P L D 1963 Supreme Court 486 (PLP)

The contention that clause (2) of Article 104 provides an exclusive forum for determination of questions of disqualification of members of an Assembly through a reference by the Speaker of the Assembly to the Chief Election Commissioner, appears to me to be devoid of substance. It is conceded by the learned Attorney‑General that even if the Chief Election Commissioner had given a finding on a reference, to be made in that behalf by the Speaker of the Assembly, the Courts would not be precluded from entertaining a petition for an order in the nature of a writ of quo warranto under Article 98 of the Constitution, if the Chief Election Commissioner had misinterpreted the Constitution in arriving at his conclusion. The position was therefore adopted by the learned Attorney‑General that at least the question must at first be decided by the Chief Election Commissioner on a proper reference, before the Courts could be approached for redress. This would seem to suggest that the reference to the Chief Election Commissioner was merely an alternative and preliminary remedy and unless it is as efficacious and expeditious as the one provided by resort to Courts, it need not stand as a bar in the way of a litigant approaching the Courts. The Chief Election Commissioner is not a Court and it would obviously be inapt for an issue of constitutional importance to be referred to him for decision. He might feel himself bound by the letter of an enactment, without going into the question of its validity vis‑a‑vis the Constitution Clause (2) of Article 104 seems designed to enable references to be made to the Chief Election Commissioner in cases where the disqualification alleged is dependent on a finding of certain facts after an inquiry and apparently, disqualification, on the wording of this clause, takes effect on the date that the Chief Election Com missioner finds that it has been incurred. Clause (1) of Article 104 on the contrary is couched in absolute terms so that no inquiry would be needed at all to determine whether the President or a Governor or a Minister or any person holding an office of profit in the service of Pakistan, had ceased to be a member of the Assembly. The clause declares that this disqualification would be incurred on the day on which he enters upon his office and that is a fact of which judicial notice could be taken without a formal inquiry. Clause (2) of the Article therefore does not govern clause (1) as was suggested on behalf of the appellants. Clause (1) appears to be an independent provision, which does not attract the machinery provisions of clause (2). It was mentioned by Mr. Brohi on behalf of the respondent that the question of disqualification of the appellants was sought to be raised in the National Assembly by a resolution, which was however not allowed to be moved by the Speaker, on an objection raised by the Law Minister that it contained a reflection on the President. It would, therefore, seem that there is no guarantee that on a question of this nature being raised in the Assembly, the Speaker would necessarily make a reference to the Chief Election Commissioner and if for some reason he declines to do so, then obviously the aggrieved party could only have recourse to the superior Courts for redress. The President while purporting to act in exercise of power conferred by Article 224 of the Constitution, was enacting what may be termed as sub‑constitutional legislation. His action in this behalf could not be placed on a par with the promulgation of the Constitution itself, of which he was the author. It was an act of self‑abnegation on his part to have ended the Martial Law regime by the promulgation of the Constitution, but with its enforcement, he also placed himself under the restraints envisaged by the Constitution. The argument, therefore, that the action of the President was immune from judicial scrutiny because he himself was the source of the Constitution itself, originally, cannot be acceded to. The clause inserted in Article 224, by the impugned Order, barring all Courts from questioning the validity of the amendments introduced by the Order, is not relatable to any "difficulty" in enforcing the Constitution and would clearly be outside the pur‑view of the Article itself. For ouster of the Court's jurisdiction this clause consequently would be of no avail to the appellants. Clause (3) of Article 224 does not confer unfettered power on the President to make any amendments that he might choose, in the Constitution. The power is qualified by the condition that it should be exercised for the purpose of removing any difficulties that may arise in bringing the Constitution or any of its provisions into operation. Out of these words, a power cannot be spelt out to alter the Constitution itself so as to change it, for instance from the Presidential form which it clearly contemplates, to the Parliamentary form. The Constitution as a whole has to be brought into force and if any difficulty arises in the machinery of enforce ment, it could certainly be removed by an order of the President, within the specified time, but the word 'difficulty' could not receive such a large connotation as to comprehend within its scope, a drastic alteration such as would revolutionize the scheme of the Constitution itself in the present case, apparently, some of the members who were sought to be taken into the Council of Ministers, were reluctant to accept their new responsibilities unless they were allowed at the same time to retain membership of the Legislature. Other Ministers were however appointed who were not members of the Legislature and who to all appearances, functioned efficiently as such. It could not be said therefore that there was any "difficulty" in bringing into operation the provisions of the Constitution, with regard to the appointment of Ministers. The accommodation of wishes of certain individuals, could not be termed a "difficulty" within the meaning of clause (3) of Article

224. I am unable to accede to the contention raised by the learned Attorney General that the interpretation of the word "difficulty" rested solely with the President and could be resolved exclusively by his subjective satisfaction. The language of Article 224 (3) would be inconsistent with such a contention. The difficulty in question perhaps had to be of a temporary character, as is suggested by, the fact that the power under clause (3) was to be exercisable only for a period of three months after the commencing day. It could not be said that after the expiry of three months' period, there will not be found members who could again raise the question of combining minister-ship with membership of the Assembly. That the word `difficulty' must receive a restricted meaning is also apparent from the fact that clause (3) of Article 224 talks of "adaptations of the Constitution whether by way of modification, addition or omission". The word `adaptations' provides the key to the interpretation of this clause. It savours of a machinery provision, inserted to facilitate the enforcement of the Constitution. It cannot be equated with the power of amendment of the Con stitution at large. The words "modification, addition or omis sion" occurring in this clause, have to fall within the confines of "adaptation" of the Constitution, in order to be valid under this clause. I am, therefore, unable to agree with the contention raised that the power of the President was not circumscribed by any restric tions under this clause. Even on much wider language employed in Article 234 of the 1956‑Constitution, this Court had no hesitation in declaring, in Special Reference No. 1 of 1957 that the President was not invested with any powers to introduce changes in the Constitu tion so as to alter its very basis. Judged in the light of the restric tions, which are implicit and to a certain extent explicit in this clause, it is difficult to maintain that the impugned Order had made valid changes in the Constitution, so as to allow Ministers to retain their seats in the Legislature as members. It could not for instance be argued and it is not claimed that the President had the power to do away with the Legislature itself, if members of the Legislature either enacted certain laws or expressed certain opinions in the shape of resolutions, which were not acceptable to the President. The difficulty of correcting an error once made, in an order passed under clause (3) of Article 224 after the expiry of three months from the commencing day, would also be a pointer in the direction of a limited power being conferred on the President rather than a wide unrestricted mandate to effect any changes in the Constitution that he might be advised to make, as a result of pressure tactics adopted by certain political groups or parties. Judged in the light of this exposition, it appears to me that the High Court reached the correct conclusion in the case in holding that the impugned amendments were ultra vires the President, under the provisions of clause (3) of Article

