The Order of Dissolution was challenged by the Speaker of the National Assembly, Gohar Ayub, before the Lahore High Court.
While his constitutional petition was pending, Nawaz Sharif, the deposed Prime Minister, filed a constitutional petition under Article 184(3) of the Constitution directly before the Supreme Court, challenging the order of dissolution of the National Assembly on the ground of violation of fundamental rights.
This petition was heard by a Bench of eleven judges, headed by the Chief Justice Nasim Hasan Shah, on a day-to-day basis. The Supreme Court accepted the constitutional petition by a majority of ten to one on 26 May 1993, holding in its short order that the impugned order of dissolution did not fall within the ambit of the powers conferred on the President in this behalf and was, therefore, not sustainable under the Constitution.
The National Assembly, the Prime Minister and his Cabinet were thus restored and were held entitled to function with immediate effect. The appointment of the caretaker government was held to be of no legal effect. However, all actions taken and orders passed by the caretaker government, which were in accordance with the Constitution and which were required to be done and taken for the ordinary orderly running of the State were held to be valid.
The Supreme Court, in its detailed judgement of 26 May 1993 (Muhammad Nawaz Sharif v Federation of Pakistan, PLD 1993 S.C. 473.) gave several reasons for setting aside the order of dissolution passed by the President. Some of the major reasons that prevailed with the Supreme Court in the judgement of the majority are enumerated below:
1. In the scheme of the Constitution, the Prime Minister, in administering the affairs of the government, is neither answerable to the President, nor is in any way subordinate to him. He is answerable only to the National Assembly. It is the President who is bound by the advice of the Prime Minister or the Cabinet in all matters concerning formulation of policies and administration of affairs of the government and not the other way about. The President and the Prime Minister are expected to work in harmony and despite personal rancour, and incompatibility of temperament, no deadlock, no stalemate, no breakdown can arise if both act in accordance with the terms of the respective oaths taken by them while occupying their high offices.
2. Regarding the speech of the Prime Minister made on 17 April 1993, it was held that the material placed before the Court satisfied it that the opinion formed by the Prime Minister that the President had ceased to be a neutral figure and had started to align himself with his opponents and was encouraging them in their efforts to destabilize his government, was indeed one that could be reasonably entertained.
3. No man, howsoever high, can destroy an organ consisting of chosen representatives of the people unless cogent, proper, and sufficient cause exists for taking such a grave action and that no such situation had arisen or could be said to have arisen on account of the Prime Minister.
4. The speech of the Prime Minister did not amount to subversion of the Constitution, nor could it create a complete deadlock or stalemate resulting in collapse of constitutional machinery. If a speech does not create lawlessness, disorder, or threat to security or disruption, it would hardly amount to subversion of the Constitution.
5. Resignations from the Cabinet could not be a sure indication of lack of confidence in the government, nor do they affect or impair the smooth functioning of parliamentary democracy. The resignations of the ministers would be wholly irrelevant while taking into consideration or forming grounds for taking action under Article 58(2)(b) of the Constitution.
6. The ground of lack of ‘transparency’ in administration or privatization was held as vague criteria, not referable to any statutory provision, thus making the satisfaction of the empowered authority subjective and not objective. Such a ground for taking action under Article 58(2)(b) was held to be far-fetched, a matter of degree and quite unjustified, particularly in an environment of secrecy of financial transactions and non-existence of freedom to obtain information.
7. The allegations of corruption, maladministration, incorrect policies being pursued in matters financial, administrative, and international, were held to be neither independently decisive nor Within the domain of the President for action under Article 58(2)(b) and thus wholly extraneous.
8. The President had no authority to receive resignations of the members of the National Assembly which had to be handed over personally by the members concerned to the Speaker of the National Assembly. Thus, resignations handed over to the President had no constitutional validity or value and these documents could not form the basis for arriving at the conclusion that the National Assembly had lost its representative capacity.
9. The requirements of Article 58(2)(b) of the Constitution are all objective and relatable to the various constitutional provisions.
