P L D 1989 Supreme Court 75 (PLP)

Per Muhammad Afzal Zullah, J.

(d) Constitution of Pakistan (1973)‑‑ ‑‑‑ Art. 186‑ ‑Reference by the President‑ ‑Reference has to be answered in accordance with the opinion of the Court regarding the interpretation of law and the Constitution‑ ‑Supreme Court cannot decide the matter as a lis between the parties, wherein exercise of other powers is available to the Court including discretionary and taking other consequential actions. Per Shafiur Rahman, J.‑‑ (e) Constitution of Pakistan (1973)‑‑ ‑‑‑Art. 186‑‑Reference by the President‑ ‑President is the sole judge of the public importance of the question and the desirability of referring it to the Supreme Court‑‑Only a question of law can be referred to Supreme Court under Art.186. (f) Interpretation of Constitution‑‑‑ ‑‑‑Where the provisions of a Statute or Constitution relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, without promoting the essential aims and objects of the maker thereof such prescription are generally understood as directory only‑‑Neglect of them may be penal but it does not affect validity of the act done in disregard of them. (g) Constitution of Pakistan (1973)‑‑ ‑‑‑Art. 254‑‑Provisions of Art. 254 envisage delay in performance of duty or doing of the mandated act but then makes allowance for the delay without defeating the action or the performance of the duty. (h) Constitution of Pakistan (1973)‑‑ ‑‑‑ Art. 73(2)(c)‑ ‑Expression "the issue of money from that fund" ha‑s no other meaning except authorising of expenditure from consolidated fund‑‑Word "issue" means "to put into circulation, to send out officially and to deliver for use" . (i) Constitution of Pakistan (1973)‑‑ ‑‑‑ Art.89‑‑Power of President to promulgate Ordinance‑ ‑Expression "when National Assembly is in session"‑‑A session is the period of time between the meeting of Assembly, whether after a prorogation or a dissolution, and its prorogation. May's Parliamentary Practice at page 271, 20th Edition ref. (j) Constitution of Pakistan (1973)‑‑ ‑‑‑Arts.86, 89, 83(3), 82(2) & 128‑‑Financial procedure‑ ‑Powers of Federal Government. Article 86 empowers Federal Government in a given situation to authorise expenditure‑ from Federal Consolidated Fund for a period not exceeding four months. This is a Constitutional entrustment of legislative function on terms to the Federal Government and this is an exception to what is provided in Article 83(3). The capacity of the Federal Government while exercising this power is distinct in the Constitutional framework from the Ordinance making power of the President (Article 89). As regards the object of the two powers, the distinction should be equally clear. As long as power under Article 86 is available, the precondition required for exercise of power under Article 89 will not and cannot arise. It is only when that reserve power under Article 86 gets exhausted that the exceptional reserve power recognized in Article 89 comes into existence. Such reserve and exceptional ‑powers have been considered consistent, with free Government only when their control is lodged elsewhere than in the executive who exercises them. Such a power has been likened to a safety valve to meet extraordinary situations and designed to save and not to destroy democracy. Such provisions remedy the rigidity of a Federal Constitution and make it flexible to an extent to be capable of meeting the challenges not totally outside the ken of the framers of the Constitution. However it should be clear that by its very nature in the context of the present impasse the power under Article 82(2) and Article 128 is capable of being invoked once so as not to exceed in all the period of four months under Article 89(2)(a) and three months under Article 128(2)(a). (k) Words and phrases‑‑ ‑‑‑ Word "issue" ‑‑Meaning. Aziz A. Munshi, Attorney‑General for Pakistan‑Malik Muhammad Qayyum, Deputy Advocate‑General; Sajjad Ahmad Sipra, Deputy Advocate‑ General‑, Khalil Ramdey, Advocate‑General Punjab; Tanvir Ahmad Khan, Additional Advocate‑General Punjab and Fazal‑e‑Hussain Advocate‑o n‑ Record for President. Khalil Ramday, Advocate‑ General Punjab; Muhammad' Nawaz Abbasi, Assistant Advocate‑ General Punjab and Rao Muhammad Yousuf Khan, Punjab Government Attorney for Speaker Punjab Assembly. Abdul Ghafoor Mangi, Acting Additional Advocate‑ General Sind for the Speaker Sind Assembly. J.D. Akberji, Advocate‑ General N. ‑W.F.P. for the Speaker N.‑W.F.P. Assembly. Yakoob K. Eusafzai, Advocate‑ General Baluchistan for the Speaker Baluchistan Assembly A.Karim Malik, President on behalf 01 Lahore High Court Bar Raja M. Akram, President on behalf of Lahore High Court Bar Rawalpindi Bench. Syed Saghir Hussain Jafri, President on behalf of High Court Bar Association Sind. Aman Khan, President on behalf of High Court Bar Association N. ‑W. F. P. Riaz Ahmad, President on behalf of High Court Bar Association, Sh. Maqbool Ahmad, Advocate Supreme' Court ‑ for Acting Chairman Senate and Speaker National Assembly. S.M. Zafar, Senior Advocate Supreme Court (with Court permission) and Sh. Shaukat Ali, Senior Advocate Supreme Court (on 22‑10‑1988) as Amicus Curiae. Dates of hearing: 18th, 19th and 22nd October, 1988. Per Muhammad Haleem,; Dr. Nasim Hasan Shah; Abdul Kadir Sheikh, Javid Iqbal; Ghulam Mujaddid; Saad Saood Jan; Usman Ali‑Shah; Ali Hussain Qazilbash and Naimudin JJ‑‑The President' Pakistan has‑referred the following question o law of public importance to this Court for consideration and opinion under Article 186 of the Constitution: "In view of the aforementioned circumstances what measures may be adopted to enable the Federal and Provincial Governments to authorise incurring of expenditure out of Federal and Provincial Consolidated Funds mentioned above in the absence of National and Provincial Assemblies after 31‑10‑1988 till the respective Budgets are passed by the new National and Provincial Assemblies to be elected in the ensuing general elections as aforesaid." The circumstances of which specific mention has been made necessitating such a reference are the dissolution of the National Assembly on 29th of May, 1988 under Article 58(2)(b) of the Constitution and that of the Provincial Assemblies of the four Provinces under Article 112(2)(b., of the Constitution on the 30th of May, 1988 and 29th of May, 1988 (in the case of Baluchistan Provincial Assembly); the short order of this Court dated 5‑10‑1988 holding that the dissolution of the Assemblies was constitutionally untenable but not restoring those Assemblies in view of the Elections scheduled to be held for tile National Assembly on 16‑11‑1988 and for the Provincial Assemblies on 19‑11‑1988; the' total involvement of the people, of Pakistan, all the Political Parties, the Election Commission of Pakistan and all other concerned authorities/ agencies of the Federal and Provincial Governments in preparation for the Elections to be held on 16‑11‑1988 and 19‑11‑1988; the Constitutional mandate in Articles 86, and 126 empowering the Federal Government and the Provincial Governments to incur expenditure from the Federal Consolidated Fund and the Provincial Consolidated Fund in respect of the estimated expenditure for a period not exceeding four months in a financial year when the Assemblies stand dissolved, pending completion of the procedure prescribed in Articles 82 and 83 in respect of the, expenditure by the Federal Government and Articles 122 and 123 in respect of the Provincial Governments; the period of four months in A this financial year commencing from 1‑7‑1988 is due to expire on 31‑10‑1988; even after the Elections have been held sometime will be required to make the National and Provincial Assemblies functional for the purposes of authorizing the expenditure and in the interregnum, the Federal as well as the Provincial Governments are obliged to incur the expenditure mentioned in Articles 81 and 82 as well as Articles 121 and 122 for running the affairs of the State, and the Federal Government and Provincial Governments are also obliged to repay the loans to the local act foreign creditors from time to ,time after 31‑10‑1988. The said expenditure is unavoidable and Is on account of State necessity. Even the conduct of the general elections to be held on 16‑11‑1988 and 19‑11‑1988 as enjoined by this Court. will necessitate the incurring of expenditure front the Consolidated Fund after 31-10‑1988; expenditure from the Consolidated fun(I will also have to be incurred, for rehabilitation of flood‑affected and, restoration of flood‑affected areas, for augmenting and strengthening! the law enforcing agencies, and for maintaining law, and order in the' country. In case such expenditure is not authorize after 31‑10‑1988 the functioning of the Federal and Provincial Governments as mentioned above, the f‑financial' and economic activities as well as the administrative, judicial and security functions of the State will be seriously jeopardized. The learned Attorney‑ General further explained the Constitutional provisions which necessitated this Reference under Article 186 referring to the Legislative Procedure contained in Articles 70 to, 77 and Financial Procedure contained in Articles 78 to 88 (the comparable provisions‑ for Provinces being Articles 115 to 117 and Articles 118 to 125). The learned Attorney‑ General pointed out that the non‑obstinate clause contained in Article 86 coupled with the power conferred on the Federal Government to authorize expenditure from the Federal Consolidated Fund while the National Assembly stands dissolved cannot be availed of for a period exceeding four months in any financial year pending completion of the procedure prescribed in Article 82 for the voting of grants and the authenticate of the Schedule of authorized expenditure in acceptance with the provisions of Article 83 in relation to the expenditure. This period of four months during the financial year 1988‑89 expires of; 31‑10‑1988. A need has, therefore, arisen of seeking, if possible within the framework of the Constitution, a legal authorization for incurring the expenditure after 31‑10‑1988. The expenditure is unavoidable for loans have to be repaid, the affairs of the State to be managed and looked after, the financial liabilities of the State have to be discharged, the remuneration has to be paid in the law and order to be maintained and the defense of the country effectively ensured. These factors bring in and establish a case of extreme State necessity. The learned Attorney‑ General suggested that within the framework of the Constitution recourse may be possible to Articles 254, 89, 79 and 234 for promulgating an Ordinance respectively by the President and the Governor for authorizing the expenditure after 31‑10‑1988. In the alternative it has been suggestion that an the Court has already mandated the election of the National Assembly on 16th November. 1988 and that of the Provincial Assemblies on 19th November, 1988, a consequential authorization of expenditure may legally be declared as necessarily following that mandate for a reasonable period beyond the holding of the elections, As regarding the exact post‑election period required to be covered, the learned Attorney‑ General pointed out that when the Assemblies get elected their first duties will be to elect Speaker, and the deputy' Speaker and ‑then fill the reserved ladies seat followed by the appointment of Prime Minister and further sixty days for him for obtaining a vote of esurience. All this may take the time of four months o,, so. For fully explaining the circumstances establishing State necessity the learned Attorney‑ General referred to and relied on Special Reference No.1 of 1955 by His Excellency the Governor‑ ' General under section 213 of the Government of India Act, 1935 P L D 1955 F C 435 and the decision in the case Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan, P L D 1977 S C