224. The appeal, therefore, merits dis missal. FAZLE‑AKBAR, J.‑--I have read the judgment prepared by the Chief Justice and I generally agree with his conclusions and d reasonings, but having regard to the constitutional importance of the points raised in this case I wish to add a short judgment of my own. In this case the constitutional validity of the Removal of Difficulties (Appointment of Ministers) President's Order No. 34 of 1962 has been challenged on the ground that it is ultra vires the powers of the President under Article 224 (3) of the Constitution. This contention raises a number of questions; (i) What organs are to have the authority to decide whether the President has properly used his power? (ii) Is there any limitation on the power of the President? (iii) Whether such limitations are to be finally interpreted and decided by judicial tribunal in other words whether its judicial review is permissible? (iv) If so, has the President exercised his power within the ambit of the Constitution? Before proceeding to examine the above questions I think it right to point out that our Constitution expressly gives power to the superior Courts for the interpretation of the Constitution. By virtue of the provisions of Article 58(2) (a) of the Constitution interpretation of the Constitution is appealable to the Supreme Court as of right. Therefore, despite the desperate argument of the learned Attorney‑General no doubt has arisen in my mind even for a moment as to the power of the superior Courts to interpret the Constitution. Our attention was drawn to Article 133 (2) of the Constitution to show that `the validity of a law shall not be called in question on the ground that the Legislature by which it was made had no power to make the law. This Article occurs in Part VI of the Constitution, which deals with `Relations Between the Centre and the Provinces'. Article 131 confers exclusive power on the Central Legislature to make laws for the whole or any part of Pakistan with respect to any matter enumerated in the Third Schedule. Article 132 provides that a Provincial Legislature shall have power to make laws for the Province, with respect to matters enumerated in the Third Schedule. Then comes Article

133. Clause (1) of this Article gives power to the Legislature to decide whether it has power under the Constitution to make a law or not. Clause (2) says that "the validity of a law shall not be called in question on the ground that the Legislature by which it was made had no power to make the law." Article 134 provides that "when a Provincial Law is inconsistent with a Central Law, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." It may be asked what do these Articles mean. The answer is that they define the respective field of legislation of the Central and Provincial Legislatures. It also ensures by Article 133(2) that if a Legislature acts in excess of its power, it shall not be questioned by a Court. If the Court finds such law warranted by the Constitution, they are bound to pronounce it valid. They are not to consider whether the effect of their decision will be to annul good law or to uphold the bad one. But if it is said that the effect of the Article 133 is to deprive the superior Courts of their power to see whether the impugned Act violates the Constitu tion or not, 1 am unable to accept such contention because I do not look upon the provision made in this Article as one which either in language or in the intention of the Constitution‑maker was meant to cut down and override the primary rights given to the Courts under Article 58 of the Constitution. In Marbury v. Madison (U S S C R 2 Law Ed. U S 5‑8), Marshal, C. J. points out the absurdity of such a proposition thus: "If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the Courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive` consideration. It is emphatically the province and duty of the judicial depart ment to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the constitution and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the constitution is to be considered, in Court, as a paramount law, are reduced to the necessity of maintaining that Courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our Government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be given to the legislature a practical and real omnipot ence, with the same breath, which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure." The Constitution, therefore, in its wisdom has not only given power to the superior Court to interpret Constitution but has also made specific provisions in the oath which a Judge of the superior Court is required to take before assumption of office that "he will preserve, protect and defend the Constitution". For the above reasons I think the contention of the Attorney General that the superior Courts had no power to decide whether the President had exercised his power within the ambit of the Constitution or not, was too extravagant to be entertained. If the President's use of power could not be reviewed by the Court, as suggested by the learned Attorney‑General, then he and not the Constitution would be the Supreme Law of the land. I may here mention that in countries with a written Constitution it would appear that the exclusion of control by the superior Courts will only be possible when the Constitution says so. When our Constitution has denied access to the Court it has clearly said so. [See Articles 6 (2) and 8 (2) of the Constitution.] It is also worthy to mention that the power to interpret the Constitution has been given to the superior Courts for safeguarding and upholding the Constitution. Really this power does not give or real omnipotence‑but to see if the Legislature has carried the mandate of the Constitution. In such cases the Judges ask not merely whether the law is on the Statute Book but whether it has a right to be there. It was next contended that the dispute really relates as o the disqualification of three members of the National Assembly and hence the remedy provided in Article 104 (2) of the Constitution should have been availed of'. Disqualification of the said members may be the ultimate result of the decision but the main question for our consideration really, is: whether the impugned Order tinder, which they continue to be such members violated the fundamentals of the Constitution under the Constitution the Chief Election Commissioner has no power to challenge the validity of an Order made by the President. Hence so long as the Order stands, no question of disqualification of a member would arise. This fully explains why the Speaker of the National Assembly, did not refer the question of their disqualification to the Chief Election Commissioner in accordance with the provisions of clause (2) of Article

