Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: TANVEER A. QURESHI VS Respondent: PRESIDENT OF PAKISTAN, PRESIDENT HOUSE, JUDGMENT
Court Name: Lahore High Court Judge(s): Malik Muhammad Qayyum, Sh. Ijaz Nisar Title:TANVEER A. QURESHI vs PRESIDENT OF PAKISTAN, PRESIDENT HOUSE,
JUDGMENT
Reported As: PLD 1997 Lahore 263 Result: Petitions dismissed Judgment JUDGMENT ' SH. IJAZ NISAR, C.J.---This judgment shall dispose of Writ Petitions Nos.677/97, 1036/97, 112/97 1479/97 and 1480/97 involving somewhat similar controversy. 2. The circumstances leading to the filing of these petitions are that on 6-1-1997 the President of Pakistan issued a notification purporting to amend the Rules of Business, 1973 so as to provide for establishment and constitution of a Council for national defence and security to aid and advise the Federal Government in the matters mentioned in the said notification. The notification reads as under:--- "In exercise of the powers conferred by Articles 90 and 91 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to direct that the following further amendments shall be made in the Rules of Business, 1973, namely:--- "In the aforesaid Rules: (A) Rule 20-A shall be replaced to the following:--- 20-A. Council for Defence and National Security.--(1) There shall be a Council for Defence and National Security to aid and advise the Government in: (a) Determination of national strategy and fixation of priorities in terms of overall national security. (b) Formulation of defence policy in accordance with national strategic objectives and securing of assessm ent and plans for the fulfillment of the defence policy. (c) Coordination of defence policy with external and domestic policies. (d) Definition of the task of the Armed Forces of Pakistan in accordance with the national strategy. (e) Economic and financial policies affecting defence and national security.
---
## Page 2
(f) Recommendations relating to internal security proclamations of emergency and any other matter of national importance referred to the Council for Defence and National Security by the President or the Prime Minister. (2) The Council for Defence and National Security shall comprise: (i) The President of Pakistan and Supreme Commander of the Armed Forces. (ii) The Prime Minister of Pakistan. (iii)The Minister for Defence. (iv)The Minister for Foreign Affairs. (v)The Minister for Interior. (vi)The Minister/Adviser to the Prime Minister for Finance. (vii)Chairman, Joint Chiefs of Staff Committee. (viii) Chief of the Army Staff. (ix) Chief of the Naval Staff. (x) Chief of the Air Staff. (3) The President shall chair the meetings of the Council for Defence and National Security. (4) The Council for Defence and National Security shall meet as and when required. (5) The Principal Secretary to the President shall be the Secretary of the Council for Defence and National Security. The Cabinet Secretary, Secretary, Defence Division and Director-General Inter Services Intelligence will be regularly in attendance. (B) In Schedule II, in Serial No,5, after Entry 28, the following new entry shall be added, namely: "29. Council for Defence and National Security and matters relating thereto." (C) In Schedule V-B, Serial No,11 and the entries relating thereto in the second and third columns shall be omitted." 3. Mr. Tanvir Ahmed Qureshi, petitioner in W.P. No,677/97, who is 'an Advocate of this Court, has called in question the validity of the said notification on various grounds which have been elaborated by Mr. Talib H. Rizvi, Advocate. He submitted that after exercising the power under Article 58(2)(B) of the Constitution, the President is empowered to dissolve the National Assembly and appoint a Caretaker Cabinet to hold fresh elections in the country but he has no authority under the law to legislate or pass any order which is beyond the scope of holding the elections. According to him, amendment made by the President in the Rules of Business and creating Council for Defence and National Security (hereinafter referred to as C.D.N.S.) amounts to legislation and amendment of the Constitution. He added that the provision about forming C.D.N.S., was first introduced by late Gen. Muhammad Ziaul Haq as Chief Martial Law Administrator through Article 152-A of the Constitution, which was later omitted by 8th Amendment. According to him, formation of C.D.N.S., through an amendment in the Rules of Business amounts to bring back and reviving the provisions earlier omitted in the Constitution. Neither the Caretaker Prime Minister nor the Cabinet had power to give approval to the said provision. Similarly, the President had no power to amend the Rules of Business so as to revive the provision which was earlier omitted under a Constitutional amendment. By creating the C.D.N.S., the President destroyed the basic structure of the Constitution which envisaged a parliamentary system of Government. He maintained that C.D.N.S., could not be formed on the advice of Caretaker Prime Minister and his Cabinet which was to take care for a limited period of day-to-day routine business. He went on to say that it was the function of a properly elected Legislature and not of the Caretaker Cabinet. It was not lawfully done since the idea had flowed from the President and he sent the matter to the caretaker Cabinet for approval. As per Constitution, the advice must have been made by the Prime Minister to the President, but it was the other way round in this case. 4. Learned counsel contended that the impugned amendment was ultra vires of the Constitution inasmuch as it, hits at its basic structure. He said that the amendment had, in fact, given birth to a