657. The Advocate‑ Generals of the Provinces have adopted the submissions of the learned Attorney‑General. Mr. Abdul Ghafoor Mangi, Additional Advocate‑ General Sind and Mr. Akbarji, Advocate‑ General N.‑W.F.P. represented also the Speakers of the respective Provincial Assemblies. Mr. Abdul Karim Malik, President Lahore High Court Bar Association contended that the question referred to this Court under Article 186 of the Constitution is too vague, very general and somewhat hypothetical and should be returned unanswered as was done by the Court in respect of question "What are the powers and responsibilities of the Governor‑General in respect of the Government of the country before the new Constituent Convention passes the necessary legislation?", in Special Reference No.1 1955 (P L D 1955 F.C. 435). Besides, according to him, no provision in the Constitution exists by reference to which this question can be answered. Tile mistake committed in dissolving the Assemblies stands already condoned. The legal consequences of dissolution have been completely and exclusively taken care of by Article 86 of the Constitution. No extension in the period mentioned therein is either desirable or permissible and none should be allowed. Syed Saghir Hussain Jafri, President, High Court Bar Association, Karachi, submitted that just as the Supreme Court came forward to save the country from Political Chaos following the dissolution of the Assemblies, it is equally its duty to save the country from the Financial Chaos, which is likely to follow if the Period prescribed in Article 86 is allowed to expire without providing legal cover to the period after 31‑10‑1988. He, therefore, suggested that an All Political Parties conference should be called and a broad based national consensus obtained on the subject and further legal action should follow to advance that broad based national consensus In the alternative, it was suggested that relying or, Article 254 read with Articles 89 and 128, Ordinances should be promulgated to obtain compliance with the short order of this Court dated 15-10-1988 A reference should follow, and not precede such an Ordinance. Raja Muhammad Abram, President High Court Bar Association, Rawalpindi made a reference to the decision of the Indian Supreme Court in re: Presidential Election, 1974, Special Reference No,l of 1974, (A I R 1974 S C 1682 at page 1690 para 34) to point our that if it becomes impossible to comply with the requirement of the Constitution in the literal sense then substantial compliance should any case be ensured, According to him, Ordinance making power contained in Article 89 will directly come in conflict with Constitutional provisions contained in Article 86 and in order to lend harmony, consistency and strength to the various Constitutional provisions restore to Article 89 will not be proper, Instead the thirty days grace period discernible in Article 86 read with Article 48(5) should be utilized by analogy, as the outer limit from 16th and 19th, November., now fixed for elections, and duly sanctified from this Court. Mr. Muhammad Raiz Ahmed, President High. Court Bar Association, Baluchistan, pointed out that Keeping in view tilt: language of Article 186 "The Supreme Court shall consider a question so referred, and report its opinion or' the question to the President" leaves no scope for the Supreme Court for not answering the question or Returning the question referred unanswered on the ground that it is not specific or clear. According to him, a the Presidential Order dissolving the National Assemblies has been held to be void being unconstitutional, all the assemblies get revived notionally and legally That being the strict legal position the President should after considering them notionally revived, exercise his power of dissolution so that a fresh lease of preparatory period of ninety days under Article 48(5)(a) and four months in all under Article 186 is available. 'Such should be result, according to him only if remuneration. privileges etc. ate not claimed by members of the Assemblies for the past period that they were kept out of office. Mr.Aman Khan, President Peshawar High Court Bar Association, referred to Articles 254, 79 and Article 89 and expressed the view that it should be possible for the President and the Governor to invoke their Ordinance making power as and when legislative intervention appears necessary for overcoming the difficulty. Mr. S. M. Zafar, Advocate representing the Federation of Chamber of Commerce and Industries on his first appearance suggested as a solution over estimation of the estimated expenditure for four months under Article 86 to cover the requisite period beyond four months. When asked to study the subject in greater detail, to learned counsel presented . a comparative study of the provisions of various Constitutions e.g, Article 114 of the Indian Constitution,' Article 66 Of 1956 Constitution,‑, and Articles 82 and 83 of 1973 Constitution to infer that the provisions of authentication of expenditure by Prime minister was just a facility, a convenience aria a mere informal method of dealing with the budget. It involved neither a curtailment, nor an enlargement of the legislative power. On the contrary, according to him, the express mention in Article 89 Of Article 73 and Article 73 containing sub‑clause (c) of clause (2) coupled with the meaning of "issue" and "appropriation" there could remain no doubt that the problem faced can be effectively covered by promulgating an Ordinance. Mr. Maqbool Ahmad, Advocate, representing the Acting Chairman Senate and the Speaker of National Assembly adopted the point of view advanced by the learned, Attorney‑ General. " Shaikh Shaukat Ali, Advocate also claimed to be representing the Speaker of the National Assembly and he pointed out that in view of our Short Order dated 5‑10‑1988, the National Assembly stands revived, that on its revival it can be allowed to‑ deal with it. Alternatively the President should dissolve it in accordance with Article 58(2)(b) and avail of all the consequential periods Because it will be the first ever ‑legal or unconstitutional dissolution, none having legal taken place earlier. The third alternate pointed out by Mr. Shaukat Ali is that the Reference should be returned unanswered and the Government should deal with the situation by an Ordinance and if thereafter a problem arises, then certainly a Reference is possible. Finally, the last alternative is that a case of State necessity is made out and the Supreme Court itself should authorize the expenditure and fix with all strictness the outer limit during which the expenditure may be incurred. Mr. Shaukat Ali, Advocate, considers that Ordinance making power is not at all available for the purpose. Article 186 under which this Reference has been made reads as follows:- "186. (1) at any time, the president considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration. (2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President." The President is the sole judge of the public importance of the question and the desirability of referring it to the supreme Court. Only a question of law can be referred to this Court under Article 186, There is no doubt that ‑the question referred is one of law and accordingly it becomes the duty of this Court to consider and report its opinion thereon. Furthermore, the answer to the question of law always depends on facts assumed in the Reference and the Reference has to be answered on the assumption of facts on which it is made without entering into a fact‑finding enquiry into their accuracy. See Special Reference No.1 of 1955 (P L D 1955 S C 435). While answering the question we have, therefore, assumed that the National and Provincial Assemblies stood dissolved on the dates mentioned in the Reference. The Constitutional impasse-giving rise to the question under Reference is the result of non‑observance of the time schedule prescribed in Article 48(5). Where the President dissolves the National Assembly, he is required, in his discretion to appoint a date, not later than ninety days from the date of the dissolution, for the holding of. a general election to the Assembly. To the same effect is the mandate contained in Article 224 (2) of the Constitution that "when the National Assembly or a Provincial Assembly is dissolved, a general election to the Assembly shall be held within a period of ninety days after the dissolution" of the Assembly, yet it was not until 20‑7‑1988 that the then President of Pakistan fixed the date of the general election for 16‑11‑1988, that is,: after five months and eighteen days. One of the reasons for the disregard of this Constitutional provision was the earlier non‑compliance of another Constitutional provision by the Parliament to make a law providing for allocation of seats in' the National Assembly as required by clauses (3) and (4) of Article

