is not chosen by people—He is elected by members of Assemblies-In amended form, provision of Article 58(2)(b) is that “in exercise of his functions, President shall act in accordance with advice of Cabinet or Prime Minister”-While interpreting Article 58(2)(b), factual background is not to be lost sight of General Ziaul Haq wanted to become President, to retain base of his power, i.e. command of Army, and also authority to dissolve National Assembly according to his discretion which was granted to him through amendment of Constitution—Held: These powers were personal for (late) President and perished with his sad demise. (Per A.S. Salam,J). [Pp.542,543&544]G,H&J

(v) Constitution of Pakistan, 1973-
—Art. 58 (2)(b)-National Assembly-Dissolution of-Challenge to-Constitution is to be obeyed-Same National Assembly and Provincial Assemblies were good when, not long ago, they elected President but how they beocrae bad so soon?~Creature condemning creator does not sound well-¬Held: Notwithstanding dissatisfaction of President with functioning of Prime Minister or Parliament, reasons for dissolving National Assembly were not good enough under Constitution and principles previously laid down by Supreme Court-Held further No order unseating re-elected members and restoring dissolved Assembly can be passed. (Per A.S. Salam, J). [P.549]R&S

(vi) Constitution of Pakistan, 1973–
-—Art. 58{2)(b)-National Assembly-Dissolution of-Challenge to-Contention that horse trading, corruption, nepotism and not summoning of Council of Common Interests or Finance Commission, all have been taking place in past and even after dissolution of National Assembly, hence these factors could not be made grounds for impugned action-Held: Such an argument may be attractive to gallery but it cannot prevail because once evil is identified, remedial and corrective measures within Constitutional framework must follow. (Majority view). [P.531JD

(vii) Constitution of Pakistan, 1973-
—Art. 58(2)(b)~National Assembly-Dissolution of-Challenge to-Contention that National Assembly being directly elected by people of Pakistan, should not be at mercy of an indirectly elected constitutional functionary howsoever high-Held: This argument may be theoretically sound and plausible, but express words of Constitution make provision for it. (Majority view).(Pp.529&53l]B&C introduction to the Study of Law of Constitution (12th Edition) at page 433, byA.V. Dicey, and “Tlie Prime Minister of India, Powers and Functions”, at pages 48 to 50, by Dr. (Mrs.) Sarla Malik, ref.

(viii) Constitution of Pakistan, 1973-
—-Art. 58(2)(b)–National Assembly-Dissolution of–Challenge to–Defection of elected members has many vices-An elected representative who defects his professed cause, his electorate, his party, his mandate, destroys his own representative character-Fact that there had been defections and defectors were quite often rewarded with posts and prizes, has not been seriously disputed-Persistent requests were made by Provinces for making Council of Common Interests and National Finance Commission as functional with a view to sort out disputes over claims and policy matters, but inspite of intercession of President, no heed was paid and thereby existence and sustenance of Federation was jeopardized-Petition dismissed. (Majority view). [Pp.536&537]E&F

(ix) Constitution of Pakistan, 1973-
—An. 58(2)(b)-National Assembly-Dissolution of-Challenge to-Demeaning status of Senate and Judiciary—Ground of—It is not first time that those at helm of power have demeaned status of Parliament or Superior Judiciary or its members—Institutions they seek to malign, do not fall by their utterances though they suffer in reputation and status—Held: Such actions and remarks do not justify dissolution of legislature. (Per Rustam S. Sidhwa, J). [Pp.573&574]AJ

(x) Constitution of Pakistan, 1973-
—Art. 58(2)(b)–National Assembly-Dissolution of-Challenge to-Dispute about peoples programme—Ground of—Federal Government felt justified in appropriating funds itself under Item 25 of Concurrent Legislative List while Provinces insisted that they may be permitted to appropriate them keeping in view spirit of Article 97 of Constitution-Aggrieved party could have moved Supreme Court-Held: This matter did not give President a valid basis to dissolve Assembly. (Per Rustam S. Sidhwa, J). [P.574]AK

(xi) Constitution of Pakistan, 1973–
—Art. 58(2)(b)-National Assembly-Dissolution of-Challenge to—Failure to call meetings of Council of Common Interests and National Finance Coimmission-Ground of–Extreme polarisation and political confrontation between both parties, could not totally relieve coalition Government from complying with provisions of Constitution-Held: This matter did constitute proper ground which President could have taken into consideration while forming opinion and it had nexus with breakdown of constitutional machinery. (Per Rustam S. Sidhwa, J). [PP.568&570JAE&AF

(xli) Constitution of Pakistan, 1973-
—Art. 58(2)(b)–National Assembly-Dissolution of-Challenge, to-Failure to discharge substantive legislative functions-Ground of-Out of fifty Ordinances and Bills presented before National Assembly, only fifteen could be passed by Parliament and almost all, except Finance legislation, were amendment Acts- In view of ingrained polarised atmosphere, there appeared little hope for any change-Held: It was a basic situation leading to breakdown of Constitutional machinery and one having a direct nexus with Article 58(2)(b) of Constitution. (Per Rustam S. Sidhwa, J). [Pp.563&564]W,X&Y

(xiii) Constitution of Pakistan, 1973-
—Art. 58(2)(b)–National Assembly-Dissolution of–Challenge to–Failure to perform legislative functions-Ground of–Allegation that Government of Peoples Party was not able to discharge substantial legislative functions except adoptation of finance bill, is vague ii^ nature-It was not shown that any contravention was made of Constitutional provision which requires that a particular minimum number of bills and laws is to be passed within stipulated time by National Assembly which it failed to do-Held: This ground in itself is insufficient to dissolve National Assembly. (Per Sajjad Ali Shah, J). [P.584JAO

(xiv) Constitution of Pakistan, 1973–
—Art. 58(2)(b)-National Assembly-Dissolution of-Challenge to-Held: Grounds of corruption and- nepotism in Federal Government; misuse for political ends of statutory corporations, authorities and banks; and undermining Civil Services of Pakistan, not only independently but collectively also are not sufficient to justify dissolution of Assemblies. (Per Sajjad Ali Shah, J). [P.589JAP

(xv) Constitution of Pakistan, 1973–
—Art. 58(2)(b)-National Assembly-Dissolution of-Challenge to-Horse trading, corruption, inducement, nepotism etc.—Ground of—By defection, a member basically violates very spirit of teachings and requirements of Islam and can only be treated as a negation of spirit of Constitution which he is bound to preserve and protect-Horse trading is a highly pernicious, immoral and un-ethical act which must be openly condemned-In view of open confrontation between Coalition Government and Combined Opposition, both attempted to dislodge each other and contributed to defection and horse trading-No Parliamentary, practice permits defection or horse-trading-Held: This ground can reasonably be treated as reflective of serious functional dislocation of a coalition government and would justify opinion formed by President for dissolution of Assembly. (Per Rustam S. Sidhwa, J). [Pp.564,566&567]Z/iA,AB&AC

(xvi) Constitution of Pakistan, 1973–
—Art. 58(2)(b)-National Assembly-Dissolution of-Challenge to-Horse-trading—Ground of—At time of dissolution order, no action could be taken against members who crossed floor, under law which was in force then-Held: It cannot be made a ground for dissolution of National Assembly-Held further: If horse-trading was not caught within mischief of law before dissolution order was passed- and was considered morally wrong, then judicial notice can be taken to effect that same horse-trading continues now but is being officially ignored. (Per Sajjad Ali Shah, J). [P.584JAN

(xviij Constitution of Pakistan, 1973–
—-Art. 58(2)(b)-National Assembly-Dissolution of~Challenge to-If one or more grounds were not well founded, whether order could be struck down as a whole or could be sustained on remaining grounds-Question of~Rule with regard to detention matters cannot be applied to strike down whole order of President on ground that one or more of grounds which were considered by him when forming his opinion, were not well founded or non-existent while remaining grounds, any of which could have been a good reason for dissolution, were not individually or collectively good reasons on which he could have formed his opinion. Held: It would amount to substituting opinion of court for that of President, which cannot be permitted. (Per Rustam S, Sidhwa,J). IPP.562&563]U&V

(xviii) Constitution of Pakistan, 1973—
—Art. 58.(2)(b)—National Assembly—Dissolution of-Challenge to—Interference in Services—Ground of—Services have over years been subjected to manifold illegal interference by administration itself either acting under legislative will or extra-legal interference from elected representatives, but no breakdown of Constitutional machinery has occurred placing any ruling Government vulnerable to dismissal—Held: Interference with Services cannot be justified and must be unequivocally condemned, but it cannot be permitted to justify dissolution of legislature. (Per Rustam S. SidhwaJ). [P.573JAH

(xix) Constitution of Pakistan, 1973-
—Art. 58(2)(b)-National Assembly-Dissolution of-Challenge to-In 1988 elections, Pakistan Peoples Party appeared as single largest party and made coalition Government and had its Governments in Sindh and N.W.F. Province- -There was open political confrontation and polarisation and it could not get working support from Combined Opposition-Its ability to legislate became highly impaired and it was not able to allow Council of Common Interests and National Finance Commission to discharge their functions-Both sides continued horse-trading unabated so as to grab each other’s members—All these facts clearly showed that partial dislocation of Constitutional machinery had set in and breakdown wasimminentwhich justified President in taking step to call upon electorate to re-elect National Assembly to remove stalemate-

Held: Judgment of Lahore High Court is not open to interference—
Petition dismissed. (Per Rustam S. Sidhwa, J [Pp.574,575&576]AL&AM
(xx) Constitution of Pakistan, 1973—
-—Art. 58(2)(b)–National Assembly-Dissolution of–Challenge to–IJ.I also indulged in horse-trading or luring away members of National Assembly, but this aspect was ignored-Government of I.J.I. in Punjab created practical difficulties for Federal Government, but this aspect was not considered-After dissolution of National Assembly, Leader of Opposition, who had lost election in Sindh, was appointed as Care-taker Prime Minister-Mr. Nawaz Sharif of I.J.I. was allowed to continue as Care-taker Chief Minister of Punjab, while in Baluchistan, son-in-law of Akbar Bugti and in Sindh Jam Sadiq Ali, a dissident member of PPP were appointed Care-taker Chief Ministers—No references were filed against Ministers or representatives of any other political party except PPP—Held: Impugned order of dissolution inherently suffers from mafaftdes-tteld further: Object behind order of dissolution was not only that Government of that time be toppled but also to tarnish image of PPP in eyes of people so that it should be routed in election and not return to power again. (Per Sajjad Ali Shah, J). [P.590JAQ&AR

(xxi) Constitution of Pakistan, 1973-
—Art. 58 (2)(b)-National Assembly-Dissolution of-Challenge to- Misappropriation of Secret Service Funds-Ground of-Presidential References have also been filed against certain members of Parliament for misappropriation of Secret Service Funds—Held: This matter did not give President a firm basis to form opinion regarding breakdown of Constitutional machinery. (Per Rustam. S. Sidhwa.J). [P.568JAD

(xxii) Constitution of Pakistan, 1973-
—Art. 58(2)(b)-National Assembly-Dissolution of-Challenge to-National Assembly can only be dissolved when President and Cabinet acting together, fail to carry on government of federation in accordance with Constitution- President has not said that he had failed to carry on government of federation in accordance with provisions of Constitution—There was no breakdown of Constitution-If there were defaults or defects, violation of law, these were matters to be attended to by President and his Cabinet-Held: President cannot throw bucket, dissolve National Assembly and call Nation in 20 months’ time to go back to polls. (Per A.S. Salam, J). [Pp.546&547]M

(xxiii) Constitution of Pakistan, 1973-
—Art. 58(2)(b) read with Art. 112 (2)(b)-National Assembly-Dissolution of-Challenge to—Non-compliance of general law, failure to hold or call meetings under provisions of general law, misuse of authority or resources of Federation or of Provinces or of statutory or autonomous bodies, unauthorised or irregular interference in Service matters and disruption in their regular and orderly working, some failure to maintain law and order, or resultant effects arising from such situations such as climate of uncertainty, sense of insecurity created at different levels of administration, rejection by people of some actions of party in power, creation of some threats to law and order, and weakening of judicial process, would not normally provide, grounds for action under Articles 58(2)(b) or 112 (2)(b) of Constitution. (Per Rustam. S. Sidhwa, J. [Pp.561&562]T

(xxiv) Constitution of Pakistan, 1973-
—Art. 58(2)(b)–National Assembly-Dissolution of-Challenge to-Order of dissolution passed by President is not sustainable under provisions of Constitution-Held: Verdict of people in elections should have been accepted and government with slight majority which had to function with inherent set¬ backs and limitations, should have been allowed to complete its tenure with corrective and remedial measures taken appropriately according to provisions of Constitution and law-Held further Relief of restoration of National Assembly cannot be granted because after dissolution of Assembly, election took place with full participation of political parties including Ms. Benazir Bhutto who is now leader of opposition in present parliamentary set-up-Leave refused. (Per Sajjad Ali Shan, J). [pp.590&591]AS&AT
PLJ1989SC170re/.

(xxv) Constitution of Pakistan, 1973-
—Art. 58(2)(b) read with Article 46 and 48(2)-National Assembly-Dissolution of–Challenge to-Reading two articles together “Government of Federation” is to be carried on by President with aid and advice of Cabinet headed by Prime Minister~If “government of federation” is not being carried on in accordance with Constitution, fault is that of President and Cabinet-If there are differences between President and Cabinet, Constitution provides mechanism for their solution-Held: If all efforts of President fail, he should think that he may be wrong than that all representatives of people are wrong. (Per A.S. Salam.J). [P.546JL

(xxvi) Constitution of Pakistan, 1973-
—-Art. 58(2)(b)-National Assembly-Dissolution of–Challenge to-Sindh situation—Ground of~It is not case of Federal Government that Army or other para-military forces were utilized on a rigged or partisan basis or that Sindh Government was using its machinery in a partisan manner to let off law breakers belonging to its political partners or clamping down on those belonging to its opponents-Held: Sindh situation did not give any valid basis to President to form an opinion to dissolve National Assembly. (Per Rustam S. Sidhwa, J). (P.572JAG

(xxvii) Constitution of Pakistan, 1973-
—Art. 58(2)(b)-National Assembly-Dissolution of-Challenge to-When National Assembly was dissolved on 6th August, 1990, Provincial Assemblies of two Provinces were dissolved allegedly with approval of President while in other two Provinces, Assemblies were dissolved by Governors on advice of Chisf Minister of respective province—Held: Fact that all Assemblies were simultaneously dissolved, shows that Constitution was being taken as if it provided a unitary form of Government which obviously it did not do 9Per A.S.Salam, J). [P.547JN

Raja Muhammad Anwar, Senior Advocate, Supreme Court, S. Iftikliar Gilani and Mr. Sharif Hussain Bokhari, Advocates, instructed by Mr. SalimA. Malik AOR for Petitioner.
Mr. Aziz A. Munshtl Attorney General for Paksitan, S. Sharifiiddin Pirzada,
Senior Advocate, Supreme Court, Ch. Ejaz Ahmad, Deputy Attorney
General, Mr. Nizam Ahmad, Deputy Attonery General, Mr. M. Akram
Shaikh, Advocate, Supreme Court, instructed by Ch. Fazle Hussain, AOR for Respondents.