---
## Page 3
new law through an illegal and improper mode. According to him, Articles 90 and 99 of the Constitution, on the support of which the President had made the amendment in question which also spells out the power of the President and the Federal Government, do not allow a Caretaker Prime Minister to be a consultee in this regard, hence the amendment in question had transgressed the Constitution. Lastly, he contended that the law of permanent nature could not be made on the advice of a caretaker Cabinet, which in the interim period, had the sole business of conducting the elections. 5. Mr. Shahzad Jehangir, learned Attorney-General argued that the existing system of the Government was not purely Parliamentary but Presidential and the President had been left with a large number of functions to perform on his own and he is not merely a titular head of the State. As the Supreme Commander of the Armed Forces, the President is concerned with all matters of security, he in his discretion appoints the three services Chiefs, besides the Chairman of the Joint of the Chief Staff Committee. He maintained that the President had formed the C.D.N.S., in exercise of his executive powers to formulise the process of seeking expert advice in a comprehensive manner on security matters. No Constitution violation was involved in its formation, as there was nothing in any law to bar the President from seeking advice from whomsoever, he wanted. Mr. Shahzad Jahangir stated that the Council was set up on the advice of the Caretaker Federal Government, which was binding on the President. He maintained that security of the country was related not only to its frontier but also to its internal conditions. There was no bar on the President in having advice from any of the State Organs. Being Supreme Commander of the Armed Forces, the President was within his jurisdiction to consult the four Chiefs on matters relating to defence and security of the country. What he did in this case was to formulise the consulted process having all the four Chiefs as Members of the said Council. According to him, the action regarding the formation of C.D.N.S., was of an executive nature and was in no way in conflict with the Constitution. Amending the Rules' of Business could not be termed as amending the Constitution, he maintained. Highlighting the need to set-up the C.D.N.S., he maintained that it was to avoid the political crises in the country. The Council was an advisory body whose recommendations were not binding on the Federal Government. 6. Mr.M.D. Tahir, Advocate supported the creation of C.D.N.S., on the ground that it would provide a check on the Legislature, which had little interest in the welfare of the people. He also sought expansion of C.D.N.S., by inducting all the Chief Justices. 7. After. Hearing the petitioners' learned counsel as also Mr. Shahzad Jehangir, learned Attorney- General for Pakistan, we keeping in view the importance of the controversy asked Mr. Sharif-ud-Din Pirzada, Senior Counsel Supreme Court of Pakistan to assist us "amicus cariae". We are grateful for the valuable assistance rendered by him. 8. Mr.Sharif-ud-Din Pirzada urged that the Eighth Amendment had made no substantial change in the system of Government, which remained parliamentary in nature. Mr. Pirzada said that C.D.N.S. Was nothing more than an administrative "amicus". The concept had been borrowed from the United States which enacted a National Security Council Act in 1947. The Turkey followed the same in 1962 by an amendment in its Constitution and there had been no military takeover since then in that country. Late Gen. Muhammad Zia-ul-Haq had introduced it through the Revival of Constitution Order, 1985 but it was dropped under pressure from an apprehensive Martial Law Weary Parliament. Mr. Pirzada said that there was nothing in the Constitution or law that would bar the formation of the C.D.N.S., and that a solitary measure could not become illegal only because it had been taken under a wrong provision. He said that the new elected Government would have the power to undo it or change its composition. Mr. Pirzada quoted B.S. Giving warning that:- "No legal rule can guarantee the preservation of Parliamentary system in the absence of political ethics and maturity of a very high standard."
