The Constitution of Pakistan, 1973 Developed by Zain Sheikh

AHMAD TARIQ RAHIM

V/S

FEDERATION OF PAKISTAN AND OTHERS

Per Muhammad Rafiq Tara, J.

(a) Constitution of Pakistan (1973), Article. 48(2)(5), 91(3)(8), 58(2)(b) & 19—

The Controversy in essence which falls for determination in these petitions is, as to whether the order passed by the President under Article 58(2)(b) of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the ‘Constitution’) can be judicially reviewed in exercise of the powers vested in this Court by Article 199 of the Constitution. The answer to this question does not present any difficulty in view of the authoritative pronouncement of the Supreme Court of Pakistan in case “Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others” P L D 11989 SC 166 wherein it was held that the opinion formed by the President that the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution, can be subjected to scrutiny through judicial review and in case the President chooses to state the grounds for the action taken, the Court can examine the same to find out whether or not there is any nexus between the grounds and the preconditions envisaged by Article 58(2)(b) of the Constitution empowering the President to dissolve the National Assembly in this discretion.

It is not possible to precisely enumerate the situation in which power conferred by Article 58(2)(b) of the Constitution can validly be exercised. The failure of Constitutional machinery may result from internal subversion or dissensions; the deadlock arising from indecisive electoral verdict and political polarization which makes the carrying on of the Government impossible or where the Government is being conducted in disregard of the Constitution and the law.

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 province 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 Government 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 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. in action on the part of the Federation in resolving such disputes may endanger the federal structure of the State itself. In this regard one of the important institutions is the Council of Common Interests constituted under Article 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 (refer Article 154), supervises and controls the related institutions and is also required to determine the retes at which net profits are to be calculated in terms of Article161. 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 Interest resulting in polarization 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 meetings could be convened there by depriving the federating units to have redress of their grievances.

(v) The provincial autonomy guaranteed by the Constitution was eroded by Launching People’s Work Program 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 disregarded by tapping the telephones of high 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 publicly 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 crores of rupees and unauthorized use of aircraft belonging to P.A.F. and P.I.A. for transportation of M.N.As. at the time 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.

From the above it is manifest that the grounds which prevailed with the President for passing the impugned order have direct nexus with the conditions prescribed by Article 58(2)(b) of the Constitution. It is also borne out from the record that there was material available with the President on the basis of which he could opine 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.

We do not subscribe to the view that if one of the grounds is proved to be non-existent the entire order shall fall. This principle, in our opinion, is peculiar to the cases under detention laws and cannot be extended to the present case.

As regards the objection to the validity of the Eighth Amendment in the Constitution raised by the learned counsel for the petitioner in W. Ps. Nos. 5849 of 1990 and 379 (Peshawar) of 1990, suffice it to observe that this question was raised in case Malik Ghulam Mustafa Khar and others v. Pakistan and others” PLD 198 Lah. 49 but was repelled by a Full Bench of this Court. The Supreme Court of Pakistan while deciding the appeal against that judgment did not take a contrary view. Furthermore, as the matter is pending before the Supreme Court in appeal filed by Abdul Mujeeb Pirzada against the judgment of Sindh High Court, we do not consider it appropriate to reopen this controversy, especially when in the two petitions filed by directly affected persons, this argument was not raised, rather all the other learned counsel made a joint request to leave this matter for decision by the Supreme Court.

Adverting now to the challenge thrown by the petitioner to the appointment of respondent No.2 as Prime Minister to head the caretaker Cabinet, we hold that in view of Article 48(5) of the Constitution empowering the President to appoint in his discretion a caretaker Cabinet, read with Article 91(8) and the oath of office of the Prime Minister prescribed in the Constitution, his appointment is unexceptionable. In any case, the appointment of respondent No.2 as the Prime Minister heading the caretaker Cabinet made by the President in exercise of his discretion cannot be legitimately questioned before this Court in view of the bar contained in Article 48(2) of the Constitution.
[p. 509, 510, 511] A, B, C, D, E & F.

Petitions dismissed.

Advocate for the Respondent:
S.M. Zaffar and Syed Zahid Hussain .

Advocate (in C.M.4166 of 1990).
Agha Muhammad Dilawar Khan.

Advocate (in C.M. No.4233 of 1990).
Muhammad Ismail Qureshi.

Advocate (in C.M. No.4345 of 1990).
Saifullah .

Advocate (in C.M. No.4447 of 1990).
Rafiq Ahmad Bajwa.

Advocate (in C.M. No. 4560 of 1990).
Rai Muhammad Nawaz Khari.

Date of hearing: 22nd to 26th, 29th and 30th September, 1st, 6ht to 10th, 13th and 14th October, 1990.