Dates of hearing: 2, 3 and 4.11.1991

JUDGMENT

Shafiur Rahman, J.-By a short Order dated 4th of November, 1991 the Civil Petition for Leave to Appeal against the judgment of the High Court dated 14.10.1990 was dismissed for reasons to be recorded later on. Hereunder are the facts of the case and the reasons for dismissal of the Petition and refusal of the leave to appeal:–

The President of Pakistan by an Order under Article 58(2)(b) of the Constitution on 6th August, 1990 dissolved the National Assembly in exercise of his discretion as, according to him, a situation had arisen hi which the Government of the Federation could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate had become necessary. The formal Order which was Gazetted is reproduced hereunder in extenso:—

“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:–

(«) The utility and efficacy of the National Assembly as a representative institution elected by the people under the Constitution, and Us 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 deadlock, 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 also not been allowed to function in this regard as required by Articles 153 and 154, and in relation to Articles 155 and 161.

(ii) The National Finance Commission under Article 160 has never been ailled 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.

(iv) The Senate, svhich 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 (o 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 Sindh against internal disturbances and to ensure that the Government of the 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:–

(i) The Superior Judiciary has been publicly ridiculed and its integrity attacked and attempts made to impair its independence.

(ii) 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.”

This Order of the President of Pakistan was challenged amongst others by the Petitioner Khawaja Ahmad Tariq Rahim who was, earlier to the impugned Order, a Federal Minister of Parliamentary Affairs in the Government of Pakistan. The grounds taken up in the Writ Petition were, generalities apart, the following:–

(1) The words “discretion” and “opinion” used in sub-Article (2) of Article 58 of the Constitution were meant to satisfy an objective test and not a subjective test;
(2) The High Court in the case of Muhammad Sharif versus Federation of Pakistan (PLD 1988 Lahore 725) and Supreme Court in the case of Federation of Pakistan versus Muhammad Saifullah Khan (PLJ 1989 Supreme Court 170) had not only held that this discretion and opinion formation had to satisfy the objective test but also proceeded to hold that there must be a complete break down of the constitutional machinery,
(3) The discretion exercised by the President in passing the impugned order was arbitrary, unjust, capricious and mala-flde and against the spirit of the Constitution and democratic system;
(4) The matters which were subjudice in courts in one form or the other e.g., failure to summon a meeting of the Council of Common Interests, and the case of Mr. Ihsanul Haq Piracha could not be made the basis for the impugned action;
(5) The grounds taken up were factually incorrect and insufficient for the action taken.
A larger Bench of the Lahore High Court, heard this Constitution Petition and others instituted, on transfer to it, on the same subject. After affording full hearing to the parties, a short order was passed by the High Court on 14.10.1990. The operative part of it, so far as relatable to the impugned order, was as hereunder:–

“After having considered the arguments of the learned counsel for the parties and perusal of the material placed by them on the record, we find that the President was justified in forming 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 was necessary. This opinion could validly and reasonably be formed from, amongst others, the following acts of commission and omission of the Federal Government:—

(i) No substantial legislative work had been and could be carried on by the Government in the National Assembly inter alia for the reason that the Government had virtually no representation in the Senate. During its twenty months’ tenure, out of fifty Ordinances/bills presented before the National Assembly only fifteen could be passed by the Parliament while the remaining thirty five were not processed and allowed to lapse.

(ii) The Federal Government miserably failed to perform its obligation under Article 148(3) of the Constitution to protect the Privince of Sindh against internal disturbances which continued unabated and assumed serious proportions beyond the control of the Provincial Government. Despite repeated advice of the President, clear view expressed by the Governer of Sindh and opinion of the then Attorney General, resort to the provisions of Article 245 of the Constitution was not made resulting in colossal loss of life and property thereby endangering the integrity and solidarity of Pakistan.

(iii) The Constitution envisages Pakistan as an Islamic Federal Republic, wherein the Federal Government and the Federating Units have well defined powers and sphere of operation. A mechanism is in¬built in the Constitution to resolve disputes between the federation and its units and between the units inter se. Inaction on the part of the Federation in resolving such disputes may endanger the federal structure of the Stale itself. In this regard one of the important institutions is the Council of Common Interests constituted under Atricle 153 of the Constitution. It formulates and regulates policies in relation to matters in Part-II of the Federal Legislative List and entry 34 (Electricity) in the Concurrent List (refere Article 154), supervises and controls the related institutions and is also required to determine the rates at which net profits are to be calculated in terms of Article 161. The documents on record reveal that the Federal Government despite repeated demands by three out of four federating units and unanimous resolution of the Senate, failed to call a meeting of the Council of Common Interests resulting in polarisation and confrontation between the Federation and two federating units which eventually obliged them to file a suit against the Federation in the Supreme Court of Pakistan.

(iv) The formation of the National Finance Commission, another important institution, required to be set up under Article 160 of the Constitution for distribution of revenues between the Federation and the Provinces was unnecessarily delayed with the result that not a single meeting could be convened thereby depriving the federating units to have redress of their grievances.

(v) The provincial autonomy guaranteed by the Constitution was eroded by launching People’s Works Programme in a manner contrary to Article 97 of the Constitution without any legislative backing.

(vi) Article 14 of the Constitution guarantees that the dignity of man and, subject to law, the privacy of home shall be inviolable. This fundamental right was flagrantly violated and disragarded by tapping the telephones of highly respected persons, including dignitaries like the Chairman of the Senate and Speaker of National Assembly. Even the members of the Government party were not spared, petitioner being one of those whose telephones were tapped.

(vii) Important Constitutional organs of the State like the Senate and Superior Judiciary were publically ridiculed and brought into disrespect. Even the legal existence and validity of the Senate was disputed by the Federal Government.

(viii) Misuse by the Federal Government of Secret Service Funds running into crorcs of rupees and unauthorized use of aircrafts belonging to PAF and PIA for transportation of MNAs at the lime of No Confidence Motion.

(ix) Wholesale and indiscriminate appointments in the Civil Services of Pakistan and the Services under the Statutory Corporations in violation of law.

The controversy arising in this appeal is substantially narrowed down by the fact that both the parties are agreed that the law laid down by this Court in Federation of Pakistan vs. Haji Muhammad Saifullah KJtan (PLJ 1989 S.C. 170) should be applied, as none challenges or questions its soundness or applicability. The petitioner wants to avail of two principles of law laid down therein. The first is the justiciability of such an order on the yardstick of an objective criteria. The second is the exact objective criteria required for sustaining such an order of dissolution. For the first principle reliance has been placed on the following observations in Haji Muhammad Saifitllali’s case (PLD 1989 S.C. 166) at page 212 of the report:-

There is no express ouster clause in the Constitution with regard to the exercise of this power by the President. Whatever ouster could be implied by the use of the expressions “in his discretion” and “in his opinion” stands removed by the use of non obstante clause “notwithstanding”, thereby excluding the application of ouster clause contained in Article 48(2) excluding Courts’ jurisdiction generally where the powers reserved for the President to be exercised in his discretion are concerned. Additionally the existence of jurisdictional facts capable of judicial ascertainment and adjudication was made a precondition for the exercise of this power. Not to test the exercise of this power by reference to these constitutionally prescribed jurisdictional facts, namely:-

(i) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution; and

(ii) an appeal to the electorate is necessary;would in fact amount to a failure to discharge a duty ordained by the Constitution itself.”

For the second principle the reliance has been placed on the following two observations contained in the same judgment:—

(i) “Thus the intention of the law-makers, as evidenced from their speeches and the terms in which the law was enacted, shows that any order of dissolution by the President can be passed and an appeal to the electorate made only when the machinery of the Government has broken down completely, its authority eroded and the Government cannot be carried on in accordance with the provisions of the Constitution.”

(ii) The Expression “cannot be carried on” sandwiched as it is between “Federal Government” and “in accordance with the provisions of the Constitution”, requires a very potent, a very positive and a very concrete content. Nothing has been left to surmises, likes or dislikes, opinion or view. It does no concern itself with the pace of the progress, the shade of the quality or the degree of ihe performance or the quantum of the achievement. It concerns itself with the breakdown of the Constitutional mechanism, a stalemate, a deadlock in ensuring the observance of the provisions of the Constitution.”

According to the learned counsel for the Petitioner if the law so laid down is applied to the facts of the case under consideration then the impugned Order cannot stand because there was no breakdown of the constitutional machinery, no impasse or stalemate to paralyse the functioning of a constitutional Government in the country. Additionally, the learned counsel contended that even if such a situation existed, there were alternative powers for the President to which resort could be had. In this connection he has referred to Article 233 – Proclamation of Emergency; Article 184(1) – Resort to original jurisdiction of Supreme Court in any dispute between any two or more Governments; Section 131-A of the Criminal Procedure Code – Power to use military force for public security and maintenance of law and order. According to him, without availing of any of these alternatives, direct resort to such an extreme measure cannot be constitutionally justified.

The learned Attorney General has, on the other hand, attempted to demonstrate the factual correctness of the grounds invoked for dissolving the National Assembly, its nexus with the power conferred on the President, and the imminence and gravity of situation prompting the exercise of such a power by him.

Mr. Sharifuddin Pirzada, Senior Advocate, appearing for the Federal Government Has presented before us the historical perspective in which the expressions “situation has arisen” and “Government cannot be carried on in accordance with the Constitution” came to be used so as to give a specific meaning and connotation to them. He has referred to exercise of similar power of dissolution of elected assemblies in India, Australia and the restraint exercised by the Courts in testing meticulously the factual correctness of the grounds made the basis for such an action. He has also pointed out that an identical challenge to the impugned order of dissolution did not succeed in High Court of Sindh in KJtulid Malik and others versus Federation of Pakistan and others (PLJ 1991 Karachi 1(FB)). The judgment has become final as no appeal was preferred against it. It would operate as res judicata on the strength of decision given by this Court in Pir Baksh represented by his legal heirs and others versus Tlie Chairman, Allotment Committee and others (PLJ 1987 S.C. 181).

There are three general arguments advanced by the learned counsel for petitioner which need attention at this stage before taking up the specifics. The first was that there were available to the President other alternative constitutional remedies before resorting to this or such a drastic step. In advancing this argument a misconception with regard to the constitutional powers enjoyed by (he President in his discretion and by the Prime Minister has been exhibited. All the alternative powers referred to arc cxercisable by the President only on the advice of the Prime Minister and not in his discretion. It is not for the President to seek advice of the Prime Minister and to obtain one. Nor is it open to the courts to examine what advice, if any, was given and how it was received. None of the powers, be it under Article 186(1), or Article 233(1) or Article 184(1) of the Constitution or even section 131-A of the Criminal Procedure Code is exercisable by the President in his discretion. So there are no alternative remedies available to the President but these alternative remedies are available to the Prime Minister.

The second argument addressed was that the National Assembly is the only instrumentality of State directly elected by the people of Pakistan. Such an elected body should not be at the mercy of an indirectly elected constitutional functionary howsoever high. This or such an argument may be theoretically sound and . plausible. However, the express words of the Constitution make provision for it. Ours is not the only country where the power is so reserved. The legal and moral basis for reserving or reposing such a power and the occasional exercise of it have been illustratively described by A.V. Dicey in his book “Introduction to the Study of the Law of the Constitution” (12th Edition) at page 433 as hereunder:–

“This looks at first sight like saying that in certain cases the prerogative can be so used as to set at naught the will of the nation. But in reality it is far otherwise. The discretionary power of the Crown occasionally may be, and according to constitutional precedents sometimes ought to be, used to strip an existing House of Commons of its authority. But the reason why the House can in accordance with the constitution be deprived of power and of existence is that an occasion has arisen on which there is fair reason to suppose that the opinion of the House is not the opinion of the electors. A dissolution is in its essence an appeal from the legal to the political sovereign. A dissolution is allowable, or necessary, whenever the wishes of the legislature are, or may fairly be presumed to be, different from the wishes of the nation.

This is the doctrine established by the celeberated contests of 1784 and of 1834. In each instance the King dismissed a Ministry which commanded the confidence of the House of Commons. In each case there was an appeal to the country by means of a dissolution. In 1784 the appeal resulted in a decisive verdict in favour of Pitt and his colleagues, who had been brought into office by the King against the will of the House of Commons. In 1834 the appeal led to a verdict equally decisive against Peel and Wellington, who also had been called to office by the Crown against the wishes of the House. The essential point to notice is that these contests each in effect admit the principle that it is the verdict of the political sovereign which ultimately determines the right or (what in politics is much the same thing) the power of a Cabinet to retain office, namely, the nation.