10. The grounds mentioned in the dissolution order of 18 April 1993, neither collectively nor individually, justified the inference that a situation had arisen in 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 was necessary.
Justice Saad Saood Jan, while agreeing with the majority view on the merits of the case, held that the petition was not maintainable under Article 184(3) of Constitution.
Justice Muhammad Rafiq Tarar to the extent of observing that the President had power to dismiss a prime minister, directly or indirectly, howsoever illegal, unconstitutional; or against public interest his actions might look to him.
The President, according to him, by removing the Prime Minister under the cloak of the powers contained in Article 58(2)(b) and dissolving the National Assembly might be accused of subverting the Constitution within the meaning of Article 6 of the Constitution.
Nine judges out of the majority held that the petition was maintainable having reference to enforcement of the fundamental rights or any of them. Justice Shafiur Rehman, rendering the leading judgment, ventured into the determination of the discretionary power of the President to appoint chiefs of the armed forces. Although this was not apparently a list before the Court, the learned judge proceeded to hold that the President’s discretionary power was restricted to the appointment of the Chairman of the Joint Chiefs of Staff and the appointment of the three Chiefs of Army, Air, and Naval Staff could only be made by the President on the advice of the Prime Minister. This interpretation appears to be very attractive on the face of it, but with due respect to the learned judge who undoubtedly has been one of the competent judges in Pakistan, it does not appear to be correct application of the established principle of statutory interpretation to the plain reading of the language of Article 243(i)(c) as amended by the RCO (PO 14 of 1985) that amendment made in a statute becomes part and parcel of the parent statute and cannot be read separately therefrom.
Justice Sajjad Ali Shah, the lone dissenter, came up with a strong opinion differing with his colleagues, both on the question of merit as well as on the question of maintainability of the petition. He held that the petition could not be filed straight-way in the Supreme Court because Article 184(3) could not be invoked for the reason that there was no fundamental right available to the petitioner to continue the government till the tenure came to an end.
He made a comparison between the case of Ahmad Tariq Rahim in order to show that the material produced in the present case was both qualitatively and quantitatively superior to that of the case of Tariq Rahim. He observed that the same yardstick for evaluation of material and interpretation of Article 58(2)(b) should be followed and no departure should be made from the guidelines laid down in the cases of Haji Saifullah and Ahmad Tariq Rahim by the Supreme Court.
He took notice of the fact that Islami Jamloori Ittehad, an amalgam of several parties, jointly contested the elections and formed government but the several parties dissociated themselves from it and even the Muslim League was split into two groups, the Nawaz Sharif Group and the Junejo Group.
Hence, he held that IJI was not, at the time of dissolution, the same group of political parties which had been voted into power. He held that the prime minister and the president, have to work together in an atmosphere of congeniality to run the daily affairs of the government. The fact that a situation creating stalemate in the working relationship of the two pillars of the government had become a fait accompli validly enabling the President to exercise his discretionary power under Article 58(2)(b).
Regarding the grounds of maladministration, corruption, and nepotism, the learned judge took notice of the sale of Muslim Commercial Bank and eight cement factories to the Mansha Group, a favourite of Nawaz Sharif.
The learned judge observed that there was no difference in the case of Ahmad Tariq Rahim and the one in hand in so far as allegations, grounds of dissolution, and material produced in support thereof were concerned, and that a departure was made and the same yardstick of evaluation of material was not applied. He lamented that ‘seemingly it so appears that two prime ministers from Sindh were sacrificed at the altar of Article 58(2)(b) of the Constitution but when the turn of a prime minister from the Punjab came, the tables were turned’. While rendering his incisive dissenting opinion, the learned judge appeared to have forgotten that he was also making a departure from his own earlier dissenting opinion in the case of Ahmad Tariq Rahim.
Was he not expected or required to apply the same yardstick as he had done in his earlier judgement?
After holding the two cases similar and liable to similar result, was he not bound by his opinion in Ahmad Tariq Rahim’s case holding the order of the President invalid?
Moeed sheikh 