The Constitution of Pakistan, 1973 Developed by Zain Sheikh

MUHAMMAD NAWAZ SHARIF

V/S

PRESIDENT OF PAKISTAN AND OTHERS

Per Saleem Akhtar, J.

(a) Constitution of Pakistan(1973), Articles 154, 153 & 175

The Council of Common Interest is an important Constitutional institution which irons out differences, problems and irritants between the Provinces inter se and the Provinces and the Federation in respect of matters specified in Article 154. The Council is responsible to Majlie-e-Shoora, which in joint sitting may from time to time by resolution issue directions through the Federal Government generally or in particular matters to take action as the Parliament may deem just and proper and such directions shall be binding on the Council. (p. 834) Y

The question of executive authority of Federation could be invoked only after preconditions of Article 160 and 161 were satisfied. From all what is stated above, it is clear that mandatory requirement of Article 154 was not followed and C.C.I. was not called for to formulate and regulate policy giving opportunity to the Provinces to participate in the proceedings at such important state. (p. 778) M

Sale of properties owned by the Federal Government including Corporations was unconstitutional and in doing so Articles 153, 154 and 156 read with Article 161 were violated by the petitioner and his Government. (p. 778) N

What is stated above clearly shows that in respect of policy of privatisation, Constitutional requirements of provisins regarding CCI and NEC ere not followed and Provinces were not given opportunity to participate in the formulation of such policies. It also appears that on the ground of maladministration, corruption and nepotism of the Federal Government there was sufficient material before the President which has been produced in the Court as Annexures ‘A’ to ‘A-12’ and ‘B’ to ‘R’ which were considered in support of the ground of dissolution. (p. 779) O

The Council of Common Interests is an important Constitutional institution which irons out differences, problems and irritants between the Provinces sinter se and the Provinces and the Federation in respect of matters specified in Articles 154. The Council is responsible to Majlis-e-Shoora, which in joint sitting may from time to time by resolution issue directions through the Federation Government generally or in
particular matters to take action as the Parliament may deem just and proper and such direction shall be binding on the Council. Ground C(i) of the dissolution order specifies that the Council of Common Interests had not discharged its Constitutional functions to exercise its powers particularly in the context of privatisation of industries in relation to the subject-matter mentioned in Article 154. The petitioner has stated that the Council of Common Interests which had remained a dormant organisation since its creation was activated and three meetings were held on 12.1.1991, 21.3.1991 and 16.9.1991. The Council reached decisions on the apportionment of Indus Water Authority. It also approved for the first time its rules of procedure. It also prepared for the next meeting of the Council in May 1993 and pre-CCI meeting was held with the Chief Ministers. Under this ground reference has been made to privatisation which relates to WAPDA, Electricity and Railways. It was pointed out that WAPDA has not so far been privatised and only an exercise is being carried on to see the feasibility of privatisation. So, is the case with electicity and so far Railways is concerned, there has been no scheme for privatisation except that ticketing in certain areas has been privatised. From the correspondence filed by both the parties and the documents brought on record it seems that the Chief Minister of Sindh as late as March 1993, made a grievance about the privatisation of WAPDA. Such a complaint was also made by the Chief Minister of N.W.F.P. The gievances set out do not relate to any other items of conflict in that area. The objections raised were in respect of matters which were yet to be considered and could have been sorted out in future. However, the workig, the performance, the actions taken by the Council of Common Interests during the past two years was not commented upon or objected to. In these circumstances, the allegation that the performance was not in accordance with the Constitution or it was not perfect and proper cannot be made a ground for dissolution of the National Assembly. The learned Attorney-General referring to the observation in Khalid Malik’s Case PLD 1991 Karachi 1 and Khawaja Ahmad Tariq Rahim’s Case PLD 1992 SC 646 made in respect of the Council of Common Interests, contended that similar ground mentioned in the Dissolution Order made in 1990 was held to form a basis for dissolution of the Assembly. It may be pointed out that the grounds regarding CCI in the case of 1990 and in the case of 1993 were completely different. While dismissing the National Assembly in 1990 was stated that the Federal Government had not allowed to convene or to hold the meeting of CCI. There had been protests by three Provinces, but no heed was paid. In fact two Provinces had even filed petitions in Court for convening the meeting of the CCI. In this way the charge was that the Federal Government intentionally obstructed.

Grounds C(ii) and C(iii) are sufficiently vague. However, so far the working of the National Economic Council and its executive committee is concerned, the petitioner has brought material on record to show that meetings were regularly held and problems were sorted out. The National Economic Council which is an advisory body met regularly every year (20.5.1991 and 5.5.1992) in accordance with the practice in vague since 1973 to approve the next year development plan and policies on the basis of comprehensive papers prepared by the Planning Commission and other Ministries concerned. The next meeting was scheduled to be held in May 1993. Similarly the executive committee of the National Economic Council held meetings regularly at least four times a year with the participation of Provincial Finance and Planning Ministers and other officials, the last three meetings were held on 17.10.1992, 11.2.1993 and 6.3.1993 to approve a large number of projects in all sectors. These grounds, however, do not sastisfy the test laid down by this Court for passing an order of dissoution of the National Assembly. Under ground C(iii) of the dissolution order it was stated that the Constitutional powers, rights and functions of the Provinces have been usurped, frustrated and interfered with in violation of inter alia Article 97. This has been denied by the petitioner and in fact the description is so vast, wide and vague that it can hardly justify the order of dissolution.

Per Justice Ajmal Mian –

In my view, the Federal Government should have brought the matter of privatization in respect of the items covered by the above Constitutional provisions before the CCI. The petitioner’s pleae that, it was not mandatory is not sustainable. In case of any dispute between the Federation and a Provincial Government, the Constitution provides mechanism in the form of Articles 184(1), 154 and 155. It may be stated that under the above Article 184(1) a suit can be filed in this Court in respect of any dispute between any two or more Governments, whereas under Articles 154 and 155 the disputes of the matters referred to therein can be brought before the Council of Common Interests.

Article 175(2) — Expression “jurisdiction” in Article 175(2), meaning — Term “jurisdiction” is defined to be the power of the Court to hear and determine a cause and exercise judicial power in relation to it — No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.

Per Saad Saood Jan J., & Sajjad Ali Shah, J. – CONTRA –

The first is contained in Article 175(2): it states that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. The expression “jurisdiction” has been defined to be the power of the Court to hear and determine a cause and exercise judicial power in relation to it.

CHIEF SECRETARY. V. SIKANDAR HAYAT KHAN PLD 1982 SC (AJ&K) 112.

(b) Constitution of Pakistan(1973), Article  154

In my view, the Federal Government should be have brought the matter of privatization in respect of the items covered by the above Constitutional provisions before the CCI. The petitioner’s plea that, it was not mandatory is not sustainable. (p. 715) X