P L D 1997 LAHORE 263




Frame (1)

Per: Sh. Ijaz Nisar, C.J.

(a) Constitution of Pakistan Arts. 99, 70, 89, 90, & 239–

We are unable to accept this contention. If the creation of a Constitutional Body or Organisation is reliable to the provision in the Constitution its status and its nature would stand on a much higher footing than that of a body set up either ordinary law or by administrative decision of the Government. One more difference would be as regards the doing away with such an Organisation which if created by Constitution can only be disbanded by amending the Constitution while in the case of Body set up administratively it can be abolished by revoking the notification.[p.277]F

(b) Constitution of Pakistan (1973) Art. 99

The two apprehensions expressed by Mr. Talib H.Rizvi and Mr. Abdul Rehman Cheema in this respect were firstly that; C.D.N.S. would be a supra body over and above the Cabinet and would undermine its authority particularly when Heads of the Armed Forces have been members and secondly; that this arrangement tantamount to bringing the Armed Forces into political activities and governance of the country. Both these apprehensions are wholly unfounded and baseless. According to the impugned notification, the Council has been constituted in order to advise the Government only in matters of defence and national security. The role of the national council is thus advisory and recommendatory. The recommendations made by the Council have no binding effect on the Government or the Cabinet. It is total misconception, therefore, to say that the Council can in any manner override the decisions of the Cabinet or takes its place. [pp. 281]K

It was next argued by the learned counsel for the petitioner that the formation of the Council at this stage tied down the hands of the succeeding Government which is to comprise of elected representatives of the people. This apprehension again to be unfounded. The petitioners are labouring under misconception that the formation of the Council is for all times to come. On the other hand, the constitution and existence of the Council is essentially linked up with the caretaker set-up. However, its continuance, which may appear to be desirable and beneficial, would depend upon the decision of the Parliament/elected Government, which, we are sure, shall be taken keeping in view the national interest. There is noting in the notification under challenge, which takes away the powers of the succeeding Government to reconsider or review the decision to set up the Council.
[p. 282]L

It is surely a question of property for forming the Council and its continuance is not for us but is for those charged with the function of running the Government to decide. It is reiterated that the apprehension that in any manner the powers of the Prime Minister or the statutory functionaries is not Constitutional in nature but its role is only recommendatory and advisory.[p. 282]M

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