104. In the view I have taken it is not, therefore, necessary to discuss whether I can accept as sound the contention of the learned Attorney‑General as regards the exclusive jurisdiction of Chief Election Commissioner to decide whether a member has become disqualified or not. Now I come to the main point in this case namely: whether the Removal of Difficulties (Appointment of Ministers) President's Order No. 34 of 1962 is ultra vires the powers of the President under Article 224 (3) of the Constitution. Article 224 (3) of the Constitution is in these terms "At any time before the commencing day or before the expira tion of three months after the commencing day, the President may, for the purpose of removing any difficulties that may arise in bringing this Constitution or any provision of this Constitution, into operation (whether in respect of the elections referred to in clause (2) of this Article or in any other respect direct, by Order, that the provisions of this Constitution shall, during such period as is specified in the Order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient." In exercise of the power contained in this Article the President has brought in fundamental changes by amending the Constitution. The question therefore is: Whether this Article empowers the President to make such amendments. A written Constitution is a rigid one and it could be altered or amended only by employment of some special or prescribed machinery. In our Constitution the power of amendment has been described in detail in Part XI under the heading "Amendment of Constitution". Article 208 provides that‑ "subject to this Part, this Constitution may be amended by an Act of the Central Legislature." Article 209 (1) says "A bill to amend this Constitution shall not be presented to the President for assent unless it has been passed by the votes of not less than two‑thirds of the total number of members of the National Assembly " It is clear from the above provisions that the amendment of the Constitution being a task of great responsibility the Constitu tion not only sets up a machinery for such amendments but also regulates the methods by which amendment should be made. The prima facie presumption, therefore, must be that the intention of the Constitution is that this duty is to be performed primarily by the legislative body itself. Except this there is no other provision under which the amendment of the Constitution is permissible. Crawford in his book `On the Statutory Construction' at page 334 says "It is a well‑known rule of construction that if a statute directs that certain act shall be done in a specified manner or by certain process, then performance in any other manner than those named is impliedly prohibited." In any event it is clear from Part XI of the Constitution that no power has been bestowed on the President to amend the Constitution at his own will. The next question would be: Does Article 224 (3) confer such a power on him during the transitional period? This Article postulates by its language the existence of difficulties actually experienced in the working of the Constitution and whose removal would be necessary for bringing the Constitution into operation. Thus the limited power of the President has been spelled out by the specific words used in this Article and the said power has been confined to bring the Constitution into operation. It was contended that this included the power to amend the Constitution. The Constitution‑maker, however, has confined this Article to a very definite situation and though it was open to make the Article more comprehensive or general, it has not done so. Clear recital of definite objectives in the Article furnishes good ground for holding that it is not an arbitrary power. The discre tion that is conferred on the President is not an unguided discretion, It is to be exercised in conformity with the policy by which the discretion is given and it is in relation to that objective that the vires of the Order is to be testes If he proceeds to exercise power on a basis which has no relation to the objective, his action cannot be supported. It is also clear that this Article was added in the end lest the draftsmen had overlooked something. When complex schemes of reforms are the subject of the Constitution, it was obviously not possible for the draftsmen to foresee all the contin gencies. Therefore, the President was permitted to overcome such difficulties by adopting such measures as were necessary to bring the Constitution into operation, i.e., to achieve object which was intended to be achieved by the Constitution. The power under' this Article, therefore, can be exercised only for the limited purpose of bringing the Constitution in operation and it should accordingly be restricted to those purely machinery arrangements vitally requisite for that purpose. From the language of the Article it is abundantly clear that this Article was never meant to bestow power on the President to change the fundamentals of the Constitution. Our Constitution has provided for a Presidential form of Govern ment and the President by the impugned Order has introduced a semi‑Parliamentary form of Government. As already stated, this Article 224 (3) was never meant to bestow power on the President to change the fundamentals of the Constitution. However whole some the intention and however noble the motive may be the extra‑constitutional action could not be supported because the President was not entitled to go beyond the Constitution and touch any of the fundamentals of the Constitution. Having given the case my best and most anxious consideration I have arrived at the conclusion that President's impugned Order is unconstitutional and void. For the reasons stated above I therefore, agree with the order proposed by the Chief Justice. B. Z. KAIKAUS, J.‑There are three main questions to be decided in this case, two preliminary objections one based on Article 104 and the other on Article 133, and the main issue in the case i.e. the power of the President to promulgate the impugned Order. The discussion of the two preliminary objections is to be prefaced by a stress on the rule of interpretation which lays down that provisions encroaching upon the jurisdiction of the Courts, particularly of the superior Courts, are to be strictly construed. There is need for greater strictness in a case where the bar to the jurisdiction of the Courts relates to the interpretation of the provisions of the Constitution, a Constitution which by their oath the Judges are bound to protect and preserve. The provision in Article 58 that the existence of a constitutional question is sufficient for the case being laid before the Supreme Court is a further circumstance supporting the need for such strictness. So far as the objection based on Article 133 is concerned it has to be observed that a provision which bars the jurisdiction of the ordinary Courts in respect of the violation of a law without providing for an alter native Tribunal for the decision of a dispute relating to such violation practically takes away the whole force of the law which is violated for a right without any remedy whatsoever is an impossible conception. If it be provided that a Legislature has no power to make a particular law, but that there is no jurisdiction in any Court or Tribunal to pronounce a law enacted by that Legislature to be invalid and the Legislature itself is the judge of its jurisdiction to legislate the effect is that no restriction on the power of the Legislature exists. It is like making the wrong‑doer the judge of his own wrong. A restriction on the power of the Legislature necessarily involves an inability on the part of the Legislature to ignore the restriction and the existence of means for the enforcement of the restriction. Otherwise it will be restriction. I will begin with the objection based on Article 104 for although the Attorney‑General accepted that the decision of the Election Commissioner would be liable to challenge in the High Court by a petition under Article 98, the effect in a case where the High Court has jurisdiction to decide particular matter itself and a case where it can only interfere and quash a decision by virtue of its power under Article 98 is of importance and the jurisdiction of the High Court in the latter case is a very limited one. Before proceeding with the discussion I will reproduce Articles 103 and 104: ‑ "103. (1) Except as provided in this Article, a person is qualified to be elected as, and to be, a member of an Assembly if: - (a) his name appears‑ (i) in the case of the National Assembly‑on the electoral roll for any electoral unit or (ii) in the case of the Assembly of a Province‑on the electoral roll for an electoral unit in the Province ; and (b) he is not less than twenty‑five years of age. (2) A person is disqualified from being elected as, and from being, a member of an Assembly if‑ (a) he holds an office of profit in the service of Pakistan, (b) he is an undischarged insolvent ; (c) he has, within the previous period of five years, been convicted of an offence by any Court and sentenced to transporta tion or to imprisonment for not less than two years or been sentenced to death and that sentence has been commuted to transportation or imprisonment ; (d) he has ceased to be a citizen or has affirmed allegiance to a foreign State ; or (e) he is otherwise disqualified from being a member of that Assembly by this Constitution or by or under any law. (3) Notwithstanding paragraph (a) of clause (2) of this Article, the President, a Governor or a Minister is qualified to be elected as a member of an Assembly, but if he is so elected, he is not qualified to be a member of the Assembly until he ceases to hold office as President, Governor or Minister. 104. (1) If a member of an Assembly is elected as President or appointed as a Governor or Minister or to any other office of profit in the service of Pakistan, he shall cease to be a member of the Assembly on the day on which he enters upon his office. (2) If any question arises whether a member of an Assembly has, after his election, become disqualified from being a member of the Assembly, the Speaker of the Assembly shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, the member shall cease to be a member. (3) If any person sits or votes in any Assembly knowing that he is not qualified to be, or is disqualified from being, a member of the Assembly, he shall be liable in respect of every day on which he so sits or votes to a penalty of five hundred rupees, which may be recovered from him as a debt due‑ (a) In the case of the National Assembly‑to the Central Government; or (b) in the case of the Assembly of a Province‑to the Govern ment of the Province." The main argument of the Attorney‑General was that when a person ceases to be a member, because he became a Minister, it is a case of a disqualification and the question as to whether a disqualification exists has to be determined by the Election Com missioner. On behalf of the respondent the contention was that the word "disqualification" was inapplicable to a case where according to the Constitution on the happening of a particular fact a person ceases to be member. It was pointed out that the word "disqualification" is not used in Article 104 (1) and that in Article 103 with respect to a "disqualification" the expression "cease to be a member" is not used. A person who is disqualified, it was argued, ceases to be a member only when the Election Commissioner finds that he is in fact disqualified and it is not by virtue of the disqualification that he ceases to be a member but by virtue of the order passed by the Election Commissioner. It appears to me that it is difficult to support the contention of the respondent in this respect. The holding of an office of profit in the service of Pakistan is under Article 103 (2) a dis qualification. If,, therefore, a question arises as to whether a person has ceased to be a member because he holds an office of profit in the service of Pakistan it is to be decided by the Election Commissioner. Article 103(2) does not debar a person only from being elected as, but also from being, a member of an Assembly, which means that a member of the Assembly becomes disqualified on account of Article 103(2) from remaining a member if he begins to hold an office of profit in the service of Pakistan. Even if Article 104(1), did not exist a Governor, a Minister, and any person holding an office of profit in the service of Pakistan would be disqualified from continuing as a member on account of Article 103(2). In the definition of "service of Pakistan" in the Constitution as it stood before the impugned Order a Minister was included. This is apparent also from Article 103(3), which gives an option to the Minister who is elected as a member to continue in his office as Minister or to become a member. The object of Article 104 (1) is only to provide for the date on which the person concerned will cease to hold office because the persons mentioned in this provision already stand disqualified on account of Article 103(2) from continuing as members of the Assembly. According to Article 104(1) if a person is appointed a Governor or a Minister it is not on the date of his appointment that he ceases to be a member, but only on the day on which he enters upon his office. Article 104(2), it would be observed, clearly states that if a person has "become disqualified from being a member of the Assembly the question will be decided by the Election Commissioner. Article 103(2) says that if a person holds an office of profit in the service of Pakistan he is disqualified from being a member of the Assembly. There can be no doubt, therefore, that if a question arises as to whether a person is dis qualified from being a member as he is holding an office of profit in the service of Pakistan, Article 104(2) is attracted ands the 1 matter can be referred to the Election Commissioner. Mr. Brohi argued that clause (2) of Article 104 was really only an adjunct to clause (3), which provides for a penalty if a person who is disqualified from being a member votes in the Assembly. Learned counsel contended that it is only for the purpose of imposing this penalty that the Election Commissioner whether the person concerned is not disqualified. I find, in, this contention. It is not at‑ all necessary that a person should have voted after his alleged disqualification in order that the Speaker may refer the matter to the Election Commissioner. The member concerned may have deliberately refrained from voting because a question has arisen as to his right to vote or the question may have arisen in view of the fact that he wanted to exercise his right of vote. I am bound to say that the provision as to the decision of this dispute by the Election Commissioner is not very satisfactory. It would be observed that he can only decide the question of disqualification and cannot decide whether a person was qualified or not, although clause (3) of Article 104 relates to both cases. A person becomes liable to a penalty even if he was not qualified to be a member though no question of disqualification is involved. The qualifications are stated in Article 103(1) just as disqualifications are stated in Article 103(2). Why the decision of the question as to whether a person is qualified to be a member was not to be referred to the Election Commissioner while the question as to whether a member was disqualified was to be .so referred is a matter on which there can only be a conjecture. While I accept that the matter can be referred to the Election Commissioner by the Speaker I do not think this would by itself take away the jurisdiction of the Courts. Article 104(2) is consistent with the decision of the Election Commissioner being only a summary one which is subject to any decision by a Civil Court. There is no procedure provided, at all as to how the matter is to be referred to the Election Commissioner, whether there is to be a hearing before him and evidence can be led, and who are the parties entitled to be heard. Can the Speaker lead evidence? Are the members of the Assembly entitled to lead: evidence or to be heard? Is the Government as such entitled to be represented? Has the electorate whom the member concerned represents a right to be heard? Who can move the Speaker for a reference? Is the Speaker bound to refer the question? There is no provision at all with respect to any of these matters. The Election Commissioner is not a Court and he may be an officer who is not at all qualified for acting as a judicial tribunal. He may be entirely ignorant of law and procedure. No appeal lies against his order. It is difficult to hold that the right of a person to be a member of the Assembly which is obviously a very important right would, depend wholly and entirely on a summary decision given by the Election Commissioner, a person who may not be conversant with law or procedure and who may have no experienced at all of determination of facts. Suppose the Speaker refrains to refer the question. Will there be in that case no remedy at all although the person concerned obviously held an office of profit? At the same time there does not appear any reason why the question as to whether a person was qualified to be a member should go to a Civil Court, but the question as to whether a person was disqualified should not go to a Civil Court. The considerations stated above lead me to the conclusion that the jurisdiction of the Election Commissioner was created in order to secure in a summary fashion the decision of the question whether a person has the right to vote in the Assembly and that this summary decision was always subject to the existing jurisdiction of the Courts. If there was no provision for such summary decision the Speaker would have had to decide himself whether a person had or had not the right to vote when he offered his vote in the Assembly and this decision would be subject to the decision of the Civil Court. For reasons best known to himself the draftsman of the Constitution has handed over this function to the Election Commissioner, but his decision remains subject to the jurisdiction of the Civil Court apart from the jurisdiction which the High Court has under Article