Much discussion, oratorical and literary, has been expended on the question whether the dissolution of 1784 or the dissolution of 1834 was constitutional [See Emden, The People and the Constitution (2nd ed., 1956) pp.194-196,197–201.–ED]. To a certain extent the dispute is verbal, and depends upon the meaning of the word “constitutional”. If we mean by it “legal”, no human being can dispute that George the Third and his son could without any breach of law dissolve Parliament. If we mean “usual”, no one can deny that each monarch took a very unusual step in dismissing a Ministry which commanded a majority in the House of Commons. If by “constitutional” we mean “in conformity with the fundamental principles of the constitution”, we must without hesitation pronounce the conduct of Geogee the Third constitutional, i.e. in conformity with the principles of the constitution as they are now understood. He believed that the nation did not approve of the policy pursued by the House of Commons. He was right in this belief. No modern constitutionalist will dispute that the authority of the House of Commons is derived from its representing the will of the nation, and that the chief object of a dissolution is to ascertain that the will of Parliament coincides with the will of the nation. George the Third then made use of the prerogative of dissolution for the very purpose for which it exists. His conduct, therefore, on the modern theory of the constitution, was, as far as the dissolution went, in the strictest sense constitutional. But it is doubtful whether in 1784 the King’s conduct was not in reality an innovation, though a salutary one, on the then prevailing doctrine”.

A more recent version of the same is found in the book ‘The Prime Minister of India: Powers and Functions” by Dr. (Mrs.) Sarla Malik at pages 48 to 50 in the following words;–

“The Prime Minister can also be dismissed if he stays in office by misusing his powers, and in very exceptional circumstances, if his stay in office is nol considered in the national interest by the President. In such circumstances, the President can dismiss him even if he commands a majority in the Lok Sabha. This course of action was adopted by Sir John Kerr, ihe Governor-General in Australi’a in November 1975. Even in Germany under the Weimar Republic President Hindenburg dismissed the Chancellor of the Reich, Brunning, in May 1932, though he was in command of a majority in the Reich, and his term was still to run for two more years For instance, after the dismissal of the Labour Ministry,headed by Gough Whitlam, and the appointment of the Liberal Ministry, headed by Malcolm Fraser, by Sir John Kerr, the then Governor-General of Australia in November 1975, fresh elections were held in December 1975, after dissolving the Senate and the House of Representatives. Fraser’s Liberal Party Coalition got a majority in both Houses of Parliament. This shows that the assessment of the political situation by the Governor-General was correct and his action was upheld by the electorate. On the other hand, if the assessment made by the Governor-General had proved wrong, and the electorate had again voted to power the Labour Party of Goughwhitlam, the position of the Governor-General would have been really difficult. It will not be out of place to mention here that Dharma Vira, who had dismissed United Front Ministry, headed by Ajoy Mukherjee, had to leave West Bengal when the United Front was voted back to power in 1968. Similarly, Marsha! Macmohan in France had to resign in 1877 for dismissing the Ministry, which came back to power…….. The power of dismissing the Prime Minister may be viewed in the perspective that if the Council of Ministers is bent upon subverting the constitution, the President has certain reserve powers, and is obliged by his oath to exercise them”.

The specific power, the jurisdictional requirement all being provided in our! Constitution, it is not necessary to either go back deep into history or to infer air’ residual but necessary power of the President in the matter.

The third general argument, contained more in writing than addressed orally could be summed up as that the horse trading of elected representatives, corruption and nepotism, violations of individual constitutional provisions e.g., not summoning Council of Common Interests or Finance Commission, all have been taking place in the past and even after the dissolution of the National Assembly. Hence, these factors could not be made the grounds for the impugned action. Such an argument may be attractive to the gallery but it cannot prevail because once the evil is identified, remedial and corrective measures within the constitutional framework must follow. Public functionaries, holding public power in trust, under oath to discharge the same impartially and to the best of their ability must react. They cannot and must not remain silent spectators.

The power invoked by the President is enshrined in Article 58(2)(fe) of the Constitution, the relevant portion of which reads as hereunder:–

“58(1)………………………………………………………………………………………… ,
(2) Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion-
(a) …………….. …-……………. •……. -… –
(b)a situation has arisen in which the Government of tbe Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary”.Article 48 of the Constitution provides for the manner of exercise of various constitutional functions by the President. The portion relevant to the question under discussion is as hereunder:–

“48. President to act on advice, etc,~(l) In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet or the Prime Minister:

Provided that the President may require the Cabinet or, as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

(2) Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever.
(3) Omitted.
(4) The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister or Minister of State shall not be inquired into in, or by, any Court, tribunal or other authority.
(5) Where the President dissolves the National Assembly, he shall, in his discretion,–
(a) appoint a date, not later than ninety days from the date of the dissolution, for the holding of a general election to the Assembly, and
(b) appoint a care-taker Cabinet.
(6)
(7) …………………………………..
In the Third Schedule of the Constitution are contained the Oaths prescribed for the President, the Prime Minister, the Ministers and the Members of the National Assembly. A feature common to all the oaths is the duty to “preserve, protect and defend the Constitution of the Islamic Republic of Pakistan”.
Coming now to the specifics, the jurisdictional requirement for an action under Article 58(2)(b) of the Constitution is 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”. Section 45 of the Government of India Act, 1935 contained this expression hi the following words:–

“45.(1) If at any time the Governor-General is satisfied that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of this Act, he may by Proclamation:-

(a) declare that his functions shall to such extent as may be specified in the Proclamation be exercised by him in his discretion;
(b) assume to himself all or any of the powers vested in or exercisable by any Federal body or authority.
This provision was commented upon by the authors of “the Constitutional Law of India & England”, i.e. J.N. Varma and M.M. Gharekhan, as hereunder:–