51. Accordingly, it was, on account of the non‑compliance of the above‑mentioned Constitutional provision that the mandate for holding of the general elections within ninety days of the dissolution of the National and Provincial Assemblies contained in Article 224(2)‑could not be complied with. These un‑ Constitutional acts of omission and commission are now threatening the economic and financial functions of the Federation and the Provinces as the authorization to incur expenditure from the Consolidated Funds by the Federal and Provincial Governments for four months from 1‑7‑1988 under Articles 86 and 126 are expiring on 31‑10‑1988. Article 86 of the Constitution (which is in pari materia with Article 126) provides as follows: "

86. Power to authorize expenditure when Assembly stands dissolved.‑‑ Notwithstanding anything contained in the foregoing provisions relating to financial matters, at any time when the National Assembly stands dissolved, the Federal Government may authorize expenditure from the Federal Consolidated Fund in respect of the estimated expenditure for a period not exceeding four months in any financial year, pending completion of the procedure prescribed in Article 82 for the voting of grants and the authentication of the schedule of authorized expenditure in accordance with the provisions of Article 83 in relation to expenditure. The submission of the learned Attorney‑ General that within the framework of the Constitution it is possible for the President and the Governors to authorize the expenditure after 31‑10‑1988 by promulgating appropriate Ordinances is untenable. The Constitution expressly provides for a situation where National or Provincial Assembly stands dissolved, namely Articles 86 and

126. According to these provisions, the Federal and the Provincial Governments are authorized to incur expenditure from the Consolidated Funds for a period not exceeding four months in a financial year. Therefore, in view of the, aforesaid express prohibition neither the Federal nor the Provincial Legislature can achieve through the Ordinance what is otherwise prohibited by the express terms of the Constitution. It is well established that where power is given to do a certain thing in a certain way, the thing must be done in that way or hot at all. Other methods of performances are necessarily forbidden. This principle would apply with greater force when a Constitutional provision has provided for a method of performance and prescribed a limitation of time for the doing of a thing. This would imply that any contrivance, which would amount to circumventing the Constitutional provision, is Necessarily prohibited. Even otherwise in a democracy, whether the form of Government is Parliamentary or Presidential, the control over the State Exchequer is always with the representatives of the people. The financial provisions of the Constitution are based on this principle. Thus, after providing in Article 78(l) that all revenues and loans received or raised by the Federal Government shall form part of the federal consolidated fund, it makes elaborate provisions in Articles 79, 80,81, 82, 83, 84,85, and 86 with regard to the manner in which moneys can be withdrawn there from. When the National Assembly, which its directly elected, by the people is in existence, no expenditure out of the consolidated fund can be made unless it has been discussed and voted upon by the National Assembly. Even when the National Assembly is not in existence the Federal Government has been given a limited power to undertake expenditure out of the consolidated fund but then again in conformity with the principle stated above, The expenditure so incurred has to be accounted for and subjected to the approval of the National Assembly when it is reconstituted. If the power to authorize expenditure through an Ordinance is conceded to the President it will be defeating the very provisions, which the Constitution has set out in meticulous details in preserving the right! of the tax‑payers to control the exchequer. it is to be noticed that' an ordinance can be issued by the President even when the National: Assembly is in existence; the only rider on the power of the president in this regard is that the National Assembly should not be in Session. It may also be mentioned that even though every Ordinance is to be placed before both Houses of the Parliament but it is optional with the Federal Government whether or not it should be subjected to the, approval of the Parliament In the event that the Assembly does not approve the Ordinance or it is withdrawn by the President or stands repealed on the expiry of four months, yet, even though it ceases to have effect the legality of the expenditure already incurred in pursuance thereof remains outside the scrutiny of the National Assembly. Hence the issuance of an Ordinance to authorize expenditure by the President would be violative of the Scheme so carefully prescribed by the Constitution under Articles 78 to

86. This is also true of Ordinances promulgated by a Provincial Governor in the light 1 ,of the corresponding provisions of the Constitution relating to financial procedures in the Provinces. The alternative suggestion made by the learned Attorney‑General and supported by Raja Muhammad Akram, learned President of the High Court Bar Association, Rawalpindi may be taken up that as the Court had already mandated the election of the National Assembly, on 16‑11‑1988 and that of the Provincial Assemblies on 19‑11‑1988 al consequential authorization of expenditure for a reasonable period beyond the holding of the elections be declared as necessity following that mandate. In order to appreciate this suggestion it is necessary to make reference to Article 86 again. It reads:‑

86. Power to authorize expenditure when Assembly stand dissolved.‑‑Notwithstanding anything contained in the foregoing provisions relating to financial matters, at any time when the National Assembly stands dissolved, the Federal Government may authorize expenditure from the Federal Consolidated Fund in respect of the estimated expenditure for a period not exceeding four months in any financial year, pending completion, of the procedure prescribed in Article 82 for the voting of grants and the authentication of the schedule of authorized expenditure in accordance with the provisions of Article 83 it, relation to expenditure." Since mention has been made in this Article to the procedure prescribed in Article 82 (corresponding to Article 122) and the provisions of Article 83 (corresponding to, Article 123) these Articles may also be usefully reproduced as under‑

82. Procedure relating, to Annual Budget Statement.(1) so much of the Annual Budget Statement as relates to expenditure charged upon the Federal Consolidated Fund may be discussed in, but shall not be submitted to the vote of, the National Assembly. (2) So much of the Annual Budget Statement as relates to other expenditure shall be submitted to the National Assembly in the form of demands for grants, and the Assembly shall have power to assent to, or to refuse to assent to, any demand, or to assent to any demand subject to a reduction of the amount specified therein: Provided that, for a period of ten years from the commencing day or the holding of the second general election to the National Assembly, whichever occurs later, a demand shall be deemed to have been absented to without any reduction of the amount specified therein, unless, by the votes of a majority of the total membership of the Assembly, it is refused or assented to subject to a reduction of the amount specified therein. (3) 'No demand for a grant shall be made except on the recommendation of the Federal Government.