98. I come now to the objection based on Article

133. I think Articles 131, 132, 133 and 134 have to be read together and the power to make laws referred to in Article 133 is the power to make laws provided for in Articles 131 and

132. The heading of the Part VI, which begins with Article 131 is: "Relations between the Centre and the Provinces." Articles 131 to 134 provide for the apportionment of the legislative power as between the Pro vinces and the Centre. According to Article 131 the Central Legislature has power to make laws with respect to the items in the Third Schedule. Article 132 provides that the Provincial Legislature has power to make laws with respect to matters other than those mentioned in the Third Schedule. Article 133 lays down that the responsibility of deciding whether a law is within its power is that of the Legislature itself, and the validity of a law is not to be called in question on the ground that the Legislature had no power to make that law. To me it appears that Article 133 was intended only to prevent an objection on the ground that an exercise of legislative power was not in accord with Article 131 of Article

132. The intention of the framer of the Constitution was that the question as to whether a matter was within the Third Schedule or outside it should not be agitated in the Courts and should be left to the Legislature itself. Had there been no apportionment of legislative functions between the Centre and the Provinces, i.e., if there was only one Legislature in Pakistan I believe Article 133 would not have been put in at all. The words "power to make law" used in Article 133 have reference to the power to make laws in Articles 131 and 132 and have the same connotation in Article 133 as they have in Articles 131 and

132. As I have already said these Articles are to be read together. So construed Article 133 will only bar an enquiry into the question whether a matter was within the Third Schedule or outside it or whether the impugned legislation was inconsistent with Article 131 or

132. All other questions will remain within the jurisdiction of the Courts. Article 134 it may be pointed out had become necessary because both Legislatures may legislate on the same subject and there has to be some forum for a decision of the question as to which law is to prevail. I am of the opinion that the words used in Article 133(2), power to make law", although ordinarily capable of reffering to a constitutional amendment should not in Article 133 be regarded as including an amendment of the Constitution. In Articles 131 and 133 the powers of the two Legislatures to make laws are stated. This power to make law does not at all include a power the Constitution. The Central Legislature has power to make laws with respect to matters in the Third Schedule. Amendment of the Constitution is not a matter appearing in the Third Schedule and it is not, therefore, in the words of Article 131, (and I say, therefore, in the words of Article 133) a matter with respect to which the Central Legislature has the power to make law. Even ordinarily when in a particular document we are referring to the Constitution as well as to other laws the word "law" would have reference not to the Constitution but to other laws. In the present Constitution a clear distinction between making of law and amendment of the Constitution has been maintained. The amendment of the Constitution appears in a separate part of the Constitution, i.e. in Articles 208 to