“Break-down of the Constitution
569. When this act was on the anvil, Parliament expressed the opinion that the safe running of the Government of India must be sufficiently ensured. A situation might arise in which the working of the Constitution as laid down by the Act was either impracticable or impossible. It is with a view to meet such a situation that Section 45 has been enacted. The wording of this provision, it must be remarked, is both unique and unusual. There is no precedent for it either in England or the Federal Dominions or the United States of America; and the use of the term
‘Constitutional Machinery’ is altogether novel to Constitutional Law………………. The section which can be described as a ‘break-down section’, makes a detailed provision with a view not to turn the Federation into something like permanent dictatorship. Parliament will have a very close control of the situation. From the point of view of the Indian States also it was thought highly desirable that the exercise of these emergency powers did not become permanent.
This section, it will therefore be seen, was enacted after keeping many constitutional and emergent points in view. First of all, a view was kept in mind that Parliament should keep a check on any renewal. Secondly, it was necessary not to jeopardise the position of the States; thirdly, the assumption of all the powers by the Governor-General should not be permanent; fourthly, the other Federal Organs which would not otherwise be affected by the break-down of the constitution, should be allowed to function; fifthly, the Federal Court should not be allowed to be affected by the suspension of the constitution.”
In a note appearing in Seervai-Basu’s Commentary on the Constitution of India Sixth Edition Volume ‘O’ (1989-Silver Jubilee Edition) at page 17 following remarks with regard to scope and meaning of this expression are made:–
“This is the sense in which the Joint Parliamentary Committee on Indian Constitutional Reform (1933-34), Vol.1, para.109, explained the proposed provision in Section 93 in the Government of India Act, 1935, where similar power to assume sole responsibility for the administration of the Province had been conferred on the Governor, in case of a breakdown of the machinery of the Provincial Government, in whole or in part.See also the earlier Report of the Simon Commission, Vol.II (para.65), where the two expressions ‘break-down of the constitutional system’ and ‘the Government of a province cannot be carried out in accordance with the provisions of the Statute’ were used as referring to the same situation, and as instances of such situation were mentioned–‘complete inability to form or maintain in office any Ministry enjoying support from the Legislature’s wide-spread refusal to work the normal constitution of the province, or general adoption of a policy which aimed at bringing Government to a standstill’.
While introducing Draft Art.278 (now Art.356), Dr. Ambedkar explained that he was introducing a provision ‘analogous to Section 93 of the Government of India Act, 1935’, to meet a ‘break-down of the constitutional machinery’ (IX C.A.D., 132-33,177)”.
This expression received a fuller attention by the framers of the Indian Constitution who confined it to the provincial sphere only (Article 356 of the Indian Constitution):-
(/< ) Even if one seeks to exclude the marginal note of Art.356 and confine the interpretation to the words (failure to carry on the Government of the State) 'in accordance with the provisions of the Constitution' it would not refer to the failure to comply with particular provisions of the Constitution, but the failure to maintain the 'form of the Constitution', which, in relation to the Provincial part of the Constitution, meant the form of 'responsible Government', as Krishnaswami Ayyar explained. (//'/') The foregoing narrow interpretation would also follow from the premises explained by the framers of the Constitution themselves that Art.356 (draft Art.278) was a corollary or adjunct to the duty of the Union under Art.355) (draft Art.277A) and that Art.355 had been drafted on the model of Art.IV(4) of the Constitution of the U.S.A., which enjoined the United States to guarantee to every State in the Union "a republican form of Government". Broadly speaking, that expression has been understood to mean "a form that, as distinguished from aristocracy, monarchy, or direct democracy, rests on the consent of the people and operates through representative institutions". If that be so, neither the provisions in Art.IV(4) of the American Constitution nor Art.355 of the Indian Constitution (can be used to subvert the normal system of Government in a State on the plea of violation) of particular provisions of the Constitution, short of break-down of the constitutional machinery or form of representative and responsible Government". This much for the background of the constitutional power, its scope and meaning in the past and in the contemporary decisions outside Pakistan. In HajiMuhammad Saifiillah KJian's case (PLJ 1989 S.C. 170) our constitutional provision has received full attention and its meaning and scope authoritatively explained and determined. It is an extreme power to be exercised where there is an actual or imminent breakdown of the constitutional machinery, as distinguished from a failure to observe a particular provision of the Constitution. There may be occasion for the exercise of this power where there takes place extensive, continued and pervasive failure to observe not one but numerous provisions of the Constitution, creating the impression that the country is governed not so much by the Constitution but by methods extra-constitutional. The very first ground disclosed in the dissolution order is the utility and efficacy of the National Assembly as a representative institution being defeated by- (/) internal dissensions and frictions; (//') persistent and scandalous horse trading; (HI) corrupt practices, inducement; (/v) failure to discharge substantive legislative business; and (v) National Assembly having lost the confidence of the people. The objection of the petitioner to this ground is two fold. Firstly, that the express words of the Constitution talk of Government and not of National Assembly. For that reason an entirely extraneous consideration has been kept in view. Secondly, factually all that has been mentioned as a fact is not correct. The word "Government" has not been defined in the Constitution. Black's Law Dictionary defines it as "the whole class or body of office holders or functionaries considered in the aggregate upon whom devolves, the executive, judicial, legislature and administrative business of the State". While interpreting President's Order I of 1970, the Lahore High Court in Master KJmsrow Amir Ktian Niazi v. Province of Punjab and 2 others (PLJ 1975 Lahore 147) held as hereunder:-- "It may also be observed in this connection that under clause (b) of subsection (1) of Section 20 of the President's Order No.l of 1970 the President can by order make suitable provisions for "the Government and administration of the Islamabad Capital Territory". The President's Order 12 of 1971 has, inter alia, been made in pursuance of the provisions of clause (b) of subsection (1) of Section 20 of President's Order I of 1970. The term "Government" used in the above mentioned provisions includes the exercise of legislative functions. This becomes all the more clear because the term "Government" has been employed in addition to and apart from the term "administration", in the above provision. As explained by the Supreme Court in Iftikharuddin v. Muhammad Sarfraz (PLD 1961 S.C. 585), the word "Government" includes in its ordinary connotation, legislative, judicial and executive functions, and the ordinary connotation should be adopted in the absence of any indication to the contrary. There is nothing in the President's Order I of 1970 which indicates any contrary intention". There is no reason why the word "Government" used in Article 58(2) of the Constitution be given a restricted or a different meaning. The preamble to our Constitution prescribes that "the State shall exercise, its powers and authority through the chosen representatives of the people". Defection of elected members has many vices. In the first place, if the member has been elected on the basis of a manifesto, or on account of his affiliation with a political party, or on account of his particular stand on a question of public importance, his defection amounts to a clear breach of confidence reposed in him by the electorate. If his conscience dictates to him so, or he considers it expedient, the only course open to him is to resign, to shed off his representative character which he no longer represents and to fight a re-election. This will make him honourable, politics clean, and emergence of principled leadership possible. The second, and more important, the Political sovereign is rendered helpless by such betrayal of its own representative. In the normal course, the elector has to wait for years, till new elections take place, to repudiate such a person. In the meantime, the defector flourishes and continues to enjoy all the wordly gains. The third is that it destroys the normative moorings of the constitution of an Islamic State. The normative moorings of the Constitution prescribe that "soverignty over the entire universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust" and the State is enjoined to "exercise its powers and authority through the chosen representatives of the people". An elected representative who defects his professed cause, his electorate, his party, his mandate, destroys his own representative character. He . cannot on the mandated constitutional prescription participate in the exercise of State power and Authority. Even by purely secular standards carrying on of the Government in the face of such defections, and on the basis of such defections, is considered to be nothing but "mockery of the democratic constitutional process". The other enumerated evils contained in first ground precede, accompany or follow the defection. That there had been taking defections has not been seriously disputed, nor the fact that the defectors were quite often rewarded with posts and prizes. As regards the second ground, we find sufficient correspondence on record lo indicate that persistent requests were made by the Provinces for making functional the constitutional institutions like Council of Common Interests, National Finance Commission with a view to sort out disputes over claims and policy matters concerning the Federation and the Federating Units as such. Inspite of the intercession of the President, no heed was paid, constitutional obligations were not discharged thereby jeopardizing the very existence and .sustenance of the Federation. It is true that some of the grounds like (c), (e)(ii) and (e)(iii) may not have been independently sufficient to warrant such an action. They can, however, be invoked, referred to and made use of alongwith grounds more relevant like (a) and (b) which by themselves are sufficient to justify the action taken. Hence, there is no case on merits for grant of leave to appeal which is hereby refused. Abdul Shakur-ui-Salam, J.--At the conclusion of the hearing the petition was dismissed by a short order dated 4.11.1991, detailed reasons to be given later. I have had the privilege and learnt a lot from the analytical exhaustive treatment by my learned brother Mr. Justice Shafiur Rehman of the questions involved in the petition. In view of the gravity and potentiality of the constitutional interpretation involved in the case I take it as my duty to express my views as I see the vicissitudes through which the country has passed in the constitutional journey, where it stands and how various courses are likely to lead to. 2. It is distressing that a country in the process of whose creation mothers were murdered, sisters enslaved, girls mutilated, boys butchered, whole families slaughtered and millions made to leave their hearths and homes should find itself that inspite of having been given birth under a Parliamentary Statute, Indian Independence Act 1947, with a working constitutional framework provided under the Government of India Act 1935, based on federal principle and parliamentary form of Government, individuals one after another come to take the reins of the affairs of the State for long periods of time without having any mandate from the people of the country. To understand this morass it would be appropriate to look back as Arnold J. Toynbee did in his Study of History to examine the place of existing civilizations with reference to the past civilizations-their growth, disintegration -and the impact they made on the present. It pains me to see how a beautiful country sitting on the shoulders of the sub-continent of India at the foot of Himalaya in the East of green landscape intercepted by rivers and exhuberant people to improve their lot and in the West vast plains irrigated by canals, mighty Indus and mountaineous regions full of minerals with robust people to proceed with confidence to advance to prosperity, has been cut into hajf and its people left frustrated, bewildered, not knowing what might strike them tomorrow. 3. The reason lies perhaps in the flurry and flush of the Independence. It was forgotten that the two principles permeating the creation of the country were federal structure of State and parliamentary form of Government. Principles became victim of passions of people who came to carry on the day-to-day administration of the State. May be Meredith in his Love's Grovees was right;"Passions spin the plot. We are betrayed by what is within". 4. State having been created, for its governance basic legal documents being there, its policies and laws were to be implemented. For this civil servants were employed, to look after the borders military personnel. They performed a clossal task of establishing the machinery of the Government, looking after the citizens and absorbing millions of refugees. But for them it would not have been possible to organize the life of the people of the country. They are entitled to our tribute. I respect them. But what follows is from the deepest and sincerest sentiments that we understand the basic melee so that we can attend to it and all survive. Country's existence is essential to serve or rule. Some of those who reached the lop or occupied key positions out-stripped the bounds of service, succumbed to the temptation to rule, notwithstanding that they were not so endowed as they had sought security of service in early life and were trained to obey and serve. To rule a free people is very different from ruling one's subordinates. 5. On the advent of Pakistan, Quaid-e-Azam Muhammad Ali Jinnah became the Governor General and his right hand man Mr. Liaqat Afi Khan the Prime Minister. After the sad demise of the Quaid. his lieutenant from East Pakistan Kh. Nazim-ud-Din became the Governor General. The Prime Minister was assassinated. The assassin was killed at the spot. A high official of the Police was said to be an instrument of the intrigue. Nothing was done to find out the truth: As in a parliamentary system, the surviving lieutenant of the Quaid-e-Azam, Kh. Nazim-ud-Din stepped down from the ceremonial office of the Governor General and took over the reins of the affairs of the State in his hand as a Prime Minister. He was a noble man. As in a Greek tragedy he did something which turned out to be his undoing. He nominated a man from Account Service Mr. Ghulam Muhammad to be the Governor General. It was understood that the country having attained Independence, it will be governed by the Parliament through the Prime Minister and his Cabinet and the Governor General will be a figure head. The assumption turned out sour. The Governor General who all his life had been adjusting accounts displayed his expertise in managing the men of the establishment. He dissolved the Constituent Assembly functioning as Federal Legislature as well and dismissed the Prime Minister and the Cabinet. Though he himself was paralysed yet inflicted a fatal blow to the nascent constitutional system of the State. Nature has its own ways. Nemises is not far away. The Governor General made his exit but none was told where he was laid under the dust. Major General Sikandar Mirza, Defence Secretary managed to get into the saddle. A new Assembly was elected. It framed the first Constitution of the Islamic Republic of Pakistan in 1956. The Governor General took Oath under it as President to uphold and defend the Constitution. But in two years' time he abrogated the Constitution and handed over the country to the Commander-in-Chief to be put under Martial Law. Though he had hoped to continue to govern when he said to others: go, while the going is good, but little realized that two swords do not sit well in a scabbard. The irony is that he was the first to go as the Commander-in- Chief General Muhammad Ayub Khan whisked him away. He left the country and was buried in alien land. The General assumed the mantle of Presidency and got conferred title of Field Marshal. He promulgated a Constitution, with an odious distinction, that it carried his own name in the preamble, known as Constitution of Pakistan, 1962. Not knowing the ethos of the struggle he thought the genius of the people which was his own by training and habit, that the form of Government of the country should be Presidential. Of course, he did not realize that a Presidential form of Government is a democratic one and rather difficult to run, as the President has only executive authority, no control over Parliament or Congress and can neither manipulate nor dismiss it for ire or non-cooperation. Budget is to be passed by the Parliament and if it does not do or obstructs, the President would be helpless. But the Field Marshal provided in his Constitution that he would have all the executive powers as well as full control over the Parliament, even of its dismissal. The net-result was a dictatorial system. The people had the jibe that like the light-house of a town, Faisalabad all roads lead to the Presidency. However, life has its own limitations. When he fell ill and could carry no more instead of passing the powers under his own Constitution to the Speaker of the National Assembly he asked the Commander-in-Chief General Muhammad Yahya Khan to perform his constitutional duty, who did it by abrogating the Constitution and dismissing the Assemblies and all, put the country under Martial Law. He held elections for new National Assembly but was not prepared to part with power. Eastern wing rebelled. He tried to suppress. The neighbouring country intervened. The Military Commander of the area surrendered. East Pakistan was lost in blood and tears. He was forced by the circumstances to hand over power to the leader of the members of the National Assembly from the Western wing Mr. Zulfiqar Ali Bhutto. The latter first promulgated an Interim Constitution and then got passed with the consent of all the political forces represented in the National Assembly the Constitution of the Islamic Republic of Pakistan, 1973. Having had bitter experience of the past, the Governor General or President dissolving the Parliament, conventions of the parliamentary form of Government were incorporated in the Constitution. It was clearly laid down that the country shall be governed by Parliament through the Prime Minister and the Cabinet. They shall be responsible all the time to the National Assembly and ultimately to the nation. The second principle in the Constitution is that the country shall be a Federation consisting of four Provinces. As a symbol of their unity there shall be a President. The Constitution was in operation for four years only when in 1977 the Chief of the Army Staff who was chosen by the Prime Minister purportedly for loyally to his person, took over the country, put the Constitution in abeyance, dismissed the Government, dissolved the assemblies and imposed Martial Law, himself becoming Chief Martial Law Administrator and little later as President of the country. He hanged the person who had put him in the position. What a life! He ruled the country till 1985 when he got elected people without political affiliations to form a National Assembly. He nominated Mr. Muhammad Khan Junejo as a Prime Minister. He promulgated President's Order No.14 of 1985 Revival of the Constitution of 1973 Order, 1985, making extensive amendments in the Constitution including the power to dissolve the National Assembly and retaining the power to appoint a dale lor lifting of the Martial Law. The new National Assembly realizing that it is better to have the Constitution revived and Martial Law lifted agreed to adopt the amendments made by the Chief Martial Law Administrator/President managing at the same time to soften the rigors of the President's powers as far as possible, hoping that the sword of democles shall not strike soon. But they were disappointed when they were packed and the Assembly dissolved in exercise of the amended powers, in the year 1988. He fixed a date for elections of the new Assemblies. But he could not see them through. He died in an air crash with 29 senior military Officers, a General and the Ambassador of the United States leaving the nation stunned. His successor under the Constitution, Chairman of the Senate Mr. Ghulam Ishaq Khan, took over as the acting President. He held the elections on schedule. The leader of the political party having the majority though not absolute in the National Assembly, Ms. Benazir Bhutto was nominated as Prime Minister. She formed the Government and obtained vote of confidence from the Assembly. It may be noted at this stage that though the action of the late President dismissing the Assemblies was found to be unconstitutional yet the then Assemblies were not restored for the reasons recorded in "Federation of Pakistan v. Haji Saifiillah" (PLJ 1989 SC 170). The members of the newly elected National and Provincial Assemblies elected the acting President as the President. After twenty months, on 6th August, 1990 the President dissolved the National Assembly, and the Governors the Provincial Assembliesc. It is the order of the President in dissolving the National Assembly which is in question. It reads as follows; Dissolution Order "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 dissentions 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 autonomy 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 deadlock, adversely affecting the integrity, solidarity and well-being of Pakistan, in that, inter (/) 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 also 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 by 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 Sindh against internal disturbances and to ensure that the Government of that Province is carried on in accordance with the provisions of the 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. (c) 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. (///) The Civil Services of Pakistan have been undermined by disregarding the provisions of Articles 240 to 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)(f>) 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”.
6. The power exercised by the President is with reference to Article 58(2)(ft) of the Constitution. In order to understand its efficacy and scope, it is necessary to take note of some of the provisions of the Constitution. It was in the preamble and now in Article 2A of the Constitution that “the State shall exercise its powers through representatives of the people”. This clearly laid down that power and authority shall be exercised through the chosen ‘representatives’, not through an individual, however high, may be the President. Then, these chosen representatives have to be of ‘the people’. The President is not chosen by the people. He is elected by the members of the Assemblies. He has no direct contact nor the people choose him. Secondly, according to Holy Quran (Al Amran, Para 4 Ayat 109) the Prophet Muhammad (Peace be upon him) was ordained to consult. Which Muslim ruler can claim more authority-not to consult? The Constitution of Pakistan has mandated in Article 45, “that in exercise of his functions, the President shall act in accordance with the advice of the Prime Minister and such advice shall be binding on him”. In the amended form, about which something will be said later, the provision is that “In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet or Prime Minister”.
Provided that the President may require that Cabinet or as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration”.
7. When one is required to act in accordance with the advice of another he acts at his peril if he goes against the advice. If the advice of the authorized person is not taken, like that of a doctor by a patient the latter is likely to suffer. Thirdly the power exercised under the amended Article 58(2)(ft) came into existence alongwith amended Article 41(7) of the Constitution when the Chief Martial Law Administrator/the President had already provided in Presidential Order No.14 of 1985 that he shall appoint a date for lifting of the Martial Law. The amendments. _ had to be made by the National Assembly as which assembly or parliament would H have the Martial Law rather than not submit to some amendments? Therefore, while interpreting Article 58(2)(b) this factual background is not to be lost sight of and it is not to be interpreted in a manner that it invests power in the President more than the King or Queen of England possessed even when sun did not set over one or other part of their dominions or territories, nor more than what the President of the most powerful nation in the world possesses. King or Queen of England has not dissolved the Parliament for more than a century without the advice of the Prime Minister. Nor the President of the United States can dissolve the Congress.
8. More importantly it may be noted that the relevant amendments made are unique in nature. For the first time in constitutional history of any country, I think, it was so stated that a named person will be President for such a period. Article 41(7) inserted in the Constitution is to the following effect:

“Notwithstanding anything contained in this Article or Article 43 or any other Article of the Constitution or any other law, General Muhammad Ziaul Haq, in consequence of the result of the referendum held on the nineteenth day of December, 1984 shall become President of Pakistan on the day of the first meeting of Majlis-e-Shoora (Parliament) in joint sitting summoned alter the election to the Houses of Majlis-e-Shoora (Parliament) and shall hold office for a term of five years from that date, and Article 44 and other provisions of the Constitution shall apply accordingly”.

9. This provision is notwithstanding Article 43 which lays down that “the President shall not hold any other office of profit in the service of Pakistan or occupy any other position carrying the right to remuneration for the rendering of services”. The President wanted to retain the Office of the Chief of the Army Staff which was the main plank of his authority^ so the provision. After the General had become President he was to hold office for a term of five years and “other provisions of the Constitution shall apply accordingly”. The other provision most vitally connected with the power structure of ruling was the authority to dissolve the National Assembly. It was laid down in the amended Article 58(2) that the President may also dissolve the National Assembly in his discretion where, in his opinion—
(a)
(b) a situation has arisen in which Government of the federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to electorate is necessary”.
10. Reading the three Articles together it was obvious that the General wanted to become President, retain the base of his power the Command of the Army and also the authority to dissolve the National Assembly according to his discretion. Being the Chief Martial Law Administrator and conditioning the lifting of Martial Law on the amendments to be made by the National Assembly it was
but wise of the members of the National Assembly to oblige and get the country out of the clutches of the Martial Law. But the beneficiary of the powers little realized that there is a Being beyond human specie who does not take kindly to arrogation.of authority. The General with his companions died in an air crash. ^j& \J ^’Ob ^ilol Powers acquired or conferred perished in a twinkle. There
is no doubt that the power to dissolve the National Assembly was desired by the late President and it was granted to him. Article 41(7) makes it clear that it is the General Muhammad Ziaul Haq who becomes President and provisions of the Constitution are to apply ‘accordingly*. Reality and the letter of law both point to the c6nclusion that the powers were personal for the President. These perished with his sad demise. Sophistory will not suffice to say that power to dissolve the National Assembly devolved on his successor. Intention and actions had combined together for the late President. There is no doubt about it. If the Divine Will did not permit the late President to complete his mission or tenure, nobody can step into his shoes and put on his mentle. So the relevant amendments lapsed with the life of the late President. No interpretation would be true contrary to the intention and actions of the participants of the amendments. Nor that is advisable as that
would strike at the root of the parliamentary system of Government established under the Constitution after much trial and error and loss of half of the country.
11. Clarity of vision is essential. Confusion in thought is fatal. Presidential system was tried under the Field Marshal, resulting in the end of humiliating defeat and loss of half of the country. Past experience had shown that the President and the Prime Minister did not co-exist long constitutionally. A President vested with powers to govern, unless made a di’iator, cannot run the affairs of this State as in a Presidential system he will have no control over the legislature, Parliament or Congress and it is unrealistic to think that the
Parliament having control over the purse, will always oblige the ‘President by passing the budget. Even with the ultimate threat of dissolving the National Assembly, the President cannot or could not run the affairs of the country without sending the house home. How can he do so, if he would have no democles sword to wield? None-these, if the parliamentary system under the Constitution is not acceptable it may be given up but it is not rignt or fair to interpret it in a manner | that its spirit is swept away under the carpet and the President is asked to hold election within ninety days after dissolving the National Assembly. Nobody can ensure the result of election. If the same Assembly is re-elected with a bang, how embarassing for him it would be and if the Assembly lakes into its head to impeach, how aweful the situation would be? Such an hazardous course is not chalked for the President. The risk could be taken by the late Preside a who held office of the Chief of the Army Staff and if the elections were to go r.¥ry he could re-impose Martial Law. This is not possible for a civilian President under the Constitution. Therefore, I am dearly of the view that power under Article 58(2)(&) pertained to the late President and it need not be stretched any further to make the confusion worse confounded. In conclusion, I would say that historical perspective, vicissitudes of constitutional developments and the Constitution as it is does not permit the President to dissolve the National Assembly.
12. Assuming that the authority of the late President to dissolve the National Assembly devolved on his successor-in-Office, then Article 58(2) may be referred to. It lays down–“Notwithstanding anything contained in clause (2) of the Article 48, the President may also dissolve the National Assembly in his discretion where in his opinion—
(b) a situation has arisen in which 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”.
13. Two points may be noted. Firstly it is the ‘Government of the Federation’, and secondly that it “cannot be carried on in accordance with the provisions of the Constitution”, when the President may dissolve the National Assembly. Now, concentrating on the first point it is the ‘Government of the Federation’ which cannot be carried on. How the Government of the Federation is carried on, Article 90 provides the answer. It is that-
(/) The executive authority of the federation shall vest in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution”.