83. Authentication of schedule of authorized expenditure. ‑‑(1) The Prime Minister shall authenticate by his signature a schedule specifying (a) the grants made or deemed to have been made by the National Assembly under Article 82, and (b) the several sums required to meet the expenditure charged upon the Federal Consolidated Fund but not exceeding, in the case of any sum, the sum shown in the statement previously laid before the National Assembly. (2) The schedule so authenticated shall be laic before the National Assembly, but shall not be open to discussion or vote thereon. (3) Subject to the Constitution, no expenditure from the federal Consolidated Fund shall be deemed to be duly authorized unless it is specified in the schedule so authenticated and such schedule is laid before the National Assembly as required by clause (2). A careful perusal provisions of Article 86 shows that these are applicable when the National Assembly stands dissolved, but at the same time visualizes its re‑constitution before the period' of four months. it will be seen that the period of four months for which authorization is allowed to the Federal Government is "pending" completion of the procedure under Article 82 and authentication of the schedule of authorized expenditure under Article

83. Obviously, neither the procedure under Article 82 nor the authentication under Article 83 can take place without the re‑constitution of the National Assembly after its dissolution. It is in the scheme of the Article 86 itself that the National Assembly which stood dissolved 'at the time when this Article was operative should stand re‑constituted within the period of ninety days so that procedure contained in Articles 82 and 83 can be followed. Now that the General Elections to the National Assembly and Provincial Assemblies are scheduled for 16‑11‑1988 and 19‑11‑1988 respectively, much after 31‑10‑1988, the provisions of Article 86 cannot therefore be ii, terms put into effect. However, this Court has held in the order dated 5‑10‑1988 in Civil Appeal No.314 of 1988‑‑Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others 1988 S C M R 1996 and other connected appeals that the General Elections schedule to be held on 16 and 19 November 1988 are valid G under the Constitution, inter alia, for the reason that the Assembly could not be re‑constituted within ninety days after its dissolution as prescribed under Article 224(2) because of the failure by the ,Parliament to comply with the Constitutional provision contained in Article 510) regarding allocation of seats to each Province the Federally Administered Tribal Areas and the Federal Capital on the basis of population in accordance with the last preceding census officially published. Since the National Assembly and the Provincial Assemblies will stand re‑constituted on 16‑11‑1988 and 19‑11‑1988 respectively it is only after those dates that the provisions of Article 86 can become operative. However, by these dates the period of four months Prescribed for completing the procedures under Articles 82 and 83 will have expired. But as already observed the scheme of Article 86 is that after the dissolution of the National ' Assembly it must be reconstituted to enable it to comply with the procedure under Articles) 82 and 83‑ This shows that the scheme of this Constitutional provision' is that at least one month must be available with the re‑constituted National Assembly for compliance with the procedure prescribed under Article 82 and 8

3. Thus, in the facts and circumstances of the present case; a period of one month after the declaration of results of the General Elections scheduled for 16‑11‑1988 and 19‑11‑1988 would yet be available to the federal and Provincial Governments for authorization of the expenditure ‑from the Consolidated Funds concerned. Needless to say that it is well established that a Constitution has to be interpreted as an organic whole and its various provisions read as parts of one integral scheme and operated together in harmony. We would like to make it clear that the present opinion has been rendered in view of the special facts and circumstances of this case where the election could not be held within ninety days on account of the lapse, inter alia, of the Parliament in not complying with the provisions of Article 222(2) read with Article 51(3), and this Court has also in its order dated 5‑10‑1988 held that in the exceptional situation, , the elections scheduled on 16‑11‑1988 and 19‑11‑1988 are valid under the Constitution. This opinion, therefore, cannot serve as a precedent for the future or can be understood to be laying down the law that if the elections are held after the stipulated period of ninety days, the Government concerned shall still have some period beyond four months prescribed under Article 86 to incur expenditure from the Consolidated Funds. The answer to the question referred under Article 186 by the President of Pakistan therefore is that the Federal and Provincial Governments can authorize incurring of expenditure out of the Federal and Provincial Consolidated Funds up to one month after the declaration of results of the General Elections scheduled for 16‑11‑1988 and 19‑11‑1988. This Reference is answered accordingly. This reference under Article 186 of the Constitution raises the question that in the facts and circumstances emerging on and after the purported dissolution of the National Assembly by the order dated 29th of May, 1988 of the late President; what measures may be adopted to enable the Federal and Provincial Governments to authorize the incurring of expenditure out of the Federal and provincial consolidated funds after 31st October, 1988, till the respective grants are passed by the new Assemblies to be elected in the ensuing general elections ?

2. This so‑called financial crisis leaving the Government with no alternative except to make reference to the Supreme Court has arisen on account of an assumed constraint under Article 86 of the Constitution; which provides that: notwithstanding anything contained' in the provisions relating to financial matters, "at any time when the) National Assembly stands dissolved", the Federal Government may authorise expenditure from the Federal Consolidated Fund in respect) of the estimated expenditure "for a period not exceeding four months, in any financial year", ending "completion of the procedure prescribed in Article 82" for the voting of grants and the authentication of the schedule of authorised expenditure in accordance with the provisions of the Constitution.

3. The concrete problem is that the National Assembly purported to have been dissolved on 29th of May, 1988, the elections were to be held within 90 days under the mandatory provisions of the Constitution. They were not so held. The Supreme Court by its order dated 5th of October, 1988 passed in the case of Haji Muhammad Saifullah Khan and others, fixed 16th and 19th November as the dates for the elections. The four months' period regarding authorisation of expenditure in Article 86 consists of 90 days period for elections and about a month thereafter for the completion of the procedures for voting of the grants and authentication of the schedule of expenditure. This total four months' period is the maximum allowed in a financial year. The present financial year commenced on lst of July, 1988. The date fell within the period of purported dissolution of the National Assembly. Therefore. according to the learned Attorney‑ General, thus counting the four months period, would end on 1st of October, 1988. That being so, the elections and other procedures being still, more than two months away, Article 86 would bar the authorization of expenditure after 31‑10‑1988. The remaining period till the needful is done by the National Assembly, would, there re, be a period of vacuum in so far as the authorization of expenditure is concerned.

4. After careful and deep consideration, I am of the considered opinion that acting in accordance with the letter, spirit and ethos of the Constitution, there will be no such problem as apprehended.

5. The dissolution of the National Assembly, as visualized in Article 86, cannot be treated as what was ordered by the late President on 29th of May, 1988; but what the Supreme Court found and held on 5th of October, 1988. As a necessary corollary to the "Dissolution" of the National Assembly mentioned in Article 86 shall be deemed to be that dissolution which came into effect after the order of the Supreme Court‑as an effect thereof, it is necessary to emphasize and not ~y an act of the Supreme Court.

6. Before elaborating the aforestated answer, it is necessary to highlight: certain principles of interpretation of our Constitution; some of the events since 29th of May, 1988; and, the resultant Constitutional and legal realities.

7. The working of the Federal system through a written Constitution in well‑known democracies the world over, has been Facilitated by the Court at the apex. In some countries it has been responsible for many formal amendments in the Constitution as also considerable implied changes and improvements in the working thereof. In our country, for the time being, it will be difficult in this reference to examine whether the Supreme Court has been responsible for any Amendment or change in its working implied or express. One feature of our approach, however. may be touched upon. It is that a serious attempt has been made to soften the rigidities of the Constitution on the one hand and on the other to give it progressive interpretation and enforcement, This has been achieved through a characteristic approach which is in a way unique arid referable to only our own history, geography, conditions and aspirations. While dealing with this aspect in the case of Benazir Bhutto (P L D 1988 S C 416) it was observed as follows‑‑ I "The interpretative approach should not be ceremonious observance of the rules or usages of interpretations, but regard should be had to the object and the purpose for which this Article (184 of the Constitution) is enacted; that is, this interpretative approach must receive inspirations from the triad of provisions which saturates and invigorates the entire Constitution; namely, the objective resolution (Article 2‑‑A) the fundamental rights and the directive of principles of policy so as to achieve democracy, tolerance, equality and social justice according to Islam.

8. The very carefully chosen word 'triad' obviously represents the grouping of three most essential components of our Constitutional set up. They are: the main enacted Constitution containing fundamental rights; the directive principles of the State policy which are not only enacted but also available otherwise; and the Objective Resolution which also by now has attained a very important place with overtones of perpetuity. It is not possible for this Court to depart from the: interpretative approach. It was not mere rhetoric or theorization in political discussion or a discourse on Constitutional law. It is now an operative part of the Judgment rendered by the Supreme Court with all its Judges constituting the Bench.