210. There is a distinct, procedure provided for amendment of the Constitution and the expression "making law" is not used with respect to such amendment either at the place where the amendment is provided for or, at any other place. The making of law begins after the Constitution comes into force. Article 224 empowers the President to pass an order even before the commencement of the Constitution. I do not think it is possible to refer to the power of the President in Article 224 as the making of a law having regard to the use of that expression in the Constitution. I may also point out that not only could the power under Article 224 have been exercised before the commence ment of the Constitution but even an attack on the validity of its expression may have been made in a Court of law before the commencement of the Constitution. If in that case Article 133 could not be a bar to the jurisdiction of the Court for it came into force on the commencement of the Constitution, why should the fact that the exercise of this power is being challenged after the commencement of the Constitution make any difference? A question arose during argument as to what exactly was meant by saying that the responsibility of deciding whether the Legislature has the power to make a particular law is that of a Legislature itself. Was it the intention that after a law had been promulgated by a Legislature, the Legislature should pronounce upon its validity or invalidity itself? I do not think that was the intention of this Article. The intention simply was that it was a matter for the Legislature itself when enacting a particular law to consider whether or not such law was within its jurisdiction. No procedure has been provided for an objection to a Legislature for a pronouncement as to the validity of a particular law enacted by itself There is no provision that by such a pronouncement the law will become invalid At the same time it may be pointed out that if a Legislature .be empowered to pronounce upon the validity of law already enacted there may be successive conflicting decisions by the Legislature depending upon the votes that are cast one way or the other. If it be said that the first decision will bar subsequent ones, then it is to be kept in mind that the. Legislature which in the first instance enacted the law decided by implication that in its opinion the law was valid and that should bar all further pronouncement on the question. Also it will not be correct to give to the same Legislature a power at any subsequent period of invalidating by a bare majority a law, which may have been passed unanimously at the time it was enacted. . In any case there being no provision to the effect that a pronouncement by the Legislature as to its invalidity will render a law invalid, the pronouncement can in law have no effect. I will now take up the question' as to whether the impugned Order is within Article 224 (3). This provision runs: ‑ "224. - - - - - - - - - - (3) At any time before the commencing day or before the expiration of three months after the commencing day, the President may, for the purpose of removing any difficulties that may arise in bringing this Constitution, or any provision of this Constitution, into operation (whether in respect of the elections referred to in clause (2) of this Article or in any other respect) direct, by Order, that the provisions of this Constitu tion shall, during such adaptations, whether by way of modifi cation, addition or omission, as he may deem to be necessary or expedient." The President can promulgate an order under this provision) for the purpose of removing any difficulties that may arise in bringing the provisions of the Constitution into operation. Ever difficulty that arises does not attract this provision. It is only a difficulty, which arises in bringing .the Constitution into operation that does so. The question to ask, therefore, is: in bringing which provision of the Constitution into operation was there a difficulty, which was to be removed by the impugned Order? The Preamble to the impugned Order has stated the provision and the difficulty. The Preamble states that Article 33 of the Consti tution "requires a Council of Ministers to assist the President in the performance of his function" and Article 82 "requires a Council of Ministers to assist the Governor" and "it is necessary and expedient that some members of the Assembly be appointed as Ministers" to assist the President and Governor, and on account of Article 104 a difficulty arises in the formation of the Council of Ministers. Articles 33 and 82 use the word "may" but assuming that it was necessary to appoint a Council of Ministers' these Articles do not make it incumbent upon the President or the Governor to appoint Ministers from amongst the members of the Assembly. It may be "necessary and expedient" on account of political consi deration to appoint Ministers from amongst the members of the Assembly but political considerations are not within the purview of Article 224(3). Had there been a provision to the effect that some of the Ministers must be members of the Assembly and if every member of the Assembly had refused to become a Minister it could have been urged that there was a difficulty involved in the operation of the Constitution. But here there is no difficulty in the operation of the Constitution. The alleged difficulty lies in the fact that those who are appointed as Ministers insist that they should retain their seats in the Assembly. That is the assumption of the Preamble though it is still to be seen whether the Ministers who are affected will rather lose their seats in the Assembly than their office as Minister. The fact that a Minister who is appoint ed insists that a particular provision in the Constitution should be of changed does not amount to a difficulty in the operation of a of Constitution. Logically if the opposition of such Ministers to the provisions relating to the vacation of their seats is sufficient for amendment of that provision, their objection to other parts of the Constitution should also be a similar difficulty. They might, to take an extreme case, have insisted that they should have power to remove any of the sitting member of the Assembly and to nomi nate any person as member of the Assembly. They might have insisted upon drastic changes in the Constitution. Obviously this is not what was contemplated by Article 224(3). When we further examine Article 224(3) it becomes apparent that this provision is one of those ordinary clauses inserted in a Constitution to meet unforeseen situations which arise out of the clash of the Constitution with existing laws or some other formal difficulties which arise not on account of the inclinations or objections of persons, but by the fact that the wording of the Constitution becomes on account of some circumstance incapable of being strictly complied; with. This is apparent from the fact that the President can only snake any adaptation and not an amendment. Between amendment and adaptation there is a clear distinction and this distinction had already been the subject of discussion in judgments of Courts before this Constitution was framed. The framer of the Constitution is presumed to have been well aware of the distinction, which had been accepted by the Courts. When he used the word "adaptation", therefore, and omitted the word "amendment" in Article 224 (3) there can be little doubt that he did so deliberately. The Legislature is by pre sumption an ideal person and has full knowledge of the state of case law, at least the important part of it. An argument was put forward that the President is a judge of the difficulty and that the only test for the existence of a difficulty is his subjective satisfaction that difficulty exists. The answer to this argument is that it is for the Court to determine what kind of difficulty is contemplated by Article 224(3). The President cannot extend the scope of the difficulty contemplated by Article 224(3) The interpretation of "difficulty" is the function of the Court. I am prepared to concede that if the difficulty appearing in Article 224(3) were of a kind the existence of which could be a matter of opinion, then while the interpretation of "difficulty" would be the function of the Court, the actual existence of the difficulty would be a matter for the decision of the President. The difficulty, however, which is contemplated by Article 224(3) is not such that with respect to its existence there may be two opinions. Whether it is possible or not formally to comply with a provision of the Constitution is a matter, which does not admit of dispute. I agree that this appeal be dismissed. HAMOODUR RAHMAN, J.