Article 91 lays down.
“(1) There shall be a Cabinet of Ministers, with the Prime Minister at its head, to aid and advise the President in the exercise of his functions….
(5) The Prime Minister shall hold office during the pleasure of the President, but the President shall not exercise his powers under this clause unless he is satisfied that the Prime Minister does not command the confidence of the majority of the members of the National Assembly, in which case he shall summon the National Assembly and require the Prime Minister to obtain a vote of confidence from the Assembly”.
Reading the two Articles together the ‘Government of the Federation’ is to be carried on by the President with the aid and advice of the Cabinet headed by the Prime Minister. If ‘the Government of the Federation’ is not being carried on in accordance with the Constitution the fault is that of the President and the Cabinet. Why should the National Assembly be dissolved? If there are differences between the President and the Cabinet, the Constitution provides mechanism for their solution. The President may call upon the Prime Minister to perform his/her duties under Article 46. He may ask the Prime Minister if he thinks that the latter has lost confidence of the National Assembly to seek vote of confidence. He may address the two House of Parliament and ask the members to see that the Prime Minister acts in accordance with the Constitution. If all his efforts fail, he should think that he may be wrong, than that all the representatives of the people are wrong.
14. The second point is that the Government of the Federation “cannot be carried on in accordance with the Constitution”. If the President is to act on the aid and advice of the Cabinet as required by the Constitution, there will be no non-carrying of the Government of the Federation in accordance with the provisions of the Constitution. It is only when President and the Cabinet acting together fail to carry on the Government of the Federation in accordance with the Constitution that the National Assembly can be dissolved. President has not said that he had failed to carry on the Government of the Federation in accordance with t,he provisions of the Constitution. So it cannot be said that the Government of the Federation could not be carried on in accordance with the provisions of the Constitution. It may also be rioted that it is only when the Government of the Federation “cannot be ‘carried on in accordance with the provisions of the Constitution “iliat the National Assembly can be dissolved”. Words to be taken note of are “cannot be carried on”, not that the Government is being carried on not efficiently or without any fault. Which Government in the world is being carried on without default? And one has not to forget that the Government had come into being after a long spell of Martial Law and it is a developing country. Problems and difficulties are going to be there. Ideal is difficult to achieve and it always goes ahead. Further, the provision is that the Government of the Federation cannot be carried on” in accordance with the Constitution”. Where was the break down of the Constitution? The provision may come into play only when the Constitutional machinery has completely broken down. Where had it broken down or come to stand still? All constitutional authorities were there and functioning, Presidency, National Legislature, Governors, Provincial Assemblies, Courts etc. If there were defaults or defects, violation of law, these were matters to be attended to by the President and his Cabinet. They had to work in unison. The President cannot throw the bucket and dissolve the National Assembly and call I he nation in twenty months’ time to go back to polls. Elections cost money and turmoil. Poor country can hardly afford the luxury with no prospectus of any improvement. Exercise of authority or power demands careful, cool assessment with foresight.
15. It may be recollected that when on the 6th of August, 1990 the President dissolved the National Assembly, in the two Provinces in which the majority party in the National Assembly had the majority in the Provincial Assemblies, these two were dissolved allegedly with the approval of the President by the respective Governors, and the other two assemblies on the advice of the Chief Minister by the respective Governors. The point to be taken note of is that it is the Federation of Pakistan comprising of lour federating units. In a federal form of Government, the Federal institutions on the one hand and institutions in the federating units on the other function in their own spheres under the Constitution. It does not follow that if the Federal Government is not being carried on in accordance with the Constitution, the Provincial Governments are also not being carried on in accordance with the Constitution. The fact that all the assemblies were simultaneously dissolved shows that the Constitution was being taken as if it provided a unitary form of Government which obviously it did not do.
16. Another point to be taken note is that the Leader of the Opposition had moved a motion of no-confidence against the Prime Minister. The motion was defeated. Few days earlier than the dissolution, the Leader of the Opposition indicated that another no-confidence motion would be moved. Notwithstanding, the National Assembly was dissolved. Although under amended Article 91(8) of the Constitution, any person -can be appointed as a Prime Minister when the Assembly stands dissolved. But to appoint the Leader of the Opposition as a O Prime Minister in the circumstances would show that whole Assembly was not at no (?) fault, so no (?) why dissolve the entire body. Discretion to appoint anybody as a Prime Minister during the dissolution of the Assembly may be bald or not expressly circumscribed. But it does not mean that for dis-satisfaction with the Leader of the House, the whole House is dissolved and the Leader of the Opposition is appointed Prime Minister. It will not inspire impartiality, pVe-requisite of the high office of the President.
17.Exercise of high Constitutional authority is not undertaken as one would wish it or for dis-satisfaction. One has to be aware what William Blake said;
The strongest poison ever known Came from Caesar’s laurel Crown”.
Present passes. Constitution basic law should survive lest striking at its root hollows the foundation crumbling the edifice of the State. Therefore, constitutional authority is to be exercised not with reference to the present affairs of the State but how it is going to effect the affairs of the Stale in future. Similar is the duty of those who interpret the Constitution. Marshall’s judgment in “Marbwy\v. Radison”, 5 U.S.(1 Crauch) 137 (1803) determined the course of history in subjecting the Executive authority to judicial review leading the United States to run on democratic lines. Therefore, I am clear of the view that the advice being taken not from the Constitutional authority, the Prime Minister but from authorities or persons not authorized by the Constitution to tender advice to the President if so taken, or acting on his own, the President fell in error in exercising the power of dissolution of the National Assembly which did not vest in him nor was available in the circumstances.
18. Learned counsel for the petitioner urged arguments at length in support of his petition. The learned Attorney-General in his usual suave style justified the order of dissolution. It was a privilege to hear Syed Sharifuddin Prizada trace the history of the provision from Simon Commission Report. He pointed out that the phrase “the Government cannot be carried on” in accordance with the Constitution was first used in the said Report. When on the basis of the Report, Government of India Act 1935 was being debated in the House of Lords in England, extended meanings were assigned to the phrase. But it was made clear on behalf of the Government moving the bill that the phrase comes into play only when the constitutional machinery of the Government totally breaks down, not when the constitutional authorities carrying on the Government are functioning, though not as good as one would wish. The phrase survived and was used or abused until the Constitution of 1973 when it was dropped because of bitter struggle of the authorities using it on the one hand and the people on the other. When the Chief Martial Law Administrator wanted it to be inserted hi the Constitution before he would lift Martial Law, it was resurrected. But it lapsed with the moving figure for whom it was intended, as seen above. Even if it survived the makers, its contours were defined by this Court in the case of ‘Federation of Pakistan v. Muhammad Saifullalt KJian’ (PLD 1989 S.C.166). My learned brother Mr. Justice Nasim Hasan Shah at page 190 of the report took it to mean that “the machinery of the Government of the Federation had come to a standstill or such a break-down had occurred therein which was preventing the orderly functioning of the Constitution”. My learned brother Mr. Justice Shafi-ur-Rehman defined it at pages 212–213 as follows:
“The expression “cannot be carried on” sandwitched as it is between “Federal Government” and “in accordance with the provisions of the Constitution”, acquires a very potent, a very positive and a very concrete content. Nothing has been left to surmises, likes or dislikes, opinion or view. It does not concern itself with the pace of the progress, the shade of the quality or the degree of performance or the quantum of the achievement. It concerns itself with the break-down of the Constitutional mechanism, a stalemate, a deadlock in ensuring the observance of the provisions of the Constitution. The historical perspective in which such provision found a place in our Constitution re-enforces this interpretation”.
19. Specious arguments to distinguish or diminish the vitality of the explicit exact language may over shadow its meaning but it cannot suffuse its soul.
Sophistary is always available but truth survives inspite of hemlock. Reasons advanced are many, may be weighty. But reasons alone are not enough. The arch angel gave reasons for not prostrating before Adam. He was made of fire, Adam of clay. The latter-shall shed blood. Nobody ever said that the reasons were not correct. Yet the archangel was expelled from heaven. Why? He disobeyed the Command. The Constitution is to ‘be obeyed. Not the Institutions provided dismantled by invocation of one provision or the other. Therefore, I am clear of; the view that notwithstanding the dissatisfaction of the President with the functioning of the Prime Minister or the Parliament the reasons for dissolving the National Assembly were not good enough under the Constitution, principles previously laid down by the highest Court in the land. It was perhaps lost sight of that if the National and Provincial Assemblies were so bad as to be dissolved, it were these very Assemblies who had not long ago elected the President. Were they good then and had become bad so soon? Creature condemning the creator/s does not sound well.
20. Having held that there was no power or authority to dissolve the National Assembly, the next question is whether the National Assembly be restored. It may be noted that when the first ever Assembly was dissolved, its Speaker Maulvi Tamizuddin Khan had challenged the order. When the previous Assembly was dissolved, its restoration was dis-allowed by me in the High Court (PLD 1988 Lab. 725) inter alia on the ground that neither the Speaker nor the Leader of the House had challenged the order. Rather they were ready and participating in the ensuing election. Notwithstanding that this time too neither the Speaker of the Assembly, nor the Leader of the House or the Leader of the Opposition had challenged the dissolution. All participated in the forthcoming elections. Leading members of the National Assembly have been re-elected. Leader of the House has become the Leader of the Opposition, no less an eminent position. The Leader of the Opposition can still point out the right course of action. If it is really right, not following it would lead the Government astray to be replaced in course of time. Relief of restoration cannot also be allowed for the additional reason that the
gentlemen elected to the new-National Assembly have not been impleaded as a party to these proceedings. It is elementary principle of law that no adverse order can be passed against anybody without hearing him. Therefore, no order unsteading them can be passed restoring the dissolved Assembly. For these reasons the petition is dismissed.
Rustain S. Sidhwa, J.-This is a petition by Kh. Ahmad Tariq Rahim petitioner seeking leave to appeal against the judgment of a Special Bench of the Lahore High Court dated 14.10.1990 dismissing his writ petition filed to challenge the order of the President of Pakistan dated 6.8.1990 dissolving the National Assembly of Pakistan.
I have read the leading judgment of my learned brother Shafiur Rahman J., but since there arc various matters which he has not touched in his judgment and there are others where our perceptions differ, it is necessary to express myself separately, which I do so herewith.
2. Raja Muhammad Anwar, Senior Advocate, has argued the case on behalf of the petitioner. He has drawn support from the writ petition and the documents annexed therewith, as also the replication and documents attached therewith. Mr. Aziz A. Munshi, attorney General for Pakistan, has argued the case on behalf of the Federal Government. He has copiously referred to the written statement filed on behalf of the Government, as apart from a mass of documents filed by the Government in support of its case, including the affidavits of senior officers of Government. Mr. Sharifuddin Pirzada, Senior Advocate, has also argued the case on behalf of the Government and has referred to earlier legislation dealing with the provisions relating to the breakdown of Constitutional machinery. For the great pains taken by all the learned counsel in this case, I am indeed indebted.
3. In order to understand the controversy, it is necessary to understand the nature of our Constitution. The Pakistan Constitution framed in 1973, as amended upto the date of the dissolution of the Assemblies, is basically Federal in character, partaking of the British Parliamentary system, with the executive having the primary responsibility for the formation of the Government policy and its implementation through the process of law, subject to its retaining the confidence of the legislature. The executive has to act subject to the control of the legislature. Under Article 41, the President is the Head of the State and represents the unity of the Republic. Under Article 90, the executive authority of the Federation is vested in the President and is exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution, without prejudice to the right of the Majlis-e-Shoora (Parliament) from conferring by law functions on authorities other than the President. Under Article 97, the executive authority of the Federation extends to all matters with respect to which the Majlis-e-Shoora (Parliament) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan. Under Article 98, the Majlis-e-Shoora (Parliament), on the recommendation of the Federal Government, can by law confer functions upon officers or authorities subordinate to the Federal Government. Under Article 91, there is a Cabinet of Ministers,
with the Prime Minister at its head, to aid and advise the President in the exercise of his functions. Under Article 48(1), the President in the exercise of his functions, has to act in accordance with the advice of the Cabinet or the Prime Minister; without prejudice to his right under Article 48(2), to act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so. The President is thus a fairly strong constitutional head of the executive, with the real power vesting in the Cabinet and the Prime Minister. Similar position obtains in the Provinces, with the Governor as the head of the executive. Under Article 130, there is a Cabinet of Ministers in each of the Provinces, with the Chief Minister as its head, to aid and advise the Governor in the exercise of his functions. The Cabinet is therefore the guardian knot which binds the legislature to the executive both in the Federation and in the Provinces. The Cabinet enjoying majority support in the legislature, controls both the legislative and executive functions. Where they are agreed on fundamentals and represent the collective will of the nation, they conirol policy in all its forms. All these provisions, bring out clearly the Federal character of the Constitution, based on the Parliamentary system.
4. Even where the National or a Provincial Assembly is dissolved, the Constitution seeks to maintain the continuity of the system. Where the President dissolves the National Assembly, he is mandatorily bound under Article 48(5) to fix a date, not later than 90 days from the date of such dissolution, for the holding of the general election to the said Assembly and also to appoint a care taker Cabinet. The word “and” between paras (a) and (b) of clause (5) of Article 48 shows that the fixing of the date of the next general election and the appointment of the care-taker Cabinet arc co-extensive with the dissolution of the National Assembly. Where the Governor dissolves the Provincial Assembly, he is mandalorily bound under Article 105(3) to appoint, in his discretion, but with the previous approval of the President, a caretaker Cabinet. Under Article 224(2), when the National or a Provincial Assembly is dissolved, a general election to the Assembly is mandatorily to be held within a period of ninety days after the dissolution and the results of the election have to be declared not later than fourteen days after the conclusion of the polls. Articles 48(5) (b) and 224(2) both read together, clearly show that the general elections must be held within ninety days of the dissolution of the National or Provincial Assembly and the date which is to be fixed must be such which brings about the election within this stated period. In Federation of Pakistan v. Muhammad Saifullah Klian (PLJ 1989 S.C. 170), where the date fixed for the election exceeded by over fifty days the period prescribed, this Court by majority view treated the delay as excusable, though Shafiur Rahman J, treated the same as inexcusable and unwarranted.
5. Under Article 48(5)(b), where the President dissolves the National Assembly, he has mandatorily to appoint, in his discretion, a caretaker Cabinet. Under Article 105(3), where the Governor dissolves a Provincial Assembly, he has mandatorily to appoint, in his discretion, but with the previous approval of the President, a caretaker Cabinet. Under Article 91(8), where a National Assembly is dissolved, the Chief Minister or any other Minister can be allowed to continue in his office during the period of dissolution, or any other person can be appointed as Chief Minister or other Minister during such period. Articles 91(8) and 130(8) thus enable the executive powers to be exercised by the President and the Governor with the aid and advice of interim caretaker Cabinets, for without such Cabinets their actions would be unconstitutional. The appointment of the Prime Minister from amongst Ministers at the Federal level and the Chief Minister from amongst Ministers at the Provincial level is mandatory, for a caretaker Cabinet can only be presided over by them and a Cabinet is not legally complete without them The care taker Cabinet cannot be presided over by the President or the Governor. The constitutional oaths which the Ministers make before assuming office also contain a provision by which they are bound not to reveal internal secrets, unless specially permitted by the Prime Minister or the Chief Minister. The object of the caretaker Cabinet is to fill a temporary void, so that it may conduct day to day administration, without getting involved in matters of substantive importance or policy or subjects having far reaching effects, other than during an emergency or some urgency, till the new Government is installed. Above all, it is not supposed to influence the elections or do or cause to be done anything whereby which Government machinery or funds are channelled in favour of any political party. Perhaps its most important duty is to ensure free, fair and impartial elections, the said function being inherent in the very purpose for which it is constituted. All these provisions cumulatively show that no sooner the Federal or the Provincial Assembly is dissolved, that caretaker Cabinets have to be immediately installed, in keeping with the Parliamentary traditions of a Cabinet system of Government, with the Prime Minister or Chief Minister at its head. This is nothing more than an extension of the principle of continued Parliamentary responsibility, which is engrained in the Parliamentary system. In Federation of Pakistan v. Muhammad Saifullah Klian (supra), where a caretaker Cabinet at the Federal level Was installed, without a Prime Minister, this Court took seirous notice of the omission and held that the Constitutional provisions clearly showed that the office of the Prime Minister was necessary at all limes for running the affairs of the country and that he should have been appointed to head the caretaker Cabinet. Shafiur Rahman J, treated the omission as altering the very character of the Constitution from a Parliamentary democracy to a Presidential system of Government, which omission he felt the Courts should neither countenance nor condone.
6. Where the caretaker Cabinet is not to be composed totally from the old Ministers but a new or mixed set has to be appointed, from out of the elected members, it is of the utmost importance that they are totally neutral persons possessing the highest integrity so that the elections can be held in an atmosphere of impartiality and the same’are not influenced in any way in favour of any political party. The appoint ent of members of the caretaker Cabinet is strictly in the discretion of the President or the Governor under Article 48(5) or Article 105(3), which is not within the scope of judicial review, but the appointment of members known for their open hostility to the last party in power, or those likely to subvert the election, would border on breach of impartiality and severely injure the democratic process. Impeccable impartiality demands that the President and Governor remain free from all political colour and affiliation and that the elections held are free and fair as can even throw up the dismissed party in power. Both the President and Governor are heavily burdened with onerous duties and their chambers are no bed of roses. They perform their duties not for the glory of the office, but for the honour and dignity of the State.