9. In the same case further effect was given to this interpretative approach in various respects. While discussing the Federal Democratic and Parliamentary system provided by our Constitution, it was observed as follows‑ "The directive principles of State policy are to be regarded as fundamentals to the governance of the State but they are not enforceable by any Court. Nonetheless, they are the basis of all legislative and executive actions by the State for implementing the principles laid down therein. As the principles of democracy are not based on dogmas and also do not accept the theory of absolutes in any sphere of socio‑economic justice, therefore, the authors of the Constitution by enumerating the Fundamental Rights and the Principles of Policy, apparently did so in the belief that the proper and rational synthesis of the provisions of the two parts would lead to the establishment of an egalitarian society under the rule of law." Further, it was observed that‑‑. "If an egalitarian society is to be formed under the rule of law, then necessarily it has to be by legislative action in which case it would be harmonious and fruitful to make an effort to implement the socio‑economic principles enunciated in the Principles of Policy, within the framework of the Fundamental Rights, by enlarging the scope and meaning of liberties, while juridical defining them and testing the law on its anvil and also, if necessary, with the co‑related provisions of the Objective Resolution which is now a substantive part of the Constitution." And lastly the foregoing observations when read wit the following observation, complete the rule laid down by this Court for resolving the problems which have arisen since the purported dissolution of our National Assembly on 29th of May, 1988. It reads as follows: "Our Constitution envisages democracy as ethos and a way of life in which equality of status, of opportunity, equality before law and equal protection of law obtains. It has its foundation in representation; It is not a system of self ‑Government, but a system of control and the limitations of Government. A democratic polity is usually identified by the manner of selection of its leaders and by the fact that the power of the Government functionaries is checked and restrained. In a democracy the role of the people is to produce a Government and, therefore, the democratic method is an institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people's vote. Fundamentally democracy rests upon the idea of freedom. Parliamentary Government is a Government of the party and a party Government is a vital principle of a representative Government. The political party is a connecting link between the Executive and the Legislature, between the Cabinet and the Parliament. It is also a connecting link between the Cabinet and the people and between the Parliament and the people."

10. It is not necessary to elaborate what has been reproduced above. All these principles were applied by the Supreme Court when it was held on 5th of October, 1988 that dissolution of the National Assembly by the late President by the order dated 29th of May, 1988 was not in accordance with those provisions of the Constitution which undoubtedly are very vital and of fundamental character regarding the powers of the President vis‑a‑vis the Parliament and the National Assembly.

11. In the background of this interpretative approach of the Constitution, it is necessary now to recapitulate some of the events which constitute the facts and circumstances in which the question of interpretation of Article 86 has now arisen before us. The purported order of the dissolution of National Assembly was passed on 29th of May, 1988. The elections under various provisions of the Constitution were to be held within 90 days‑‑upto to 28‑8‑1988. It had become known that the elections were not to be held within the prescribed period and before the target date (by the announcements of the late President). Although cases challenging it were filed before the two High Courts (Sind and Punjab) before the target date but for procedural reasons. they could not be heard and concluded well in time. The death of the late President in a very tragic occurrence took place on 17th of August, 1988, which upset many things. The Lahore High Court delivered its judgment on 27‑9‑1988; the effect of which was that (without saying in so many words) the dissolution of the National Assembly was annulled; but at the same time, the National Assembly was prohibited from functioning, as such. The Speaker of the National Assembly, acting on legal advice based on the short order announced by the Lahore High Court (the detailed judgment was delivered subsequently) thought that the National Assembly could function and accordingly summoned its session for 1‑10‑1988 stating that he had received the requisite request from the Members of the National Assembly, in this behalf. The Supreme Court suspended the action of the Speaker of the National Assembly on 30‑9‑1988 with the following order‑‑ "The operation of the order dated 27th September, 1988 in regard to the unconstitutional Dissolution of the National Assembly and the Provincial Assembly of Punjab is suspended. As a consequence thereof the prayer at (b) above is allowed as an interim measure. Notices to issue to the Respondents for 2nd October, 1988 on which date the contention will be considered by the Full Court." Prayer at (b) was as follows‑.‑‑ "Restrain Respondents 1, 2 and 3 and or any other person claiming under them from calling/holding any meeting of the dissolved National Assembly on 2 .10‑1988 or any other date al 'Islamabad or at any other place as per notification date 29‑9‑1988 issued by Respondents 1, 2 & 3 or otherwise in any 'other manner either‑ directly or indirectly and/or conduct an), proceeding or do any act whatsoever in purported capacity as Speaker/ Secretary/ Members of the dissolved National Assembly . The Supreme Court in its order announced on 5th of October ,1988 (the detailed reasons in that behalf are being recorded) decline to the judgment of the Lahore High Court and found as follows‑ ". . . that the grounds contained in the President's Order dated 29th May, 1988, dissolving the National Assembly and dismissing the Federal Cabinet has no nexus with the pre‑conditions prescribed by Article (58)(b) of the Constitution empowering him to dissolve the National Assembly in his discretion. This would lead to the consequence that the National Assembly and the Federal Cabinet would stand revived to continue to, function for the remaining period of their Constitutional tenure. But we are not unmindful of the fact that the whole nation is geared up for elections and we do not propose to do anything . "Therefore, we refrain from granting consequential relief s, inter alia, the restoration of the National Assembly and the dissolved Federal Cabinet. "We, however, emphasize that the general elections scheduled for the 16th and the 19th November, 1988 shall be held on the said dates. ..." "Accordingly, these appeals stand disposed of in the above terms. Consequently, the interim order dated 1‑10‑1988 (30‑9‑1988) will form part of this order ...... "This order shall also govern and apply in respect of the dissolution of all the Provincial Assemblies and the Provincial Cabinets by the respective Governors of the Province . 12. we have now to examine the Constitutional effect of the foregoing circumstances, events and orders‑

13. The order dated 29‑5‑1988 has no Constitutional validity and the dissolution Of the‑ National Assembly was not lawful. Nevertheless, it did not actually function. Thus, while de jure there was no dissolution; de facto, it had taken place on 29‑5‑1988. This position was recognized in the order of the Supreme Court dated 5‑10‑1988. L it is in this context that t he words "would stand revived to continue to function" were used in the sense of only inchoate and unfinished revival. 'The remaining part of the order together with the operative part, in short. is to the effect that the Supreme Court declined to make the revival choate. Therefore, the de facto dissolution remained intact without the grant of the consequential relief‑‑namely the restoration. And thus there was no reinstatement by a positive mandatory act or order. Rather the phrase "refrain from granting consequential relief';‑ (of restoration) was used. Not only this in order to remove any confusion about this part of the order, it considered necessary also to confirm' the interim order dated 30‑9‑1988 reproduced above. 14. thus, from '2‑9th of May, 1988 upto 5th October, 1988 although there was no de jure (lawful and rightful) dissolution on National Assembly, it stood dissolved in fact, what is called, de facto.

15. Two questions of high Constitutional importance arise. One, what is the nature of the Dissolution continuing after 5‑10‑1988 when the Supreme Court announced the order; and two, whether in the context of Article 86, the "dissolution" ordered on 29‑5‑1988 or the one which has continued after 5‑10‑1988 as an effect of the decision, is to be understood.

16. Obviously we have not held the order of 29th of May, 1988 as valid Constitutional order but at the same time by not reinstating the National Assembly, its dissolution has been continued. This ha happened not on account of any power in the Supreme court to dissolve the National Assembly but on account of the processes and remedies provide in the Constitution itself, in which the Court is only a forum. It has acted in accordance with the situation and the principles highlighted in the earlier part. In this context while the dissolution before 5‑10‑1988 is un‑Constitutional but it is not so, after 5‑10‑1988. This answers the first question.

17. The answer to the other question has now become easy by posing a further illustrative question: Should the Court when interpreting the word "dissolved" in Art.86 read here, the Dissolution ordered by the late President on 29th of May, 1988 or it is the dissolution continued after the Supreme Court decision, as its effect? Here again the basic 'rule; the triad of Constitution with the fundamental rights; the directive principles of State Policy and the Objective Resolution, will guide our response. It would thus be to adopt that dissolution, as both de jure and de facto; which would be on an after 5‑10‑1988 and not before that date; when it had no de jure element. With, this vital defect, it could not be considered, for interpreting Article 86, as the dissolution.

18. Read in the light of the above answers Article 86 would present no difficulty. The dissolution mentioned therein not being of 29‑5‑1988, its effective date for this Article would be 5th of October, 1988. Thus, from that date on words the Federal Government would have four month period to "authorize the expenditure", ending on 5th of February, 1988‑ ‑enough Time to complete all the other procedures as are referred in Article

86. There will be no need to resort to the Ordinance making power of the President nor/for adopting other proposals; with which I do not agree, excepting two which are now impracticable and would be dealt with in brief presently. This answers the reference.