---
## Page 4
' He also quoted a warning by the Quaid-a-Azam in his speech at the Quetta Staff College that:--- "Representative Governments and the Parliamentary practices are, no doubt, good and desirable, but when people want to reduce them merely to channels of personal aggrandizement, they do not only lose their value but also earn a bad name." 9. Mr. Sharif-ud-Din Pirzada contended that the constitution of C.D.N.S., does not alter the Parliamentary character of the system as it was just an advisory body at the executive level, its recommendations were also not binding on the Federal Government and such bodies also exist in U.S.A. Turkey and other countries to strengthen the defence and national security system with mutual consultation. He expressed the view that the parliamentary system did not exist anywhere in the world except in Britain where it is sustained .By conventions which is not possible to be emulated by any other State. He said that some other States, like India, Australia, Canada and Italy had parallel Presidential powers like us where the character of their system was essentially parliamentary. According to him the 8th Amendment in fact had created a balance in favour of parliamentary system because Mr. Z.A. Bhutto initially converted the Presidential system into Parliamentary one, concentrating powers in the office of Prime Minister. According to him, Constitution of Islamic Republic of Pakistan, 1973, nowhere distinguishes the powers of a caretaker Government from those of the elected one except the tenure, as such, the same type of the Caretaker with similar powers as enjoyed by the elected Government had also been recently inserted in the Bangladesh Constitution. 10. In the other Constitutional petition on the same subject (W.P. No,1036/97) filed by Mr. Abdul Rehman Cheema, again an Advocate of this Court, he too has objected to the formation of the Council for National Defence and Security. The objections raised by the learned counsel were almost similar to those of Mr. Talib H. Rizvi, Advocate. Additionally, it was argued by Mr. Cheema that the President could not have appointed either a Caretaker Prime Minister or a Caretaker Cabinet after dissolving the National Assembly as the Constitution envisages an elected Prime Minister, who is responsible to the Parliament. II. The formation of the C.D.N.S. Has also been challenged in the two other petitions namely W.P. No,1479 of 1997 and W.P. No,112 of 1997 on almost similar grounds. We have heard the petitioner in W.P. No,1479/97 in person and the learned counsel for the petitioner in W.P. No,112 of 1997. The contentions raised by them are almost same as were advanced by Mr. Talib H. Rizvi and Mr. Abdul Rehman Cheema, Advocates. 12. The first objection raised by the learned counsel for the petitioner on the validity of the notification was in respect of the powers of the President to issue such a notification. Relying upon the judgment of the Supreme Court in the case of Mian Muhammad Nawaz Sharif v. Federation of Pakistan etc. PLD 1993 SC 473, it was urged that the system of the Government being parliamentary in nature the President does not enjoy any inherent or residual power but can only exercise those powers which are specifically spelt out in the Constitution which does not envisage setting up of such a body like C.D.N.S., and as such the notification is ultra vires the Constitution. 13. The learned Attorney-General for Pakistan, on the other hand, has urged with vehemence that after the promulgation of the Constitution (Eighth Amendment) Act, 1985, the President has become repository of the executive authority of the Federation and is its Chief Executive. In his submission, as a consequence of the said amendment, the form of Government has become more Presidential than Parliamentary in nature. 14. Mr. Sharif-ud-Din Pirzada, the learned amicus curiae, however, did not agree with the submission made by the learned Attorney-General and categorically stated that notwithstanding the changes brought about by the Constitution (Eighth Amendment) Act, 1985, the form of Government remains to, be parliamentary though certain powers have been given to the President enabling him to act in his discretion in the matters specified in the Constitution.