7. Turning back to the Constitution, it cannot be denied that by changes which were inter alia effected in Articles 46, 48, 50, 56, 58, 70, 75, 90 and 91 of the original 1973 Constitution by the Revival of the Constitution of 1973 Order, 1985 (P.O. 14 of 1985) and the Constitution (Eighth Amendment) Act, XVIII of 1985, certain rights and powers hitherto not with the President were vested in him. Some of these have been listed by me in para 7 of my judgment in Muhammad Sharif v. Federation of Pakistan (PLD 1988 Lah.725 at 768). In keeping with the desire of the then President “to share powers” with the Parliament, the said amendments were accepted by the then Parliament; both the President and the Parliament sharing the united view that the Federal and Parliamentary character of the Constitution would be preserved, including the Parliamentary conventions surrounding them. It is true that the elected representatives then had no choice but to accept the lifting of martial law and the restoration of democracy on whatever favourable terms were offered or could be extracted, the President however secured for himself some inherent and some very effective powers which could remain dormant, but which he could effectively use when required. In short, he created a “power base” in favour of his office, not previously provided by the
1973 Constitution, thus obliterating his position as a figure or titular head and replacing it as one almost effective, if not equal in power as the Prime Minister.
8. A few words may be stated about the position of the President. The President, as the Head of the State, represents the unity of the Republic. He is thus placed above the party. He is the benign moderator and the symbol of the impartial dignity of the State. He is entitled to certain communications and information, which is the duty of the Prime Minister to furnish, with power to submit for the consideration of the Cabinet any matter on which a decision may have been taken but which has not been considered by the Cabinet. He can call upon the Cabinet to reconsider any advice tendered or consider such advice. He has power to act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so, with entitlement to decide whether he is so empowered. He has power to refer any matter of national importance to a referendum. He has power to send messages to either House for their consideration. He has the right to address both Houses assembled together at the commencement of each session of Parliament. He has the power to dissolve the National Assembly if, in his opinion, a situation has arisen in which the
Government of the Federation cannot be carried on in accordance with the provisions of the Constitution. He has the power inter alia to appoint the Chairman of the Joint Chiefs of Staff Committee and the three Chiefs of the Army Staff, Navai Staff and Air Force Staff. He is at the apex, as the executive authority of the Federation, which is vested in him, is exercised by him directly or through officers subordinate to him. He is to be aided and advised in the exercise of his functions by the Cabinet of Ministers, with the Prime Minister at its head. In the exercise of his functions, he has to act in accordance with the advice of the Cabinet or the Prime Minister; except in cases where he is obliged to act in his discretion. The President is therefore no less powerful than the Prime Minister.
9. The basic character of the Constitution is now a mix It is not Presidential; it was never meant to be. It is not totally Parliamentary, as it was intended.
10. This amalgam of powers can be viewed from two angles. One view—The President, by virtue of a host of Articles, can interfere by advice and recommend
change and correction. The President has effective power to make himself felt and secure attention and compliance of his views. His invisible presence is no less
effective than his presence. The power is thus divided between the President and the Prime Minister. It is the case of two competing holders of power at the apex. The President thus has effective power greater than the freedom to act on the three rights of the Crown which King George V. once expressed he had and of which Begehot spoke, namely, “The right to be consulted, the right to encourage and the right to warn”. The President’s intercession can thus be treated as impeding the functioning of anything in the nature of a purely Parliamentary Cabinet form of Government. The other view–The President can be treated as the repository of a complementary power, so very much needed to neutralize discord, preserve unity and restrain the political will from breaking its conventional frontiers. An experienced and wise President, having served as a member of Parliament for a number of years, could provided the much needed guidance and direction as a benign moderator and democratic ombudsman. Where a break down of Parliamentary discipline, ethics and morality have set in, such a President could perhaps be the last bulwark between chaos and utter disaster. Like two jets in a carburettor, the President and the Prime Minister have to synchronise their working, to provide smooth functioning of the democratic process. Where both live by the book and rule of law, they cannot provide any scope for discord, and there should be none, for no two honest persons can differ over that which is inherently true and correct. It is only when the Constitution or the rule of law is flouted, that disagreement can set in and where the system totally fails, disagreements and disharmony become symbols of political hatred and discord. An enlightened Parliament alone will have to answer the question whether the present system is inherently defective or intrinsically sound and can be allowed to work.
11. One may now turn to the office of the President in the context of the party that puts him into power. A President may be appointed by the major political party in power holding majority votes in the two Houses and the 2nd Edition, VolJIFat page 1778, mentions that these provisions, as would appear from the debate that took place in the House of Lords, were enacted to prevent internal subversion, because one section of the Congress Party had declared its intention to enter the Legislatures only in order to wreck them from within, since they fell far short of the Party’s demand for full self Government. In the debate on the Bill, the Marquess of Lothian desired to add the following words to para (1) of Section 45-“or the subversion of the institutions set up by this Act”, so as to arm the Governor General with powers to intervene in the event of any attempt being made to subvert the principles of responsible Government and substitute for them some form of party dictatorship. However, the proposed amendment was withdrawn on Ue assurance of Marquess of Zetland that the Governor General would be able to deal with such a matter under Section 45. Sections 45 and 93 appeared in separate Chapters in the 1935 Act headed “Provisions in case of failure of Constitutional Machinery”. The said two sections were omitted after Pakistan came into being in 1947. Later constitutional documents of 1956, 1962, 1972 and 1973 did not incorporate provisions to deal with failure of constitutional machinery as provided in the 1935 Act. It was not till the Revival of the Constitution of 1973 Order, 1985 (P.O. 14 of 1985) and the Constitution (8th Amendment) Act, XVIII of 1985, were passed that such provisions found their way in the 1973 Constitution. The present Articles 58(2)(b) and 112(2)(b)> which in some measure reproduce the language of Sections 45 and 93 of the old Government of India Act, 1935, enable both the Federation and the Provinces to deal with cases of failure of Constitutional machinery and to thereby ensure that their respective Governments are carried on in accordance with the provisions of the Constitution.
13. Para (b) of clause (2) of Article 58 and para (b) of clause (2) of Article 112 of the Constitution basically cover cases of failure of Constitutional machinery. Though the headings of these Articles do not refer to this fact, but these clauses cover this subject. This is apparent when one reads the heading to Article 234, which reads: “Power to issue Proclamation in case of failure of Constitutional machinery in a Province”. This section deals with the Province not being able to carry on its Government in accordance with the provisions of the Constitution. The ultimate object of Articles 58(2)(b) and 112(2)(b) is to restore representative Government at the Federal or Provincial level. Article 112(2)(5) is not intended to cover cases dealing with external or internal aggression, for which Article 232 exists.
14. Articles 58(2)(fo) and 112(2)(&) refer to situations which have arisen in which the Government cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. The word “cannot” presupposes a Constitutional inability in the nature of a breakdown or dislocation. The word “Constitution” obviously means the Constitution of the Islamic Republic of Pakistan and not the other laws of Pakistan. The words “and an appeal to the electorate is necessary” highlight the breakdown to be of such a magnitude that an appeal to the electorate is perhaps the only remedy to the situation. Taking the case at the strictest level, one would imagine that these provisions become applicable when a breakdown has actually occurred or is on the very brink of happening and that the level of requirement is beyond the test of imminence and that the transgression is of such a magnitude that nothing short of an appeal to the electorate is necessary. Should the provisions be considered strictly as to even exclude the imminence of danger from its parameters or exclude circumscribed safeguards which can be considered or provided to preclude arbitrariness in their application! Successive Governments which run by the book, have respect for law and order and are free from corruption, would invariably set a trend so that these provisions could be strictly construed. However, if successive Governments do not carry on their functions in accordance with the provisions of the Constitution, have little respect for the rule of law and are immersed in corruption, they would invariably set a trend requiring the rigidity to be scaled down whilst interpreting these provisions. Again, if too stringent tests are applied, then the situation of 1977 may repeat itself with the President holding out for a total collapse and the Martial Law stepping in for failure on his part to control imminent breakdown. I would not however like to go down on the record as jutifying an interpretation which varies with every change in the tone of our political progress or experience. The wordings of the two provisions are sufficient to admit of a flexible approach either way and, without being dogmatic in interpreting these provisions, the facts of the case, in the background of the overall situation and political climate then prevailing and the reasons leading to the breakdown, would, all taken together, determine what the correct approach should be.
15. Articles 58(2)(b) and 112(2)(fc) are oppressive provisions. M.H. Beg CJ., whilst interpreting a similar provision of the Indian Constitution (Article 356) in the State of Rajasthan’s case (AIR 1977 S.C. 1361 at para 40), held the same to be both preventive and curative. The same position obtains for these two provisions in our Constitution. Preventive, so as to prevent failure of Constitutional machinery taking place by nipping in the bud a breakdown that is imminent. Curative, so as to mend the ill effects of a breakdown that has occurred. The provision can be applied by the Federation if a Province was to refuse to carry out the directions of the Federation given in exercise of such*powers conferred on the Federation by the Constitution. Since there exist a large number of matters on which the Federation is competent to give directions, one would imagine that in all cases this provision could be applied to meet such situations. The words “cannot be carried on in accordance with the provisions of the Constitution” could also cover non-compliance of almost every provision of the Constitution. But in applying these provisions, one must not forget our own retarded legislative experience, which has operated in a field where discipline has been loose, the rule of law somewhat lax and accountability sketchy and non-existent. To apply these provisions in a sweeping manner would be creating Constitutional autocracy and retarding the somewhat slow development of the democratic process which has begUM and which has to be ‘nursed through its formative years. One cannot overlook the fact that the electorate is still besmirched in illiteracy and ignorance and the elected representatives have yet to find their class. Half of the life of this country has been under Martial Law and the other half has been under a Presidential system and a variety of Parliamentary systems of Government under an assortment of Constitutional documents, with questionable dismissals of Governments for political gain and power, subversion of the Constitution and rigged and politically influenced elections being in some general measure the miserable lot of this nascent country. To apply sophisticated British standards, whilst appraising our Constitution, would be to do injustice to an infant system which yet has not passed through its teething troubles. In England, both the electorate and the elected representatives operate at highly educated and intelligent levels of awarences and consciousness to the political process. The Indians, through sustained experience, are finding their levels. To apply all the best of sophisticated standards that one can find in text books to understand the working of different provisions of our Constitution, would be to create doubts and difficulty in the minds of those who have to run the system and are not highly experienced. With this background, one would have to act carefully when appraising a case under Article 58 (2)(b), which relates to the dissolution of a National Assembly, and a case under Article 112(2)(fe), which deals with the dissolution of a Provincial Assembly. In respect of the latter, the range is somewhat large, as it incorporates the failure of a Provincial Government to carry out directions issued by the Federal Government in the exercise of its powers under the Constitution, where the Court may find difficulty in finding grounds to limit its sweeping range, but barring such a case under Article 112(2)(fc) specifically relating to the failure of a Provincial Government in carrying out the directions of the Federal Government, these provisions, i.e. Articles 58 (2)(&) and 112(2)(b), in keeping with the spirit of balance and restraint, would have to be construed in their circumscribed sense to cover only cases of failure or breakdown of Constitutional machinery, or else it would lead to Constitutional dictatorship. To hold that because a particular provision of the Constituion was not complied with, the National Assembly could be dissolved under Article 58(2)(£>) of the Constitution, would amount to an abuse of power. Unless such a violation independently was so grave that a Court could come to no other conclusion but that it alone directly led to the breakdown of the functional working of the Government, it would not constitute a valid ground.
16. The main question that arises is when it can be said that a situation has arisen in which the Government of the Federation or a Province cannot be carried on in accordance with the provisions of the Constitution. In Muhammad Sharif v. Federation of Pakistan (PLD 1988 Lah. 725 at 777), I had the opportunity to examine this matter in respect of the dissolution of the National Assembly, where I stated inter alia:–
The expression “Government of the Federation” is not limited to any one particular function, such as the executive, the legislative, or the judicial, but includes the whole functioning of the Federal Government in all its ramifications. It cannot be forgotten that sub-clauses (a) and (b) of clause (2) are juxtaposed together and therefore sub-clause (b) has to be read in harmony with the intention behind sub-clause (a), in short whether a political issue has arisen demanding the ascertainment of the will of the ^people as regards the continuance of the National Assembly. Thus, where the National Assembly is beset with internal dissensions and problems and the party allegedly in power does not have a clear majority, or having tenuous support from its members, is not able to carry on the functions of the Government with confidence, and is avoiding to take important decisions, which require to be taken, for fear that it may be outvoted, in case a debate is held in respect thereof, a situation can be stated to have arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution. A few further instances can also be given, such as, where the Government has been defeated in the Assembly and the Prime Minister does not want to step down, or political groupings are such that even attempts by the President to form a coalition Government and get a working majority have not been successful and no alternative Government can be formed”.
In that case I was dealing with the case of a majority party having undisputed majority seats and voting strength, which was firmly in the saddle, running its affairs smoothly and carrying on the functions of the Government with confidence. The situations, visualised above relating to failure of Constitutional machinery were therefore given in the context of that case. However, when the said case travelled to the Supreme Court, this Court, by majority view in the Federation of Pakistan v. Muhammad Saifitllah KJwn (PLJ 1989 S.C. 170), held that unless it could be shown that the machinery of the Government had broken down completely, its authority eroded and the Government could not be carried on in accordance with the provisions of the Constitution, dissolution could not be ordered. At another place it held that unless the machinery of the Government of the Federation had come to a standstill or such a breakdown had occurred therein which prevented the orderly functioning of the Constitution, dissolution could not be ordered. With respect, I would submit that the test laid down is too strict and rigid. It forgets that the provision is also preventive. One does not have to wait till the whole machinery of the Government collapses or comes to a standstill or so serious a breakdown occurs which prevents the orderly functioning of the Government, before ordering a dissolution. What is required is that the breakdown is imminent, as partial dislocation has begun, .or the breakdown has actually taken place and as a last resort interference is required to ultimately restore representative Government. Each case should therefore be left to be dealt with on its own merit. There could be many situations which could lead to or where there is an actual failure of Constitutional machinery, such as where the party in power having tenuous support from its members, is not able to carry on the functions of the Government effectively, or a deliberate deadlock created by a party or a group of parties or deadlock arising from an indecisive electoral verdict has constantly impaired or made the smooth running of the Government practically impossible, or where no party in the legislature is in a position to form a Government, or the party in power is guilty of or attempting internal subversion, or where a Government is being continuously conducted in utter disregard of the Constitution, or there is a mass uprising or civil disturbance or complete breakdown of law and order due to public opinion being against the party in power at the Federal or Provincial level. Apart from assuming such situations can arise, it would not be proper to lay down any parameters or tests to determine under what circumstances this Court would accept a given case as one falling in the category of breakdown of Constitutional machinery, other than deal with each case on its own merits as and when it comes up, on the basis of material placed before the Court to show what facts were before the President or the Governor when he formed the opinion and whether the same had a proper nexus with the requirements of the Constitutional provision.
17. Whilst stating with some diffidence the types of situations where the power can be exercised, it mut be stated that this power is meant to be used by the President impartially and objectively and only as a last resort to restore some balance and order in the Govenment, within the compass of established Parliamentary practice, and not in a way as may give the impression that it is to displace a political party in power or to rob the Federation or the Provinces of their autonomy to rule within the respective spheres allowed to them by the Constitution. The exercise of various powers under the Constitution does not guarantee that they will be exercised correctly, or that the elected representatives at the Federal or the Provincial level will perform their functions free from all human or legal errors and defects. All Government actions are not free from catastrophic errors of judgment or dismal failures of action. The functional ability of a ruling party to govern does not merely fail if some provision of the Constitution is violated or not performed or ill-performed. With political strategy and choices, in a house divided between many political parties, being mauled or mutilated by conflicting interests, it may not be possible to take even simple decisions.
1.8. In the Federation of Pakistan v. Muhammad Saifullah KJwn (PLJ 1989 S.C. 170) this Court happened to consider the following grounds given by the President in his order justifying the dissolution of the National Assembly, namely;