19. Some of the other questions which might arise are:- Whether (i) the Dissolution continuing after 5‑10‑1988 is by the order of the Supreme Court? It is not. The detailed discussion of various aspects of this question will be contained in the reasons for the said order. A brief reference has already been made to the various parts of the order with their legal and Constitutional effects. The Supreme Court was not even required to examine what is implied in this question. It has definitely not passed any such order. It is only the interpretation and the consequences of the order, which are sought to be given effect now, in so far as one aspect of the nature of Dissolution after 5‑10‑1988, is concerned. The second question is whether the effect of de facto Dissolution upto 5‑10‑1988, without de jure Dissolution, will have such result so as to annul all State and Government actions from 29‑5‑1988 upto 5th of October, 1988? This question does not arise in this reference. If any such action, (otherwise too without the present Reference and answer) could be made the subject‑matter of controversy it would be answered with reference to its peculiar nature, circumstances and the relevant law applicable to it. The afore‑rendered answer to this Reference will not create any problem. It might provide solution, instead. However, each case will have to be decided on its own merits and law. Nevertheless, two sets of actions need special attention even at this stage: (i) whether authorization by the Federal Government of expenditure from 29th of May, 1988 upto the 5th of October, 1988 would be rendered un‑ Constitutional; by the fact that Dissolution during that period was invalid (de jure); though, in fact it did exist; and (ii) whether the answer would have any effect on the schedule of elections.

20. The first answer would be in the negative; because it is being held that the Dissolution would have Constitutional and legal effect, only on and from 5‑10‑1988. The word "Dissolution" in Art.86 would, as already discussed, be read accordingly. There' would be no Constitutional "Dissolution", as visualized by Article 86 before that date. Hence the command about "four months in a financial year", in this Article would not be attracted to the period prior to 5‑10‑1988. As to which law would govern the authorization during that period, need not be answered in this matter; with the only further remark that certainly there would be more than one solutions if the case comes before the Court as a lis.

21. The question regarding any disturbance in respect of the dates of elections, on account of the afore‑rendered answer, does not arise at all. These dates have become an important and vital component of the operative order of the Supreme Court passed on 5‑10‑1988. There is absolutely no reason why on account of this answer to the Reference, the dates would be disturbed. Moreover, the schedule of election was announced after 5th of October, 1988. It does not contravene those provisions of the Constitution, which require the elections to be held within 90 days of the Dissolution of the Assembly. The date of dissolution now being taken as 5‑10‑1988, the elections on 16th and 19th November, 1988, would be well within the Constitutional mandate.

22. The last question which needs to be answered is: why any off the other two proposals earlier referred to, if in accord with the Constitution are not being accepted as proper answer to the Reference?

23. The proposals broadly but briefly stated were:‑ (i) Made by Syed Saghir Hussain Jaffri, Advocate President of High Court Bar Association, Sind, that just as the Supreme Court came forward to save the country from constitutional chaos following the order dated 29‑5‑1988, it is equally its duty to save the country from the financial chaos. Therefore, he suggested that all Political Parties' conference should be called and national consensus be obtained and further legal action should follow. Similar proposal came under discussion during the hearing of the case of Haji Saifullah Khan and others. Mr. Ali Ahmad Fazeel, appearing for the Speaker of the National Assembly had made an offer on behalf of the Leader of the House in the National Assembly‑‑the ex‑Prime Minister: that in case the Assembly was reinstated he will give proper advice for dissolution, as visualized by Article 58(l) of the Constitution so as to render constitutionality to various actions; and further as then stated, the Assembly would be able to overcome the financial chaos by passing the annual budget and providing necessary expenses for various needs including the forthcoming elections. This offer undoubtedly was attractive. Such result if visualized by Mr. Jaffri, by proposing the national consensus, would undoubtedly have been a laudable act in the political adjustment and advancement, but time had passed for this exercise. Earlier too ', notwithstanding the offer made through Mr. Ali Ahmad Fazeel, it could not be taken to all its logical ends; as it was being made on behalf of a person who was not before us as a .party in the case. Any further action in that behalf by the Court might have resulted in embarrassment; And lastly, it depended upon an over‑all national consensus which was neither in the power of the Court nor was its duty, either to create or enforce. Mr. Jaffri s proposal therefore though in case of materialization could have rendered the similar results as in the afore‑rendered answer to the Reference; by the introduction of a new date of Dissolution of the Assembly And fresh period ensuing therefrom; but, there is no doubt that this suggestion is no more practicable. (ii) The second proposal by Sh. Shaukat Ali, Advocate, who claimed to be representing the Speaker of the dissolved National Assembly, (it may be noted, that he still holds this office notwithstanding the dissolution) wanted to project the Speaker's point of view as we had issued notice to him also. However, for some procedural reasons he was heard as amices curiae. His suggestion was that the President could have himself dissolved the National Assembly after 5‑10‑1988, under Article 58(2)(b) of the Constitution; because the two conditions there under, namely, the need for appeal to the Electorate, an failure of the Government to be carried on in accordance with Constitution, are now satisfied. According to him, there ''is Absolutely no dispute about the need for an appeal to the Electorate It has already become a part of the order of the Supreme Court. He also gave various reasons for which the Governments are now being carried on in accordance with the 'provisions of the Constitution. This aspect of the matter had also earlier been discussed during the arguments of another) learned Advocate to which the learned Attorney‑ General had, after due consultation, answered that it would not be neither proper nor possible to adopt the suggested measure.

24. It is realized and acknowledged that ordinarily the act of the, Dissolution of the National Assembly, as herein particularly under Article 58(2)(b), does not carry with it the zeal, pleasantness or even sense of duty for advancing the purposes of the Constitution. It essentially is an act of "necessity". And if for this good reason, the President has refrained from acting under Article 58(2)(b), notwithstanding the existence of grounds, as suggested by Sh. Shaukat' Ali, I would not examine this aspect of the matter, any further.

25. A subsidiary question arising from the aforediscussed two proposals regarding formal dissolution of the National Assembly under Article 58(l) or 58(2)(b), after the order dated 5‑l0-1988 needs also to be dealt with. It is that the dissolution which came into effect on 5‑10‑1988, (as an effect of the order of the Supreme Court notwithstanding the earlier de facto (dissolution) might have rendered it impossible to dissolve the National Assembly again under Article. 58(l) or 58(2)(b). This, might only be a seeming difficulty in the proposals; but, it would not have presented a real difficulty, in case a national consensus was sought to be put into legal effect. The Supreme Court could not have been able to give effect to it in this Reference; because under Article 186 of the Constitution, it has to be answered in accordance with the opinion of the Court regarding the interpretation of law and that Constitution. It cannot in this jurisdiction decide the matter as a lis between the parties; wherein exercise of other powers is available to the Court including discretionary and taking other consequential actions. The way‑out then would have been 6 contemporaneous review of our previous order dated 5‑l0‑1988; regarding which the 'learned Attorney‑ General clearly declined to make any application; because according to him, it might re‑open settled matters. He was right. In the detailed judgment giving reasons for the order dated 5‑10‑1988, those grounds will be discussed which prevailed with the Court not to restore or reinstate the National Assembly. Only a very brief mention of two major elements ,in this behalf, would not be out of place. Firstly, it was the acceptance by all concerned of the need for an appeal to the Electorate. Secondly by restoring the National Assembly there was possibility of two parallel executives coming into existence. It would have raised further constitutional complications. These realizations undoubtedly are such that they would be relevant even under Article 58(2)(b). In other words, though on 29‑5‑1988 the grounds for Dissolution of the National Assembly, as held by the Court, did not exist, on the date the Court passed the order dated 5‑10‑1988 the conditions had changed. The decision of the Supreme Court is in accord with the ethos and the spirit of the Constitution (its Khameer and Zameer) and it has been so received.