---
## Page 5
15. There is no dispute that the Constitution of Islamic Republic of Pakistan, 1973, as originally enacted envisaged setting up of Parliamentary form of Government in which. The Prime Minister was the Chief Executive and Head of the Cabinet which in turn was responsible to the Parliament. It has been pointed out with his usual skill by Mr. Sharif-ud-Din Pirzada that the system. Of Government under the original Constitution could more appropriately be called "Prime Ministerial" rather than parliamentary as it had a definite tilt in favour of the Prime Minister, not found in any other country where parliamentary form of Government is in vogue. 16. Before proceeding any further, we may dispel the prevalent misconception that only that system of Government can be said to be Parliamentary in nature if it conforms in all material respect to the system prevailing in United Kingdom. There is no warrant for such an assumption. In fact the British Parliamentary system is unique inasmuch as the country is being run on the basis of conventions which had developed over the years without there being a written Constitution. There are other Parliamentary democracies in the world like India, Australia, Canada which differ in many respects from The British system but it has never been doubted that the form of Government in those countries is Parliamentary in nature. To us it is clear that a Constitutional set-up which provides for the supremacy of the Parliament and Governance of the country by a Cabinet comprising of elected representatives of people which is responsible to the Parliament, is Parliamentary in nature. The division of powers between the Head of the State, Chief Executive and other Constitutional functionaries is not of much importance. In the recent case of Al-Jehad Trust through Raeesul Mahajideen Habib-ul-Wahab-ul-Khairi v. Federation of Pakistan and others commonly known as second Judges case, Constitutional Petition No,23 of 1996 (PLD 1997 SC 84), Saiduzzaman Siddiqui, J. Observed that:--- "The nature of the Constitution, whether it is Parliamentary or Presidential in character is determined by the scheme of a Constitution. In a Constitution which envisages a Parliamentary system of Government, the Parliament is considered supreme to all other organs of the State and the Cabinet consisting of Ministers and Prime Minister is responsible for running and managing the affairs of the Government. The concept of responsible Government of collective responsibility of Cabinet to the Parliament is inherent in this system. So long these features are present in the Constitutional scheme, the system retains the characteristics of a Parliamentary form, irrespective of the fact that some other powers under the Constitution are exercised by the Prime Minister. Mr. S. Sharifuddin Pirzada, the learned amicus drew our attention to various Constitutions enforced in the countries of the world, which though envisaged Parliamentary system of Government but the distribution of powers between the Prime Minister as the Chief Executive and the President as head of the State are arranged in these Constitutions differently." 17. In support of his contention that as a result of the 8th Amendment the form of Government stands transformed into presidential system, the learned Attorney-General has in particular referred to Article 90 of the Constitution. He emphasised that while earlier the executive authority of the Federation was to be exercised in the name of the President by the Federal Government consisting of the Prime Minister and the Federal Ministers acting through the Prime Minister as the Chief Executive of the Federation, after the amendment the executive authority stands specifically vested in the President and has to be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. According to the learned Attorney-General this marked difference in the language clearly shows that the President is no longer a titular head but is the Chief Executive of the Government. He relied upon the observations of Rustam S Sidhwa, J., in the case of Kh. Ahmad Tariq Rahim v. Federation of Pakistan PLD 1992 SC 646 which appear at page 684 of the report are to the effect that the basic character of the Constitution was now amix; it is not presidential; it was never meant to be. It is not totally Parliamentary as it was intended.