1. that the objects and purposes for which the National Assembly had been ulecled had not been fulfilled;
2. that law and order in the country had broken down to an alarming extent resulting in tragic loss of innumerable valuable lives as well as loss to property;
3. that the life, property, honour and security of the citizens of Pakistan had been rendered totally unsafe; and
4. that the integrity and ideology of Pakistan had been seriously endangered;all of which it found as having no nexus with the breakdown of the Constitutional machinery or as justifying the dissolution of the National Assembly.

19. The total material presented to the Court showing the difficulty of the party in power having tenuous support from its members, is not being able to carry on the functions of the government with confidence and responsibility, the deliberate deadlock created by a party or group of parties or deadlock arising from an indecisive electoral verdict or some other situation constantly impairing or making the smooth running of the Government practically impossible, or no party in the legislature being in a position to from the Government, internal subversion attributable to the party in power, the continuous running of the Government in utter disregard of the Constitution, the total rejection by the people of the party in power exemplified by continuous mass processions, strikes and unrest on a national or provincial scale, are basically situations which have a nexus with the failure of the Constitutional machinery. Other stray, or a number of, violations of the Constitution unless by themselves so grave that a Court could come to no other conclusion but that they alone directly led to the breakdown of the functional working of the Government, would not constitute valid grounds. However, where one of the basic situations constituting breakdown of Constitutional machinery, as stated above, is present, violations of the Constitution, where they have contributed to or been the cause of the breakdown, could be treated as valid supportive factors to the decision. Non-compliance of general law, failure to hold or call meetings under the provisions of the general law, misuse of the authority or resources of the Federation or of the Provinces or of statutory or autonomous bodies, unauthorised or irregular interference in Service matters and disruption in their regular and orderly working, some failure to maintain law and order; or the resultant effects arising from such situations, such as the climate of uncertainty if any created thereby, the sense of insecurity created at different levels of administration, the rejection by the people of some actions of the party in power, creation of some threats to law and order, the weakening of the judicial process, would not normally provide grounds for action under Articles 58(2)(b) or 112(2)(b) of the Constitution, though they may, with other factors, provide to the Court the total picture showing some of the other matters that attended the breakdown, or to show the resultant effects arising therefrom. This Court cannot sit in appeal over a dissolution order or substitute its findings for the opinion of the President, but a dividing line would have to be kept in mind between certain basic situations which can be treated as leading to the breakdown of the Constitutional machinery and as having nexus with the provisions of the two Articles of the Constitution that provide for dissolution, strong Constitutional violations which the Courts may hold as directly leading to the breakdown of the functional working of the Government and other peripheral Constitutional violations which contribute to or may be the cause of the breakdown and can be used as supportive factors where basic situations exist. This is apart from the question of quantum or sufficiency of the material, over which this Court has no concern.
20. Before dealing with the merits of the case it is necessary to decide a preliminary objection raised by the learned counsel for the petitioner, namely whether if one or more of the grounds which were the basis of the opinion of the President were not well founded, the order could be struck down as a whole, or could be sustained on the remaining grounds. In this connection the learned counsel has referred to the observations of the learned Chief Justice in the case of Khawaja Muhammad Sharif \ Federation of Pakistan (PLD 1988 Lah 725), which he submits were approved by the Supreme Court of Pakistan in Haji Saifullah Khan’s case (PLJ 1989 S.C. 170), apart from other cases on the same subject such as Keshave Talpade v Emperor (AIR 1943 F.C. 1), Government of West Pakistan v Haider Bux Jatoi (PLD 1968 S.C. 210) and some others. So far as where Khawaja Muhammad ShariPs case (supra) is concerned, the view of the learned Chief Justice was not shared by the other Judges and this Court in Haji Saifullah Khan’s case (supra) also did no support the said view. Regarding the view stated in Keshtive Talpade’s case, Haider Bux Jatoi’s case and some others, the same were in respect of detention matters where it is possible to form the opinion that in case one or more of the grounds which are the basis of the opinion are non-existent or not well founded, the whole order can be struck down, as it is not possible to assess how much of the faulty or non-existent gtrounds have played in the formation of the opinion. However, Mr. Justice Muhammad Munir, the then Chief Justice of the Lahore High Court, in Rafiq Ahmad v Crown (PLD 1951 Lah .17), while dealing with a habe’as corpus petition, doubted the authenlicity of the above view. The Indian Supreme Court in a number of cases, more particularly Suran Singh v State of Punjab (AIR 1976 S.C. 232), has also departed from the view taken in Keshave Talpade’s case. The opinion formed by the President under Article 58(2)(b) is under a Constitutional provision. The rule with regard to detention matters cannot be applied to such a case to strike down the whole order of the President on the ground that one or more of the grounds which were considered by him when forming his opinion were not well founded or non¬existent, while the remaining grounds, any of which could have been a good reason for the dissolution, were not individually or collectively good reasons on which he could have formed his opinion. It would amount to substituting the opinion of the Court for that of the President, which cannot be premitted. I would,therefore, hold that this preliminary objection has no merit and deserves to be rejected.
21. I would now first turn to the main ground given by the President for the dissolution of the National Assembly, namely, that the utility and efficacy of the National Assembly had been defeated by internal dissension and frictions and by failure to discharge substantive legislative functions, other than the adoption of j the Finance, Bill, and further that the National Assembly had lost the confidence j of the people. The learned Judges of the High Court came to the conclusion from [ the material brought on the record that the National Assembly had failed to carry f out any substantial legislative work, that during its twenty months’ tenure, out of about fifty Bills and Ordinances, only fifteen could be passed by the Parliament and that cases, some of which were very important, like the Shariah Bill, could not 1 be processed and were allowed to lapse. The learned Judges also found that since the majority of the members of the Senate were members of the Combined Opposition, this prevented the Coalition Government to carry on legislative business, which fact had also been echoed by the then Attorney General in his press statement. The learned Judges also observed that the Pakistan Peoples Party had only two members in the Senate, that in the National Assembly the said Parly did not have a comfortable majority, that the Coalition Government had retained a hostile attitude against the Senate and that political confrontation with two of the federating units had made it practically impossible for it to carry out any legislative business, as there was no likelihood of any Bill sponsored by the Government being passed in the joint session of the Parliament for lack of majority.
22. On behalf of Khawaja Tariq Rahim petititoner it is submitted that there were no internal dissensions and frictions within the Assembly, that dissent and healthy friction is a part of democracy, that no House could be dissolved on that account and if there was any friction, it was caused by the Combined Opposition Parties who were out to dislodge the Coalition Government at ail costs, whose members were benefited after the dissolution by being made Ministers in the caretaker Cabinets at the Centre and in the Provinces. It is further submitted that during the twenty months’ rule of the Coalition Government, fifteen Acts were passed, including the Finance Acts, and that therefore substantive legislation was done. It is also contended that Parliament passed more laws in one year than in the three years of General Ziau! Haq’s regime. The learned Attorney Genera! supports the findings of the High Court. He has referred to documentation fled by the Federal Government in support of his case.
23. The view formed by the learned Judges of the High Court is not without I substance. Out of fifty Ordinances and Bills presented before the National Assembly, only fifteen could be passed by the Parliament. It appears that amongst fifteen- Acts that were passed during the Coalition regime, almost all were amendment Acts, whilst the finance legislation not having to be sent to the Senate under Article 73(1), directly came to the President for his assent. Irrespective of the question as to which of the two parties took up a hostile attitude against the other, the fact remains that open political confrontation and polarisation between the members of the Coalition Party and the Combined Opposition, which was manifest in the proceedings of both the National Assembly and the Senate, was such that it incapacitated the Coalition Government’s ability to perform its primary function of legislation. Though the Pakistan Peoples Party was the single largest party at the Centre, it did not have an overall majority in the National Assembly. The Pakistan Peoples Party had its Governments in Sindh and North West Frontier Province, but not in the Punjab and Baluchistan. The confrontation between the Federal Government, on the one hand, and the two Provincial Governments of the Punjab and Baluchistan, on the other, continued unabated. The Senate was almost totally with the Combined Opposition. It remained and acted under strong political compulsions. It appears that on 6.12.1989, the President, whilst addressing the joint session of the Parliament, highlighted the problems and performance of the Parliament and the Government. In view of the ingrained polarised atmosphere, there appeared little hope for any change. Functional dislocation of the Constitutional machinery had set in. It was a basic situation leading to the breakdown of the Constitutional machinery and one having a direct nexus with Article 58(2) (b). If the President desired to take action to restore a healthier Government, by placing the matter in the hands of the electorate, so that they, as the Political Sovereign, could choose their elected representatives once again to constitute a stabler Government, the action was neither illegal nor unconstitutional.
24. This then brings into focus certain connected circumstances which are stated to have caused the breakdown, as is referred to by the President, namely, horse trading to win over members of the Assemblies and corruption, inducement, nepotism and measures taken to prevent defection and/or to win over members from the other side, in contravention of Constitution and law, which had assumed prominence. The learned Judges of the High Court found from the material on the record that these malpractices were prepetrated to win over the members of the Assemblies by inducement, that those that defected were ostensibly rewarded, that this exercise gave rise to corruption, horse trading and misuse of public funds running into crores of rupees and this posed a serious threat to the public interest and to the Coalition Government and that the national institutions began to crumble. The learned Judges also held that to foil the move of the Combined Opposition, the Coalition Government transported its members of the National Assembly to Swat, and that they were made hostage and not allowed to contact any other member of the Assembly, that they were brought to the House when the no confidence motion to be tabled against the Prime Minister was put to vote and that by this device the members were prevented to freely exercise their right of vote and the ruling party succeeded in frustrating the no confidence motion. The learned Judges also came to the conclusion that some of the members of the National Assembly, who were instrumental in the defeat of the no confidence motion against the Prime Minister, were immediately thereafter rewarded by being appointed Ministers or Ministers of State and that some of these persons were earlier actually signatories to the no confidence motion. They also found that huge amounts from the Secret Service Fund had been disbursed to various Ministers during the days of the no confidence motion and during the days when the election of the Prime Minister of Azad Kashmir was held.
25. On behalf of the petitioner it is submitted that defection and winning over the members is a part of the normal democratic process, that those members who feel that the party with which they are aligned has deviated from its platform or has materially changed its programme, have the freedom to leave, that members of the opposite party are wooed to join their party on the basis of a better programme being offered by them in the national interest, that the Coalition Party did no more than permit such members as were willing to join them to do so, that it victimised none nor bribed any to join their fold, that the Secret Service Fund was not used to bribe members to join them, but for genuine national purposes, and that if there was any horse trading it was the present governemnt in power which had and is still indulging it flagrantly and has thereby won over its members. It is submitted that there was no misuse of money from Secret Service Fund, particularly in view of the affidavits furnished by the former Prime Minister, Ms. Benazir Bhutto, and her Adviser, Major General (Rtd.) Nasirullah Babar and others and the explanation offered by Major General (Rtd) Nasirullah Babar in the Chamber was sufficient to dispel all doubts. The learned Attorney General relies upon documents filed by the Federation in support of its case, more particularly about disbursement of Secret Service Fund and relies upon the findings recorded by the High Court.
26. Coming to the question of defection and horse trading, the position is not so easy as one would imagine. Defection means the change of party allegiance or loyalty by a legislator, i.e. leaving one political party and joining another. Where defections are few, they retain their character, as such; where they are large and en-bloc, they assume the character of a “split”, i.e. a break of the party into two, the smaller being called “the splinter group” or by other catchy names. In view of the Parliamentary form of Government enshrined in the Pakistan Constitution, which is founded on a party system, it is essential that the right of dissent, as much as the freedom of speech, is preserved and protected for the stability and smooth functioning of the system, the right of freedom of speech of a member of Parliament is preserved and guaranteed by Article 66(1), subject to the Constitution and the rules of procedure as may be prescribed by Parliament, and of a Member of Provincial Assembly by Article 127 read with Article 66(1), subject to the Constitution and the rules of procedure as may be prescribed by the Provincial Assembly. In common with an ordinary citizen, a legislator has the right of freedom of speech and expression under Article 19, subject to the reasonable restrictions stated therein. The ordinary citizen cannot exercise the said right in the legislature, as it is forbidden to him by the rules of the legislature, whereas the legislator, by being elected thereto, acquires the right to enter it and to exercise the said right in the performance and discharge of his duties. The fundamental right of speech and expression of a legislator under Articles 66(1) and 127 is of no less a quality and effect as that of an ordinary citizen under Article 19; in fact it is specially tailored for his need and is qualitative and equally effective, if not greater. The freedom of speech entitles the legislator to vote according to his conscience and to express his views freely and openly on all important matters, other1 than those on which there is a Constitutional bar. Any regimentation of or restriction on the exercise of this right by a Code of Conduct or law, would interfere with the performance of his duty, if not render him soulless and conscienceless. Where a legislator comes on a party ticket, he has a commitment to both his party and his electorate to abide by the policies articulated by his party and to also support that party. Between his duty to support the party and its policies, on the one hand, and to act rightly in the best interest of his electorate according to his conviction, on the other, he may be forced by the weight of conscience to oppose or not to vote on a measure, or to totally leave his party and join another. Upto what limit defection remains acceptable or assimilable with permissible political behaviour, or when it becomes unacceptable, is not easy to define. An independent candidate usually comes with no political programme, other than a claim to act rightly on all matters in the best interest of the nation and his constituency. A party candidate is restricted to his party’s programme. But programme and policies keep changing with grouping. Thus, the independent member may not seriously face a charge of defection if he were to ally himself with a party, but the member coming on a party ticket would most assuredly find himself in breach of trust with his voters. And whilst all forms of defection must be abhorred as violative of the Islamic spirit that binds a man to his word, such transgression on the part of a legislator must be all the more looked down upon as a serious breach of the authority reposed in him by Allah to represent his A* constituency on the basis of the sacred trust reposed by them in him. By defection he basically violates the very spirit of the teaching and requirements of Islam, under which he is ordained to act, and such an act can only be treated as a negation of the very spirit of the Constitution, which he is bound to preserve and protect. But one thing is certain, that when defection is used by a legislator to bargain for something outside his pure moral desire to change loyalty for another political party, “trading” sets in, and when he dictates onerous terms as a consideration for his defection, such as a heavy price, a high office or some handsome reward, it becomes “horse-trading” or “conscience vending”, a highly pernicious, immoral and unethical act, which for the same reasons must be openly condemned.
27. Defections have become some form of standard practice and behaviour A3 among legislators. But this evil old practice has prevailed since democratic institutions were established in this country and since it has served the interests of the parties in power, no serious steps have ever been taken to eradicate it. Whilst any form of unethical defection or “horse-trading” requires to be condemned and I would say that there should be a Constitutional amendment to ban the same, but, in the absence of such a ban, the power to deal with defection or “horse-trading” should be left with Parliament itself, as it deals with violation of Parliamentary practice and etiquette and breach of behaviour on the part of its members, and if there is a law in that behalf, the matter should be left with the bodies designed for that purpose. By a side wind, these somewhat pernicious, though fraternal, departures from ethical behaviour and conduct, should not be permitted to destroy the fate of all the members of a legislative body, for the mistake of a few. Parliamentary practices need to be strengthened; rather than the legislatures be crucified for the mistake of a few Judases.

