1998 PLP 1917 (SCMR)

AJMAL MIAN, C.J.

By this common order, we intend to dispose of the above two Constitution Petitions which were filed on 19-11-1997 under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution. The petitioner in Constitution Petition No. 43 of 1997 claims that he is a citizen of Pakistan and is the President, Pakistan Solidarity Front, a political organization; whereas the petitioner in Constitution Petition No. 44 of 1997 also claims to be a citizen of Pakistan and is the Chairman of a political party, namely, Muslim Welfare Movement Pakistan.

2. It seems that in the Press on 18-11-1997 the contents of Contempt of Court (Amendment) Bill, 1997, which was passed by both the Houses and was sent to the President for his assent, appeared. The petitioners were aggrieved by the contents of the same as according to them, the same were violative of inter alia Article 25 of the Constitution. They, therefore, filed the aforementioned Constitution Petitions, in which they prayed for the following reliefs:-- "It is, therefore, respectfully prayed that by accepting this petition the Contempt of Court (Amendment) Act, 1997 be declared to be void and inoperative on account of its inconsistency with the fundamental rights and other provisions of the Constitution." "It is, therefore, respectfully prayed that this Honourable Apex Court of Justice may be pleased to declare that impugned Bill of Contempt of Court (Amendment) Act, 1997 is void and ultra vires to Articles 2A, 5, 14, 25, 66, 68, 175, 187, 189, 190 and 204 of the Constitution and as well as Contempt of Court Act, 1976 and also against the spirit of the order of the Honourable Supreme Court dated 17-11-1997. (b) To declare that impugned Bill of Contempt of Court (Amendment) Act, 1997 passed by the National Assembly of Pakistan and the Senate of Pakistan with mala fide intention to provide secure the contemner who are appearing in this Hon'ble Apex Court in Contempt Petitions. (c) To restrain the operation/function of the impugned Bill/Act pertaining to Contempt of Court (Amendment) Act. 1997 to enforce as enactment and the Bill is before the respondent No .l for assignment, in the light of above circumstances of the case, till final decision of this petition in the interest of justice. (d) Any other relief/reliefs which may be granted under the- circumstances of the case."

3. It appears that alongwith memos. of petitions, the petitioners also filed C.M.As. Nos. 936/1997 and 937/1997 for an ad interim order for the following reliefs:-- "It is therefore, respectfully prayed that pending disposal of the case, operation of the impugned Bili/Act, may please be suspended in the interest of jsutice." "It is, therefore, respectfully prayed that this Hon'ble Court may be pleased to pass ad-interim order in the larger interest of justice. "

4. The aforementioned Constitution Petitions were placed in Court on 20-11-1997. It seems that the above stay applications were taken up. Mr. Iftikhar Hussain Gilani, learned Senior Advocate Supreme Court appeared for the petitioner in Constitution Petition No. 43 of 1997 and inter alia contended that "the legislation proposed to be passed in this matter amounts to legislative adjudication and is contrary to Article 191 of the Constitution under which the Supreme Court has framed its rules and is also inconsistent with Item 55 to the Fourth Schedule of the Federal Legislative List which prohibits curtailment of jurisdiction and power of the Supreme Court".

5. Upon the aforesaid applications, an interlocutory order was passed on the same day by a Bench headed by the then Chief Justice. The operative portion of the order reads as under:-- "In the circumstances, we deem it fit and proper to direct respondent No.1 in Constitutional Petition No. 43 of 1997 not to give assent, and if assent has already been given by now, then the operation of the Contempt of Court (Amendment) Act, 1997 is hereby suspended until further orders." Notices were also ordered to be issued to the respondents and to the learned Attorney-General for Pakistan.

6. The aforementioned Constitution Petitions have come up for hearing before us today. Mr. Iftikhar Hussain Gilani, learned Senior Advocate Supreme Court who had appeared on 20-11-1997, has not appeared today but Mr. Navid Malik, the petitioner in Constitution Petition No.43 of 1997, has appeared in person and stated that he would argue the case himself; whereas nobody has appeared in Constitution Petition No. 44 of 1997. Mian Tariq Mehmood learned Deputy Attorney-General, has appeared on behalf of the learned Attorney-General in response to the Court's notice.

7. It is an admitted position that the then President of Pakistan had not assented to the above Bill by the time when the aforesaid interlocutory prohibitory order was passed on 20-11-1997. We enquired from the petitioner, Mr. Navid Malik, as to how this Court could have prevented the President from assenting to the above Bill and how, the aforesaid Constitution Petition is competent when the Bill has not become an Act particularly keeping in view that under clause (1) (b) of Article 75 of the Constitution, the President has the option to return the Bill to the Parliament with a message requesting that the Bill or any specified portion thereof be re-considered and that any amendment specified in the message be considered. He was unable to give any reply but requested that he be allowed to withdraw the above Constitution Petition and that he would file a fresh Constitution Petition if the above Bill becomes the law. However, we deemed it proper to clarify that the aforementioned Constitution Petitions are misconceived as no writ can be issued against the Parliament or the President from passing a Bill or assenting to it as it- will amount to interference with the legislative work. However, once a Bill becomes an Act, this Court is entitled to examine the question, as to whether any provision of the new enactment is violative of any of the provisions of the Constitution warranting declaration as ultra vires. In the present case since the Act has not been passed, the aforesaid Constitution Petitions are misconceived and they are, therefore, dismissed.

8. However, before parting with the above discussion, we may observe that it will be desirous that the concerned functionaries should examine the contents of the Bill in order to see, whether the proposed Act contains any provision which may be violative of any provision of the Constitution or which I may tend to interfere with the Independence of Judiciary. The interim order C dated 20-11-1997 is hereby, recalled. M.B.A./N-30/S Order accordingly.