‑This appeal which has been certi fied by the High Court of East Pakistan under Article 58 (2) (a) of the present Constitution as involving a substantial question of law as to the interpretation of the Constitution, is directed against the judgment and order of a Special Bench of three Judges of the said High Court declaring that the appellants herein have ceased to be members of the National Assembly from the date on which they entered upon their respective offices as Ministers. These appellants, who were duly elected members of the National Assembly, were on the 13th of June 1962, sworn‑in also as members of the President's Council of Ministers, but continued, notwithstanding the provisions of clause (2) of Article 25 and clause (1) of Article 104 of the Constitution, to take part in and vote in the proceedings of the National Assembly as members thereof claiming to be entitled to do so by virtue of the modifications purported to be made in the Constitution by the Removal of Difficulties (Appointment of Ministers) Order No. 34 of 1962, in exercise of the powers conferred upon the President of Pakistan by clause (3) of Article 224 of the Constitution. In these circumstances the respondent herein, who is another elected member of the National Assembly, on the 11th of March 1963, moved the High Court of East Pakistan under clause (2) (b) (ii) of Article 98 of the Constitution for a writ in the nature of a quo warranto calling upon the appellants to show under what authority of law they still claimed to be members of the National Assembly. The main contention of the respondent before the High Court was that the modifications sought to be introduced into the Constitution by the Removal of Difficulties (Appointment of Ministers) Order, 1962, were ultra vires the powers granted by Article 224(3) of the Constitution and, as such, notwithstanding the provisions of the said Order, the appellants had, under Article 104 (1) of the Constitution, ceased to be members of the National Assembly from the day on which they entered upon their respective offices as Ministers. It was argued in the High Court on behalf of the respondent that Article 224(3) did not give to the President any absolute power or unfettered discretion to make any and every kind of change in the Constitution. It was contended that the power given by this clause contained three‑fold limitations, namely, as to (1) the period of time during which it could be exercised, (2) the subject‑matter in respect of which or the purpose for which it could be exercised and (3) the manner and the method in which it could be exercised. The President could, it was argued, act only within the scope of those limitations and any order made by him, which transgressed those limits must necessarily be held to be ultra vires the powers given to him under this clause. The appellants contested this application in the High Court and the learned Attorney‑General appearing on their behalf maintained that the order passed by the President was an order passed in the lawful exercise of his powers, for, under Article 224(3) he was the sole judge of the difficulties and it was not for the Courts to enquire as to whether any difficulty did in fact exist or as to what was the nature of that difficulty. It was further main tained that, in any event, the Courts had no jurisdiction to ques tion the competency of the President in making the said Order for at least three reasons, namely, (1) that Article 133 of the Constitution expressly prohibited the validity of a law being called into question on the ground that the Legislature by which it was made had no power to make the law, (2) that clause (2) of Article 104 of the Constitution by implication took away the jurisdiction of the High Court to enquire into the question as to whether a member of the National Assembly had after his election become disqualified from being such a member, for, it expressly vested this jurisdiction in the Chief Election Commissioner upon whose decision only the member was to cease to be a member, and (3) that in any event even if clause (2) of Article 104 did not operate to exclude the jurisdiction of the Courts in this behalf, it was at least sufficient "other adequate remedy" within the mean ing of clause (2) of Article 98, which disentitled the appellants to any relief under the said clause. The High Court repelled each one of the arguments advanced against its jurisdiction to enquire into the questions raised before it as also came to the conclusion that Article 224 did not give any unfettered power to the President to amend the Constitution. Hence it was held that the Removal of Difficulties (Appointment of Ministers) Order, 1962, was of no legal effect and did not operate to give to the appellants any right to continue to remain as members of the National Assembly after their appointment to the President's Council of Ministers. The appellants now seek to challenge the correctness of the decision of the High Court upon substantially the same grounds that were urged in the High Court. In my view, the two main questions that arise for considera tion in this case are: ‑ (1) whether the President of Pakistan was competent to make the modifications sought to be made in the Constitution by the Removal of Difficulties (Appointment of Ministers) Order, 1962, and (2) was the High Court, in any event, debarred from questioning the validity of the said Order. There is no dispute in this case that the membership of an Assembly is a "public office" within the definition of that term given in Article 242, nor does the learned Attorney‑Genital dispute the correctness of the principles governing the interpretation of a constitutional document propounded by the High Court. The High Court has, of course, in its elaborate and erudite discourse shown that these principles have also considerable weight of judicial pronouncements of Courts in this country as well as in several foreign countries‑behind them but it has escaped its notice that this Court also enunciated some principles of con struction of a constitutional document when dealing with the President's Special Reference No. 1 of 1957 ((1957) 2 P S C R .21=P L D 1957 S C (Pak.) 219). There too this Court was called upon to determine the scope of somewhat similar powers given to the President to make adaptations to the late Constitution for the removal of difficulties by Article 234 thereof and in that connection observed: "- - - - -the fundamental principle of constitutional construction has always been to give effect to the intent of the framers of the organic law and of the people adopting it. As has been aptly observed by in Ohio Judge in H. M. Co. v. Miller (92 Ohio. St. 115) the pole‑star in the construction of a Constitution is the intention of its maker and adopters. Another elementary rule of construction of constitutional instruments is that effect should be given to every part and every word of the Constitution. Hence, as a general rule, the Courts should avoid a construction which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory. The next rule in construing a constitutional provision is that it is the duty of the Courts to have recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any particular provision. The best mode of ascertaining the meaning affixed to any word or sentence by a deliberative body is by comparing it with the words and sentences with which it stands connected and a constitutional provision of a phrase in a constitutional provision must be read in connection with the context. Nosciture a sociis is the rule of construction applied to all written instruments. Therefore, particular phrases of a Constitution must be construed with regard to the remainder of the instrument and to the express intent of the constitutional convention in adopting it. And the last rule which needs statement for the purposes of this case is that if there be any apparent repugnancy between different provisions, the Court should harmonize them if possible. The rules of construction of constitutional law require that two sections be so construed, if possible, as not to create a repugnancy, but that both be allowed to stand, and that effect be given to each." In the present case the learned Attorney‑General does not wish to assail these principles but he contends that in interpreting a constitutional document not only must the Courts have regard to the words used in it but should also approach the task, as observed by this Court in the case of Pakistan v. Ahmad Saeed Kirmani ((1958) 1 P S C R 388=P L D 1958 S C (Pak.) 397) "with a full comprehension of all the phases of history which form the background of that Constitution". He urges, therefore, that the fact that in this case the Constitution was given to the country by the President himself should not have been overlooked in considering the scope and the ambit of the powers given to him by clause (3) of Article 224. 1t is no doubt true that the Constitution was enacted by the President, as stated in Preamble, in exercise of the Mandate given to him by the people of Pakistan. But once the Constitution had been enacted, he became under Article 226 (1) read with Article 227 (1) the first President of Pakistan under the Constitution, and, after he had taken the oath of office under the Constitution to act faithfully in accordance with the Constitution and to preserve, protect and defend the Constitution, his powers became circumscribed by the provisions of the Constitution and he could do no more than what the Constitution empowered him to do. "A Constitution", says Cooley in his Treatise on Constitutional Limitations is "the fundamental law of a State, containing the principles upon which the Government is founded, regulating the division of the sovereign powers, and directing to what persons each of these powers is to be confined, and the manner in which it is to be exercised." The fundamental principle underlying a written Constitution is that it not only specifies the persons or authorities in whom the sovereign powers of the State are to be vested but also lays down fundamental rules for the selection or appointment of such persons or authorities and above all fixes the limits of the exercise of those powers. Thus the written Constitution is the source from which all governmental power emanates and it defines its scope and ambit so that each functionary should act within his respective sphere. No power can, therefore, be claimed by any functionary, which is not to be found within the four corners of the Constitution nor can anyone transgress the limits therein specified. In this view of the matter it needs to be examined as to what was the nature and the scope of the power given to the President by clause (3) of Article