28. But then the question again arises, whether this pernicious evil has contributed to the failure of the Constitutional machinery. As stated ealier, the Coalition Government was somewhat peculiarly placed in view of the open confrontation existing between itself and the Combined Opposition and attempts made by both to dislodge each other contributed to defection and “horse-trading” on an uninterrupted scale with each side trying to grab members of the other and offering Ministerial or other posts and rewards in the Centre or in the Provinces to some of the defectees. The grant of high offices, such as of Ministers, Ministers of State, etc., to members of the Opposition camp showed that they werefor reward. No Parliamentary practice permits defection or “horse-trading”. The evil |AC is manifest where tenuous coalitions are in the seat of power. To maintain power, defections from the opposition parties are sought against high rewards and offer of Ministerships. Likewise, the same practice is adopted by the opposition to break the ruling coalition. The adoption of this evil practice only lays bare the position of a coalition party that its functional ability to rule, through the numerical strength of its members, is vulnerable, and that if the opponents were to succeed by the same practice, they would be out of power. This ground can reasonably by treated as reflective of serious functional dislocation of a coalition government, and since this is a basic situation for which an assembly can be dissolved, as slated in para 19 above, this ground I would treat as justifying the opinion which the President did come by to justify dissolution.
29. As regards the abduction of the members, it appears no objections were filed by the abducted members for violation of their privileges before the
Privileges Committee, nor any action was filed with the Courts. If they wanted to oblige the Leader of the House to be protected from being abducted by or
coerced into joining the Opposition, their action cannot be considered as giving rise to any cause of action in favour of the other.
30. the material placed on the record shows that excessive amounts were withdrawan from Secret Service Fund at about the time the no confidence motion as moved against the Prime Minister and the election to the Legislative Assembly of the Azad Jammu and Kashmir Government was to be held. Disbursements from Secret Service Fund are matters of high confidence, to be kept secret and not to be made public. To open up any chapter thereof in Court proceedings is fraught with the gravest danger to the State. Action for misuse or defalcation of such funds should be before a Committee specially constituted by Parliament for this purpose, or before a Tribunal constituted for this specific purpose by law, whose proceedings are held in the strictest secrecy. The Prime Minister or any Minister utilising such fund is bound by his or her oath of secrecy not to divulge the nature of its use or appropriation. If the uses were disclosed, it could lead to disaster; and whether they were true or false, how could they be verified. It is stated that the certificates of the Prime Minister that they had been spent on good causes in the best interest of the Government, was all that was required. In this view of the matter, to call for an open disclosure in Court would be a serious departure from correct practice, one against the public interest and that which this Court should not approve. For this Court in Constitutional proceedings relating to a dissolution matter to inquire into this matter, would be derogatory to the honour of the Parliament and almost interfering in their internal working. It is also claimed that the misuse of such high amounts near the period of the no confidence motion and the election to the Azad Jammu and Kashmir Legislative Assembly, lead to the strong inference that they were wholly or in a material measure used to win over opposition members to their fold or to hold on to their defecting members. It is also urged that certain Presidential References have also been filed against certain members of Parliament for misappropriation of such Secret Service Funds. Since I do not consider that this is a matter which should be an open subject for Courts and this matter is sub judice beforfe Special Courts set up to try such cases and references relating to misappropriation of Secret Service Funds is only confined to not more than half a dozen parliamentarians, I do not think this matter was one which led or contributed to or was the cause of the breakdown. I would therefore hold that this matter did not give the President a firm basis to form an opinion regarding the breakdown of Constitutional machinery.
31.1 now turn to two other reasons given by the President for the dissolution of the National Assembly, namely, that the Council of Common Interests had not been allowed to discharge its Constitutional functions and to exercise its powers despite the persistent demands of the Provinces and that the National Finance Commission had never been called to meet and allowed to function, thus blocking important Constitutional bodies from performing their functions. In this respect the learned Judges of the High Court found, on the basis of the material placed on the record, that it appeared that the Federal Government, despite repeated demands by three out of the four federating units and the unanimous resolution of the Senate, had failed to call the meeting of the Council, that the correspondence exchanged between the Chief Ministers, the Prime Minister and the President indicated that there were several subjects which required resolution by the Council, that the failure to call the Council’s meeting put off the settlement of the major disputes, that the reason for not calling the Council’s meeting was that in case any of the issues remained unresolved in the Council, the matter would have had to be referred to the joint session of the Parliament, that since the Federal Government lacked majority there it might have faced humiliation, that the stalemate resulted in polarisation and confrontation, that the Provinces of the Punjab and Baluchistan having no way out had to institute suits against the Federal Government in the Supreme Court calling for the Council’s meeting and that though the President had expressed his concern over the confrontation and political deadlock and had advised the Prime Minister to redress the grievances of the Governments of the federating units, the same was not done. The learned Judges also found on the basis of the material on the record, that the National Finance Commission was formed after a great delay on 25.7.1990, i.e. a day before the last day of its formation under the Constitution, which delay had resulted in not a single meeting of the Commission being convened throughout the tenure of the Federal Government, that the accords which could have resulted from its meetings stood aborted and that the non-summoning of the said Commission gave rise to political confrontation between the Federation and the Provincial Governments, which endangered the solidarity of the country,
32. In this respect the learned counsel for the petitioner submits that the meeting of the Council of Common Interests could not be called due to political reasons, as it would only have further exacerbated political polarisation and that the Prime Minister had replied to the President to state that the meeting would be called and convened at some opportune time. It is further submitted that since a remedy lay with the Provinces to have their disputes resolved by the Supreme Court under the Constitution and two of the Provinces had so moved the Supreme Court, which also made the matter sub judice, the question of the President having to dissolve the Assembly for the non-convening of the meeting of the Council did not’arise. As regards the National Finance Commission, it is submitted that though it had been constituted in the past in 1974, 1979 and 1985, it had only once met and given iits award in 1975,which was also on an adhoc interim basis. It is submitted that in the past when no meetings of the said Commission were held, even though the Federal Government was strongly in the saddle, no breakdown of the Constitutional machinery had occurred and how it could be said that the same now had led to any breakdown. It is further submitted that the Commission was constituted in May, 1990, and when the meeting was to be convened, the Assembly was dissolved. It is asserted that in July, 1989, a summary of the names was put up for appointment, but delay occurred due to differences over the names, but in any case it was constituted on 27.5,1990, but before it could hold a meeting, the National Assembly was dissolved. The learned Attorney General supports the findings of the High Court with the material filed by it with its written statement.

ajax loader