26. With the foregoing observations, the Reference is returned with the earlier rendered answer. The same answer will apply mutates mutandis to that part of ' the question referred, which relates to the authorization of expenditure by the Provincial Government. The question of law of public importance referred to this Court under Article 186 of the Constitution, the circumstances necessitating it and the views put forward before this Court, all having been stated and summarized I proceed to deal with the question on merits. Article .186 under which this Reference has been made reads as follows; "186.(l) If, at any time, the President consider,, that it is desirable to obtain the opinion of The Supreme Court on any question of law which he considers of public importance he may refer the question to the Supreme Court for consideration. (2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President." The President is the sole judge of the public importance of the question and the desirability of referring it to the Supreme Court. Only a question of law can be referred to this Court under Article

186. None has suggested, and it does not appear to us, that that, question referred is not one of law. It is the sole question. It refers Q to only one problem, namely, the want of Constitutional and legal cover for spending from the Consolidated Fund of the Federation and the Provinces after 31st October, 1988. Such a question cannot be rejected or returned unanswered on the ground that it suffers from vagueness or is too general to be answered. The Constitution impasse giving rise to the question under Reference is the result of non‑observance of the time.‑ schedule R prescribed in Article 48(5). Where the President dissolves the Assembly, he is required, in his discretion to appoint a date not later than ninety days from the date of the dissolution, for holding of a general election to the Assembly. Article 254 of the Constitution provides as hereunder: "When any act or thing is required by the Constitution to be done within a particular period and it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period. The large number of cases where Constitution has prescribed a period for the performance of the duty, and their range and variety Will at once be clear from the following Constitutional provisions, the list of which is neither complete nor exhaustive: (i) 41(4) Election to the office of President shall be held not earlier than sixty days and not later than thirty days before the expiration of the term of the President in office: Provided that, if the election cannot be held within the period aforesaid because the National Assembly is dissolved, it shall be held within thirty days of the general election to the Assembly. (ii) "41(5). An election to fill a vacancy in the office of President shall be held not later than thirty days from the occurrence of the vacancy: Provided that, if the election cannot be held within the period aforesaid because the National Assembly is dissolved, it shall be held within thirty days of the general election to the Assembly. " (iii) 48(5). Where the President dissolves the National Assembly, he shall, in his discretion, (a) appoint a date, not later than ninety days from the date of the dissolution, for the holding of a general election to the Assembly; and (b) appoint a care‑taker Cabinet." (iv) 175(3). The Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day." (v) 224(l) A general election to the National Assembly or a Provincial Assembly shall be held within a period of sixty days immediately preceding the day on which the term of the Assembly is due to expire, unless the Assembly has been sooner dissolved, and the results of the election shall be declared not later than fourteen days before that day. (2) When the National Assembly or a Provincial Assembly is dissolved, 'a general election to the Assembly shall be held within a period of ninety days after the dissolution, and the results of the election shall be declared not later than fourteen days after the conclusion of the polls. (3) An election to fill the seats in the Senate which are to become vacant on the expiration of the term of the members of the Senate shall be held not earlier than thirty days immediately preceding the day on which the vacancies are due to occur. (4) When, except by dissolution of the National Assembly or a Provincial Assembly, a seat in any such Assembly has become vacant not later than one hundred and twenty days before the term of that Assembly is due to expire, an election to fill the seat shall be held within sixty days from the occurrence of the vacancy. (5) when a seat in the Senate has become vacant, an election to fill the seat shall be held within thirty days from the occurrence of the vacancy." (vi) 228(l) There shall be, constituted' within a period of ninety days from the commencing day a Council of Islamic Ideology, in this part referred to as the Islamic Council." (vii) 230 (4) The Islamic Council shall submit its final report within seven years of its appointment, and shall submit an annual interim report. The report, whether interim or final, shall be laid for discussion before both Houses and each Provincial Assembly within six months of its receipt, and Majlis‑e‑Shoora (Parliament) and the Assembly, after considering the report, shall enact laws in respect thereof within a period of two years of the final report." It has to be understood very clearly that no Constitutional provision is to be disregarded, that non‑performance of the duty S within the period prescribed amounts to breach and. violation of the Constitution to be taken note of, satisfactorily explained and suitably dealt with and that minimum possible delay should be allowed to take place. This provision (Article 254) is in accord with the general law and the principles governing the interpretation of legal or Constitutional documents. Where the provision of the Constitution or Statute relates to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, without promoting the essential aims and objects of the maker thereof such prescription are generally understood as directory only. The neglect of them may be penal but it does not affect validity of the act done in disregard of them. This is what in express words Article 254 accomplishes. This provision envisages delay in performance of duty or doing of the mandated act but then makes allowance for the delay without defeating the action or the performance of the duty. The question requiring our attention in the context is whether the power of the President under Article 89 and that of the Governor under Article 128 is more of an executive power or a legislative act, and in either case, whether its exercise can be said to defeat what the Constitution expressly ordains in Article

86. The first question has arisen because some doubt has been expressed that in view of Constitutional provisions relating to money matters and their handling by the legislatures (Articles 78 to 88 and Articles 122 to 127) the ‑Ordinance making power cannot be utilized in substitution of that prescription. The first part of the question should present no difficulty because Chapter 5 of our Constitution deals with interpretation and its Article 260(2) provides as hereunder: "In the Constitution" Act of Majlis‑e‑Shoora (Parliament) or "Federal Law" or "Act of Provincial Assembly" or "Provincial law" shall include an Ordinance promulgated by the President or, as the case may be, a Governor." In the Indian Constitution Article 367 while importing the applicability of General Clauses Act, subject to adaptations and modifications provides in the Interpretation Clause as hereunder: "Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made by, the Legislature of a State, shall be construed as including a reference to an Ordinance made by the President or, to an Ordinance made by a Governor, as the case may be." In the first place the expression "shall include" used in our Constitution is stronger than the expression "shall be construed" though the effect of both is almost the same. This provision of the Indian Constitution came up before the Indian Supreme Court in the case of A.K.Roy v. Union of India and another (AIR 1982 S C .710) and with regard to the nature of the Ordinance making power the following decision was given : "It is clear from this provision, if indeed there was any doubt about the true position, that the Constitution makes no distinction in principle between a law made by the legislature and an Ordinance issued by the President. Both, equally, products of the exercise of legislative power and, therefore, both are equally subject to the limitation which the Constitution has placed upon that power." As regards the purpose, the rationale and the necessity for reposing such a power in the Chief Executive in the context of our experience on the sub‑continent the following observations were made:‑ "It is thus clear that the Constituent Assembly was of the view that the President's power to legislate by issuing an Ordinance is as necessary for the peace and good government of the country as the Parliament's power to legislate by passing laws. The mechanics of the President's legislative power was devised evidently in order to take care of urgent situations which cannot brook delay. The Parliamentary process of legislation is comparatively tardy and can conceivably be time consuming. It is true that it is not easy to accept with equanimity the proposition that the executive can indulge in legislative activity but the Constitution is what it says and not what one would like it to be. The Constituent Assembly indubitably thought, despite the strong and, adverse impact which the Governor‑General's Ordinance‑making power had produced on the Indian community in the pre‑independence era, that it was necessary to equip the President with legislative powers in urgent situations. After all, the Constitution makers had to take into account life's realities." As for the likely abuse of such a power the Court observed as hereunder: ‑ "The Constituent Assembly, therefore, conferred upon the executive the power to legislate, not of course intending that the said power should be used recklessly or by imagining a state of affairs to exist when, in fact, it did not exist; nor, indeed, intending that it should be used mala fide in order to prevent the people's elected representatives from passing or rejecting a Bill after a free and open discussion, which is of the essence of democratic process. Having conferred upon the executive the power to legislate by Ordinances, if the circumstances were such as to make the exercise of that power necessary, the Constituent Assembly subjected that power to the self‑same restraints to which a law passed by the legislature is subject. That is the compromise which they made between the powers of the Government and the liberties of the people." As regards the scope and the limitations on the Ordinance making power. two such limitations have been pointed out. The first concerns the legislative procedure itself with regard to an appropriation bill culminating in its authentication by the Prime Minister under Article 83 of the Constitution. The second limitation suggested as likely is the conflict with and the frustration of the Constitutional T provision made in Article