224. This clause reads as follows: ‑ "At any time before the commencing day or before the expiration of three months after the commencing day, the President may, for the purpose of removing any difficulties that may arise in bringing this Constitution, or any provision of this Constitution, into operation (whether in respect of the elections referred to in clause (2) of this Article or in any other respect) direct, by order, that the provisions of this Constitution shall during such period as is specified in the Order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient." It will be observed that this clause is very carefully worded and leaves no room for doubt as to the period during which, the circumstances in which, and the manner in which, the power thereby created can be exercised. Thus it starts by saying that the President may exercise this power at any time before the commencing day or before the expiration of three months after the commencing day and only for "the purpose of removing any difficulties that may arise in bringing this Constitution, or any provision of this Constitution into operation". Then it concludes by saying that this may be done by Order to the effect that the provisions of this Constitution shall, during such period as is specified therein, "have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient." The intent of this clause was, in my view to give to the President the power of removing a difficulty in bringing the Constitution, or any of its provisions, into operation and that too only by way of an adaptation. Can it, therefore, be said as urged by the learned Attorney‑General, that this power extended even to the extent of enabling the President to t radically alter the system of government itself which the Constitution specially designed to set up? This clause does not contain within itself any such indication nor have I been able to discover anything in any other part of the Constitution, which would lend support to this contention. The difficulty contemplated by this clause is again a difficulty limited to the implementation of the Constitution and not any and every kind of difficulty. It could, in my view, have no possible relation to a difficulty which arose de hors the Constitution, as for example, a political difficulty which necessitated an alteration in the basic structure of Government as originally contemplated by the Constitution. The further limitation inherent in the terms of this clause appears to be that the difficulty must be such that could be removed by way of an adaptation, which can, under no canon of construction, be held to extend to the making of even radical amendments or alterations in the main fabric of the Constitution. It may be pointed out in this connection that even in the late Constitution there was a similar power given by Article 234 to the President to direct by Order that the provisions of the said Constitution shall, during such periods as may be specified in the Order, have effect, "subject to such adaptation, whether by way of modification, addition or omission, as he may deem to be necessary or expedient." This Court held while answering Special Reference No. 1 of 1957 that under that Article the power could not be invoked to enable the President to make provisions empowering the Governor of a Province to dissolve an interim Provincial Assembly functioning under Article 225 of the said Constitution before the setting up of a Provincial Assembly for the Province by election under the provisions of the said Constitution. The power given by the said Article 234 was in fact wider than the power given by clause (3) of Article 224 of the Constitution, for the nature of the difficulties there contemplated was not limited in the same manner as in the present Constitution. The power there given was "for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935", and other amending or supplementing measures. Never theless, this Court held in the above‑mentioned case that the said Article 234 did not give to the President "the power to destroy, though for a temporary period, the very basis of the new Constitution". The contention that the President was the sole judge of the difficulty which was by its very nature incapable of any precise definition appears to me to be untenable in the context of the K language used in Article 224, The comparison between the powers of the Governor‑General under the Government of India Act, 1935, during an emergency and the powers of the President under Article 224 does not seem to be apt. The parallel of that emergency power is to be found in Article 30 of our Constitution where it is provided that "if the President is satisfied that a grave emergency exists" he may legislate in a certain manner but even here a check has been maintained by requiring that laws made even during an emergency must be laid before the National Assembly and shall come to an end when the Proclamation of emergency is revoked if not earlier approved by the National Assembly. The principle laid down in the case of Emperor v. Binoarilal Sarma (AIR 1945PC45) may be invoked to support the contention that the President should be the sole judge of the emergency but that principle would not in my view, extend, to making the "difficulty" in Article 224 also incapable of definition. Strictly speaking, no question here arises of subjective or objective satisfaction, for, the difficulty is a difficulty, which must be felt by the President and he alone must judge whether the difficulty does in fact exist. It is not for us to question his wisdom in that regard but it is our constitutional duty to see that his acts fall within the ambit of the powers given to him by the Constitution and, if the nature of the difficulty is specified therein, to see that the difficulty claimed to have been felt is of that nature and not any and every kind of difficulty. It would be also wrong, in my view, to approach the con struction of clause (3) of Article 224 with the notion that the power was being given by this clause to a supra‑constitutional authority. This is a power given under the Constitution to a President appointed in terms of the Constitutions and is to be exercised subject to its terms. The power, therefore, was clearly a sub‑constitutional power, the validity of which under the Constitution, if open to examination, would depend upon whether it had been exercised in accordance with the provisions of the Constitution. The provision in this Article to the effect that the power may be exercised even "before the commencing day" does not, in my view, make any material difference, because, this again can be done only by reason of the express power given under the terms of the Article. The source of the power, therefore, is still the Constitution and not anything outside it. Having come to the view that Article 224 (3) vested the President with a power to be exercised under the Constitution only in certain circumstances for a limited period and in a parti cular manner, the question that next arises for consideration is whether he acted within the scope of his constitutional powers in making the Removal of Difficulties (Appointment of Ministers) Order, 1962. The learned Attorney‑General has, of course, argues that the Order was made in the valid exercise of his powers and had relied for that purpose on Article 33 of the Constitution, which empowers the President to appoint persons to be members of his Council of Ministers from amongst persons qualified to be elected as members of the National Assembly. This Article merely says that the President may appoint such persons to assist him in the performance of his functions. It does not oblige him to do so, for, nowhere has the Constitution provided that there shall be a Council of Ministers, as was done, in the late Constitution by Article 37 wherein it was provided that there shall be a Cabinet of Ministers with the Prime Minister at its head, to aid and advise the President in the exercise of his functions. The use of the word "may", therefore, in Article 33 of the present Constitution has no compelling force behind it. Indeed the Constitution, where it has sought to impose a mandatory duty upon the President, has consistently used the word "shall" as, for instance, in Article 36 where it is said that the President shall appoint a person to be Attorney‑General for Pakistan. Similarly Article 147 provides that there shall be a Chief Election Commissioner who shall be appointed by the President, and Article 66 requires that there shall be a Governor of each Province who shall be appointed by the President. In this context the use of the word "may" in Articles 33 and 82, appear to me to indicate that it is not incumbent either upon the President or the Governor of a Province to have a Council of Ministers or to appoint any one to such a Council. Again, even if it is assumed that the last two mentioned Articles impliedly enjoined the setting up of such Council of Ministers, they only enjoined that persons sought to be appointed to such Council of Ministers should be persons qualified to be elected as members of the National or Provincial Assembly but not persons who had in fact, been elected as such members. Indeed, an examination of the various provi sions of the Constitution leads to the irresistible conclusion that the manifest intention of the framers of the Constitution was that Ministers should not be elected members of either the National Assembly or the Provincial Assembly. Thus Articles 25 and 75 clearly provide that a Minister, although he shall have the right to speak in, or otherwise take part in, the proceedings of the Assembly, shall not be entitled to vote and if he happens to be an elected member under Article 104(1) he must cease to be a member of the appropriate Assembly on and from the day on which he enters upon his office as such Minister. The main feature of the Constitution, therefore, is that a Minister should not be a member of the House, he should have no right to vote therein, nor should his tenure of office be dependent upon the support of the majority of the members of the Assembly no should he be responsible to the Assembly. This is an essential characteristic of a Presidential form of Government and Mr. Brohi appearing on behalf of the respondent has called it the main fabric" of the system of government sought to be set up by the present Constitution. An alteration of this "main fabric", therefore, so as to destroy it altogether cannot, in my view, be called an adaptation of the Constitution for the purpose of implementing it. I am, therefore, of the view that a difficulty, which necessitated the destruction of the essential feature of a Constitution as origi nally designed by its framers, can have no possible relation to the implementation of those essential features. The President's Order No. 34 of 1962, therefore, was, in my view, beyond the scope of the powers given to him under Article 224 (3) of the Constitution. It is also not without significance that one of the Preambles to the said Order itself indicates that the difficulty had arisen by reason of the unwillingness on the part of certain elected members of the Assembly to accept office as Ministers, if they were thereupon to cease to be members of the Assembly, and it is for the removal of this difficulty that the Order in ques tion was sought to be made. This was not a difficulty within the contemplation of the Constitution, for, it clearly visualised and provided for a state of affairs in which a member of the Council of Ministers was not to be an elected member of the House and if appointed amongst such elected members he was immediately to cease to be a member from the day on which he entered upon his office as Minister. For these reasons I am unable to agree that the provision sought to be made by this Order to enable elected members of the Assemblies to retain their seats even after their appointments as Ministers was within the scope of Article 224(3) of the Constitution. The next question that arises for consideration is that even if such an Order was not within the scope of the provisions of Article 224(3), could the High Court call in question its validity? Learned Attorney‑General has invited our attention to Article 130 which provides that "no Court shall have any jurisdiction that is not conferred on it by this Constitution or by or under the law", and from this he has sought to argue that the Courts derive jurisdiction only when such jurisdiction has been expressly con ferred upon them by the Constitution. They cannot, it is urged, claim to have jurisdiction where the Constitution itself has expressly barred an enquiry into the validity of a law, as in Article 133(2), which vests the Legislature itself with the respon sibility of deciding whether it has power under the Constitution to make a law or not and prohibits one from calling into question the validity of a law on the ground that the Legislature by which it was made had no power to make it. From these provisions he infers that the Courts have no power to examine the validity of President's Order No. 34 of 1962 on the ground that the President had no power to make it. It is no doubt true that the Courts are not above the Con stitution and the source of their jurisdiction as well is the Consti tution itself. I do not seek to claim for the Courts any higher jurisdiction, but I would venture to point out that it is a cardinal principle that in every system of Government operating under a written Constitution the function of finally determining its meaning must be located in some body or authority and the organ of Government which is normally considered most com petent to exercise this function is the Judiciary. This is, of course, subject to the provisions of the Constitution itself, which may well provide otherwise. In such event, however, the contrary provision must be either express or one, which can be derived as a necessary implication of the provisions of the Constitution. But such a departure is not to be readily inferred, for, the con sistent rule of construction adopted by all Courts is that pro vision seeking to oust the jurisdiction of superior Courts are to be construed strictly with a pronounced leaning against ouster. The question then is as to whether the present Constitution has made a departure from this general rule. Examining the pro visions of the Constitution as a whole I find no escape from the conclusion that the framers of the Constitution accepted the principle that the interpretation of the Constitution would be the task of the Judiciary, if no provision to the contrary was made in the Constitution itself. Indeed, in Article 58 by pro viding that an appeal shall lie to the Supreme Court from a judgment, decree, order or sentence of a High Court as of right where the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution, the framers of the Constitution appear, in no uncertain manner, to have indicated their mind. This manifestly adopts the prin ciple that the interpretation of the Constitution should be the function of the Judiciary, and then proceeds, where it is felt necessary, to make specific provisions for excluding that juris diction but that too only with regard to certain specified matters. Thus Article 6(2) ousts the jurisdiction of the Courts to question the validity of a law on the ground that the law disregards, violates or is otherwise not in accordance with the principles of law‑making. Article 8(2) prevents the calling into question of a law on the ground of its repugnancy with any principle of Policy. Then comes Article 133, which precludes the examination of the validity of a law on the ground of the competency of the Legislature, which purported to make the impugned law. The scheme of ouster of jurisdiction, therefore, under the present Constitution, is only limited to the grounds specified in these Articles, and there is no general ouster of the jurisdiction of the Courts from examining the constitutionality of a law on any other ground. An examination of some of the other provisions of the Constitution also tends to confirm this view. Thus Article 134 provides that in the case of repugnancy between a Central law and a Provincial law, the latter shall be invalid to the extent of the repugnancy but does not say as to who is to declare it to be so invalid. Similarly, Article 137 exempts the Governments from taxation in respect of their properties and income and Article 142 prohibits the making of any law restricting inter‑Provincial trad ing or the imposition of discriminatory taxes but these again do not provide any machinery for the safeguarding of these rights. Does that mean that nobody exists to enforce those provisions? I think not, for, to my mind, the makers of that Constitution did not think it necessary to make any such provision, as in their scheme of things of necessity, these were to be the function of the Judiciary. There is yet another reason why I am unable to accept the con tention that clause (2) of Article 133 is at all attracted to the case of the President's Order No. 34 of 1962. It will be observed that this appears in Part VI of the Constitution, which is under the heading "Relations between the Centre and the Provinces" and it purports to define what are the exclusive fields of legislation of the Centre and the Province respectively and, as such, Article 133 is, in my view, confined to the "Legislatures" referred to in this Chapter, and not to any and every law creating agency. In exer cising powers under Article 224(3) the President does not, in my view, act as a Legislature under the Constitution at all. He exercises a power, which is distinct and different from the legislative functions contemplated under the Constitution. The legislative powers of the President have been defined in Articles 29 and 30 of the Constitution. Similarly the legislative powers of a Governor have been defined in Article