---
## Page 6
18. We are not impressed with this contention. Although as pointed out by the learned Attorney- General the language used in Article 90 had undergone a drastic change but in our view the change in language is not of much importance or conclusive in determining the nature of Government envisaged by the Constitution even after the 8th Amendment. True enough that in Article 90, as amended, it is stated that the executive authority vests in the President and is to be exercised by him directly or through his subordinates but it is also provided that the powers shall be exercised in accordance with the Constitution which includes Article 48(1) which obliges the President to act on the advice of the Prime Minister or the Cabinet except in certain cases. Much emphases were laid on the fact that the power to dissolve the National Assembly vests in the President in view of Article 58(2)(b) of the Constitution and also that the President has the power to appoint certain high-State functionaries independent of the advice of the Prime Minister. As already observed by us, the form' of Government does not depend upon the division of power between the functionaries under the Constitution. On the other hand, what is to be seen is that where the Parliament remains to be supreme and the country is to be governed by the Cabinet comprising of the Prime Minister and the Ministers responsible to the Parliament, the system would remain to be Parliamentary in character. We may also state that the language of Article 90 of the Constitution after its 8th Amendment is the same which is used in Article 53 of the Constitution where it has never been doubted that the system of governance was Parliamentary in nature. It has been pointed out by Mr. Sharif-ud-Din Pirzada that similar language was used in the Government of India Act, 1935 as also in certain other Constitutions like those of Australia, Canada and Ireland. 19. It is unnecessary to dilate upon any further in the matter as the Supreme Court of Pakistan has consistently held that the system prevailing in Pakistan continues to be Parliamentary in nature. It was so held in the cases of Federation of Pakistan v. Haji Saif Ullah Khan PLD 1989 SC 166, Mian Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 738 and recently in the second Judges case, Al-Jehad Trust through Raees ul Majahideen Habib AlWahabul Khairi v. Federation of Pakistan supra. In the said case, Syed Sajjad Ali Shah, Honourable Chief Justice of Pakistan took notice of similar argument raised before the Supreme Court and the difference brought about by the 8th Amendment in Articles, 48, 51, 56, 58, 59, 60, 75, 90, 91 101, 105, 106, 112, 116, 130, 144 and 152 of the Constitution. In para. 64 of his judgment, learned Chief Justice speaking for the Court observed that it would appear that by virtue of 8th Amendment more powers have been given to the President to provide him the effective role but the Parliamentary form of Government has been retained. It was specifically observed that the Amendments inserted by Constitution (Eighth Amendment) Act, 1985 did not show that the form of Government in the Constitution of Islamic Republic of Pakistan, 1973 has been changed from Parliamentary to Presidential. In the same case Saeedudzaman Siddiqui, J., in para. 21 of the judgment examined the changes brought about by 8th Amendment in Article 90 in detail. The following observations appearing in para. 25 of the judgment are as under:- "From the above discussion, it is quite clear that the changes brought about in Article 48(1) and (2) and Article 90 of the Constitution through the 8th Amendment were neither unique nor extraordinary in character nor they were unknown in the Constitutional field. The makers of the Constitution, therefore, were deemed to be aware of the scope of these amendments and the manner in which these amendments were interpreted. In my view, therefore, the powers of President under the Constitution remained confined only to the extent they were conferred on him specifically under the Constitution " ' In view of this latest judgment of the Supreme Court, we have no hesitation in repelling the contention of the learned Attorney-General.
---
## Page 7
20. This conclusion, however, does not in any manner advance the petitioner's case, for, it has been stated before us by the learned Attorney-General and we have no reason to doubt his statement that the decision to establish C.D.N.S. Was taken and the notification in question was issued in this behalf by the President not in his own discretion but on the advice of the Cabinet. 21. Mr. Abdul Rehman Cheema, Advocate-petitioner in the connected petition has contended before us that the appointment of Caretaker Cabinet by the President after dissolution of the National Assembly was unconstitutional as only a person who is elected Member of the National Assembly and not a stranger can be appointed as Prime Minister even during the interregnum. The learned counsel emphasised that in a Parliamentary system the Government can only be run by the elected representatives of the people who are responsible for their actions to the Parliament. 22. This contention of the learned counsel is wholly without force. The two aspects which have been highlighted by the learned counsel undoubtedly are attributes of a Parliamentary form of Government but cannot be made basis for denying the power to the President to appoint a Caretaker Government headed by a Prime Minister in view of the clear language of Article 48(5) of the Constitution. The general rule that Prime Minister must be a member of the National Assembly and the Government must be answerable to the Parliament must yield to the exception created by Article .48(5) where on account of dissolution of National Assembly it is impossible to appoint one of its members as Prime Minister. 23. The Constitutional position appears to be totally different from what has been urged by the petitioner's learned counsel. Even at the time when the National Assembly stands dissolved, the governance of the country must be on the aid and advice of a Cabinet which has to be headed by a Prime Minister. In the case of Federation of Pakistan and others v. Haji Muhammad Saif Ullah Khan and others PLD 1989 SC 166, the Supreme Court…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.