The Constitution of Pakistan, 1973 Developed by Zain Sheikh

MUHAMMAD NAWAZ SHARIF

V/S

PRESIDENT OF PAKISTAN AND OTHERS

Per Shafiur Rahman, J

(a) Constitution of Pakistan(1973), Articles, 6, 12 & 56

Enquiries made from the Federal Government reveal that though the Constitution was framed in 1973 and the Parliament also discharged its duty on 29-9-1973 by framing the requisite law on the subject, in terms of section 3 of the High Treason (Punishment) Act, 1973, the Federal Government has not so far designated the authorised person on whose complaint such an offence can be taken cognizance of by the Courts. The failure here is not of the Constitution, not of the Parliament but of the executive Government and that too since 1973 of not giving a salutary Constitutional provision a meaningful content and operational mechanism, thereby frustrating it altogether. (p. 601) H

Per Saleem Akhtar, J

(b) Constitution of Pakistan (1973), Article 6

Right of expression and speech is conferred by the Constitution and is regulated by law. Every restriction on free speech must pass the test of reasonableness and overriding public interest. Restriction can be imposed and freedom of expression may be curtailed provided it is justified by the “clear and present danger” test that the substantive evil must be extremely serious and the degree of imminence extremely high. The danger should “imminently threats immediate interference with the lawful and pressing purposes of the law” requiring immediate step to ensure security of the country. Speech would be unlawful if it is directed to inciting or producing imminent lawless action and is likely to produce such action. Speech and conduct are two different concepts. Speech relates to expression and conduct to action. Speech ends where conduct begins but if both are combined the Court has to draw the dividing line. As held in American Communications Association v. Douds (1950) 399 US 382 the freedom of expression of views in curtailed or restricted when they “threaten clearly and imminently to ripen into conduct against which the public has a right to protect itself”. The concept of “clear and present danger” in USA was liberalised by making “imminence” as basic test. (p.832)V

“Fear of serious injury cannot alone justify suppression of free speech and assembly…. there must be reasonable ground to fear that serious evil will result if free speech is practised. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one…. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.” (p. 833)W

The effect, weight and impact of speech is to be judged from an overall appreciation by looking to its background, the truthful statement made in it and object with which it has been made. If such a speech makes allegation or defames anyone without any justification, but does not create lawlessness, disorder, or threat to security or disruption, it will hardly amount to subversion of the Constitution. (p. 833)X

Per Saeeduzzaman Siddiqui, J

(c) Constitution of Pakistan (1973), Article 56

There is nothing either in Article 56 of the Constitution or in Rules 40 to 47 of the Rules of Procedure and Conduct of Business in National Assembly, 1992, to suggest, that address of the President to the joint session of the two Houses at the Commencement of the first session after each general election to the National Assembly and at the commencement of the first session year, would reflect the policies of the Government and not the views of the President. I am, therefore, of the view that the address of the President to the joint session of Parliament on the occasion of first session of each year, is his Constitutional duty under Article 56(3) of the Constitution and in his address the President is not bound by the policy or views of the Government in power. The President is free to express his own views and assessment in respect of any matter concerning the functioning of the Government in power in his said address to the joint session of Parliament. (p. 881)U