79. The powers under Article 224 do not relate to the exercise of any of such legislative functions. This is a totally different power given to a sub‑constitutional authority to make adaptations to the Constitution itself. This is not legislation within the meaning of the Constitution. Article 133, therefore, does not have the effect claimed by the learned Attorney General. It is not possible to agree with the learned Attorney‑General that any measure, which purports to create a law must be a legislative measure within the meaning of Article

133. Article 133 is confined to laws made in the exercise of legislative functions given under the Constitution and does not extend to protect other forms of law. Reading the Constitution as a whole the intention seems to be clear that Article 133 is confined to questions relating to the competency of the Central or the Provincial Legislature or the President or the Governor to make laws with respect to matters in the Legislative List set out in the Third Schedule to the Constitution and does not extend beyond those matters. The contention that the power given to the High Court under Article 98 is impliedly excluded by clause (2) of Article 104 is equally without any substance. Clause (2), no doubt, refers to the disqualifications mentioned in Article 103 but it does not control clause (1) of Article 104, for, it is difficult to appreciate as to what kind of enquiry could have been in the contemplation of the framers of Constitution in a case where an elected member is appointed as a Minister or as a Governor or to any public office. The fact that his appointment to any such office would be so patently obvious that not only would no enquiry be necessary to determine that question but it would also be absurd to set up a machinery for holding an enquiry into such a patent fact is a valid consideration for holding that no such enquiry was intended and I am not prepared to impute to the framers of the Constitution such an absurd intention. It is for this reason that clause (1) of Article 104 contemplates an automatic cesser and not a vacation of the seat in the Assembly which is to be dependent upon any finding of the Chief Election Commissioner. In my view of the matter this Article contemplates no ouster of the jurisdiction of the superior Courts. The learned Attorney‑General himself was compelled to concede that no finality has been given to the decision of the Chief Election Commissioner and his decision was not immune from challenge under Article

98. Even the Speaker, he admitted, could be directed by the Courts to make a reference to the Chief Election Commissioner. Where then is the ouster by necessary implication? The other argument that Article 104(2) is at least an "other adequate remedy" within the meaning of Article 98, on the ground of which the relief claimed for should have been refused by the High Court, does not also appear to me to be tenable. It has to be noticed that under Article 98 it is for the High Court to be satisfied that the remedy available was an adequate remedy. In the present case, the High Court has, of course, held that clause (2) of Article 104 was not at all attracted. But f would go further and say that even if it was attracted, it would not be such an adequate remedy as to exclude the operation of Article

98. Article 98 gives the right to any citizen to approach the High Court, whereas under Article 104(2) the Chief Election Commis sioner is to be set into motion by a reference from the Speaker, who may either act suo motu or upon a motion in the House by a member. In the present case, there is no dispute that the Speaker did not make any reference. Indeed, Mr. Brohi has drawn our attention to the official report of the National Assembly Debates of the 19th of June 1962, to show that an effort was made on that date by some members to move a motion for adjournment to discuss the President's Order No. 34 of 1962, under Article 224 (3) enabling members of the National Assembly and Provincial Assemblies to be appointed as members of the Council of Ministers without loss of their seats in the Assemblies concerned, but on an objection from the then Law Minister the motion was disallow ed. There the matter rested until the High Court of East Pakistan was moved. Again, neither the Chief Election Commissioner nor the Speaker could have the jurisdiction to question the constitutionality of the impugned Order. They would have been bound to give effect to it. The proceedings contemplated under clause (2) of Article 104 cannot, therefore, in any sense of the term, be an adequate alternative remedy so as to bar the application of Article

98. Lastly, it remains to notice the argument that the High Court should have dismissed the application on the ground of laches, since it was being made nearly nine months after the appellants entered upon their respective offices as Ministers. If the Ministers were holding office without any lawful authority, their continu ance in office was in the nature of a continuing wrong giving rise to a cause of action de die in diem, and, therefore, there could be no question of any laches. In any event, on questions relating to the constitutionality of actions the ground of laches cannot prevail, for there, can be no estoppel against the Constitution and an act which is unconstitutional cannot become constitutional by lapse of time, nor can it vest anyone with any kind of legal right to benefit from such an unconstitutional act. For these reasons I would dismiss this appeal, but leave the parties to bear their own costs. We dismiss this appeal but leave the parties to bear their own costs. A. H. Appeal dismissed.