86. A possible limitation 'on the Ordinance making power could have been found if Article 83(3) had not the opening expression "subject to the Constitution" and Article 89(2)(a)(i) had not made express mention of clause (2) of Article 73 of the Constitution as a fit subject for Ordinance. Article 83 of the Constitution is as hereunder:‑ "83(1).‑The Prime Minister shall authenticate by his signature a schedule specifying‑‑ (a) the grants made or deemed to have been made by the National Assembly under Article 82, and (b) the several sums required to meet the expenditure charged upon the Federal Consolidated Fund but not exceeding, in the case of any sum, the sum shown in the statement previously laid before the National Assembly. (2) The schedule so authenticated shall be laid before the National Assembly, but shall not be open to discussion or vote thereon. (3) Subject to the Constitution, no expenditure from the Federal Consolidated Fund shall be deemed to be duly authorised unless it is specified in the schedule so authenticated and such schedule is laid before the National Assembly as required by clause (2)." Article 89 provides as hereunder:‑ "(1) The President may, except when the National Assembly is in Session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require. (2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of Majlis‑e‑Shoora (Parliament) and shall be subject to like restrictions as the power of Majlis‑e‑Shoora (Parliament) to make law, but every such Ordinance‑‑ (a) shall be laid‑‑ (i) before the National Assembly if it contains provisions dealing with all or any of the matters specified in clause (2) of Article 73, and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution; (ii) before both Houses if it does not contain provisions dealing with any of the matters referred to in sub‑paragraph (i), and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of the period a resolution disapproving it is passed by either House, upon the passing of that resolution; and (b) may be withdrawn at any time by the President. (3) Without prejudice to the provisions of clause (2), an Ordinance laid before the National Assembly shall be deemed to be a Bill introduced in the National Assembly." Article 73 is as hereunder:‑‑ "(1) Notwithstanding anything contained in Article 70 a Money Bill shall originate in the National Assembly and after it has been passed by the Assembly it shall, without being transmitted to the Senate, be presented to the President for assent. (2) For the purposes of this Chapter, a Bill or amendment shall be deemed to be a Money Bill if it contains provisions dealing with all or any of the following matters, namely:‑ (a) the imposition, abolition, ‑remission, alteration or regulation of any tax: (b) the borrowing of money, or the giving of any guarantee by the Federal Government, or the amendment of the law relating to the financial obligations of that Government; (c) the custody of the Federal Consolidated Fund, the payment of moneys into, or the issue of moneys from, that Fund; (d) the imposition of a charge upon the Federal Consolidated Fund, or the abolition or alteration of any such charge; (e) the receipt of moneys on account of the Public Account of the Federation, the custody or issue of such moneys; (f) the audit of the accounts of the Federal Government or a Provincial Government; and (g) any matter incidental to any of the matters specified in the preceding paragraphs. (3) A Bill shall not be deemed to be a Money Bill by reasons only that it provides‑‑ (a) for the imposition or alteration of any fine or other pecuniary penalty, or for the demand or payment of a licence fee or a fee or charge for any service rendered; or (b) for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes. (4) If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the National Assembly thereon shall be final. (5) Every Money Bill presented to the President for assent shall bear a certificate under the hand of the Speaker of the National Assembly that it is a Money Bill, and such certificate shall be conclusive for all purposes and shall not be called in question." Clause (2)(c) of Article 73 reproduced above which has been underlined deserves particular attention. it brings in as a fit subject of Ordinance what is now before us. The expression "the issue of money from that fund" has no other meaning except authorizing of expenditure from Consolidated Fund. "Issue" has been defined in Black's Dictionary as "To put into circulation"; "To send out officially"; "to deliver for use". Where it was intended to inhibit the Ordinance making power the Constitution makes express provision for it. For example 'in the e Indian Constitution after prescribing the Financial Procedure, as does our Constitution in Article 78 to Article 82, clause (3) of Article 114 of the Indian. Constitution provides:‑ "Subject to the provisions of Articles 115 and 116, no money shall be withdrawn from the Consolidated Fund of India except under appropriation made by law passed in accordance with the provisions of this Article. (underlining ours). Articles 115 and 116 of the Indian Constitution to which this clause is subordinate is not relevant in our context because they deal with supplementary, additional or excess grants. and votes on account. Another feature to be noted is that Article 128 (Ordinance making power of the Governor) does not contain as does Article 89' any reference to corresponding provision 115(2)(c) but one ground of the subordination of Article 123(3) to other provisions of the Constitution remains. Besides, the omission is not directed towards obtaining a different result but because there are not two houses in the Province, and the difference existing in Parliament over the: Legislative treatment of Fiscal matters did not in terms exist in the Province. During the course of the hearing of this reference a suggestion was made that an Ordinance under Article 89 has a clog, a jurisdictional requirement or a precondition viz. that an Ordinance can be promulgated "except when the National Assembly is in session', and this requirement necessarily assumes the existence of National Assembly. The power of promulgation of the Ordinance is not. available when the National Assembly stands dissolved, as is the position now. A clear answer to the problem is found in May's Parliamentary Practice in the following words . "A session is the period of time between the meeting of a Parliament, whether after 4 prorogation or a dissolution, and its prorogation . Not only the meaning is very clear, the suggestion has the effect of giving rise to a legislative vacuum during the period that the National Assembly stands dissolved and new National Assembly comes into existence as a result of the election. Howsoever urgent or imminent the requirement no law can be made to meet the situation during this period. The expression 'session' in relation to Parliaments/ Assemblies having been given a definite meaning, there is no reason why a different, meaning should be given, moreso when another Constitutional impasse is likely. So far as Article 86 is concerned another provision to be noted is Article 82(3) which provides: ‑ "No demand for a grant shall be made except on the recommendation of the Federal Government." Article 86, thereafter empowers Federal Government in a given situation to authorise expenditure from Federal Consolidated Fund for a period not exceeding four months. This is a Constitutional entrustment of legislative function on terms to the Federal Government and this is an exception to what is provided in Article 83(3). The X capacity of the Federal Government while exercising this power is distinct in the Constitutional framework from the Ordinance making' power of the President (Article 89). As regards the object of the two powers, the distinction should be equally clear. As long as power under Article 86 is available, the precondition required for exercise of power under Article 89 will not and cannot arise. It is only when, that reserve power under Article 86 gets exhausted that the exceptional reserve power recognized in Article 89 comes into existence. Such reserve and exceptional powers have been considered consistent with free Government only when their control is lodged elsewhere than in the executive who exercises them. Such a power has been likened to a safety valve to meet extraordinary situations and designed to save and not to destroy democracy. Such provisions remedy the rigidity of a Federal Constitution and make it flexible to an extent to be capable of meeting the challenges not totally outside the ken of the framers of the Constitution. However, it should be clear that by its very nature in the context of the present impasse the power under Article 82(2) and Article 128 is capable of being invoked once so as not to exceed in all the period of four months under Article 89(2)(a) and three months under Article 128(2)(a). I find another difficulty in tinkering with the period fixed be Article 86 of the Constitution. The relevant portion of Article 86 ("not exceeding four months in any financial year") being couched in the negative has a prohibitory and imperative effect, incapable of extension or modification either by rule of interpretation, by implication or even on grounds of State necessity. The repository of the power has been put on notice by this negative command that in no case can it exceed the period of four months in a financial year. Therefore, answer to this question should not run counter to the Constitutional Scheme giving effect to the intention in prohibitory and imperative form. A power which the Constitution prohibits should not be entrusted by extending the period to the Federal Government. Instead a power preserved and recognized by President's Order No.20 of 1985 by amending clause (2) of Article 89 should be referred for meeting the difficulty. The answer to the question referred under Article 186 is that powers ‑conferred by Article 89(2)(a) can be invoked by the President and powers conferred by Article 128(2)(a) can be invoked by the Governor for meeting the situation as is likely to arise after 31‑10‑1988 in the matter of incurring expenditure from the Consolidated Funds. The exercise of this power shall however, be subject to all the limitations and conditions prescribed in the respective provisions of the Constitution. In accordance with the majority opinion, the question referred is answered as follows:‑ The question referred under Article 186(1) by the President of Pakistan is answered under Article 186(2) in the terms that, the Federal and Provincial Governments can authorize incurring of expenditure out of the Federal and Provincial Consolidate Funds upto one month after the declaration of the results 0 the general election of the National and the Provincial Assemblies, scheduled for 16 and 19 November, 1988, respectively. M.B.A./R-68/S Reference answered accordingly