P L D 1956 (W (PLP)

S. A. RAHMAN, C. J.--‑On the 20th of May 1956, the Interim Assembly of West Pakistan met in the Assembly Building, under the chairmanship of Mr. Mumtaz Hasan Qizilbash who had been appointed to discharge the functions of the temporary Speaker by the Governor. The main business before the Assembly was the election of the Speaker. Two names were proposed for the office, one that of Mir Ghulam Ali Talpur from the Muslim League Party, and the other that of Chaudhary Fazal Ilahi from the Republican Party. There was a division and ultimately it was found that there was a tie between the two candidates. The chairman by his casting vote declared Chaudhary Fazal Ilahi to be elected Speaker of the Assembly. Mr. Ahmad Saeed Kirmani, an M. L. A. of Lahore, has presented this petition, praying that a writ of qua warranto, mandamus or any other appropriate writ, order or direction be issued, declaring the alleged election of the Speaker to be null and void, directing Chaudhary Fazal Ilahi (respondent 1) to prove his lawful authority to function as Speaker of the West Pakistan Legislative Assembly and ordering him as well as the Secretary of the Assembly (respondent 2) that they should enable Mir Muhammad Bakhsh Talpur and Mr. Dharamdas Motumal Varyani to cast their votes, according to their free will, for the office of Speaker. Mr. Mumtaz Hasan Qizilbash was impleaded as respondent (3) to the petition. It was alleged, inter alia, that the two abovesaid members of the Assembly were unable to freely exercise their right to vote for the candidate of their choice, inasmuch as Mr. Muhammad Bakhsh Talpur was detained by some members of the Republican Party and not G allowed to vote at all, whereas Mr. Dharamdas Vary ai wasp subjected to coercion and his vote was recorded against his will for Chaudhary Fazal Ilahi. It was further asserted that on complaint being made to respondent No. 3 who was acting as the chairman of the meeting, he promised to make an inquiry and to right the wrong, if any, committed, but that later he gave a mala fide decision in favour of the. Republican Party. The right of Mr. Mumtaz Hasan Qizilbash to act as chairman of the meeting was also challenged and the order of the Governor in that connection was assailed as illegal. In the end, it was urged that the chairman's casting vote for Chaudhary Fazal Ilahi was arbitrary and unconstitutional. It was, consequently, submitted that the proceedings in the Assembly were not really "Proceedings" in the eye of law. The petition was supported by duly attested affidavits of Mr. Dharamdas Motumal Varyani, Mr. Sardar Bahadur Khan, Mr. M. A. Khuhro, Mir Muhammad Bakhsh Talpur, Rana Abdul Aziz alias Gul Muhammad Noon and Mr. Ahmad Saeed Kirmani, M. L. As. Notices were issued to the respondents and counter affidavits were filed on behalf of them, by Qazi Fazlullah, Minister, West Pakistan Government, Mir Ali Ahmad Talpur, another Minister of the West Pakistan Government, Mr. Amir Abdullah, Chaudhary Ghulam Rasul, Mr. Abdul Hamid and Mr. Nazar Husain Shah, M. L. As., controverting the allegations made by the petitioner. A notice was also issued to, the Attorney‑General of Pakistan as the question of the correct interpretation of Article 89 of the Constitution was involved in this case. The first point raised on behalf of the petitioner is that the Governor of West Pakistan had no power to appoint a chairman to preside over the meeting of the Assembly on the 20th of May 1956. This objection appears to be misconceived in the face of clause (3) of Article 87 of the Constitu tion, which is in the following terms:‑ "While the office of Speaker is vacant, or the Speaker is for any reason unable to perform the duties of his office, those duties shall be performed by the Deputy Speaker, or if the office of Deputy Speaker is also vacant, by such member of the Assembly as the Governor may appoint for the purpose; and during any absence of the Speaker from any sitting of the assembly, the Deputy Speaker, or if he also is absent, such person as may be determined by the rules of procedure of the Assembly, shall act as Speaker." Mr. Nazir Ahmad Khan who appeared for the petitioner, contended that the word "vacant" in this context should bell held to be equivalent to "vacated by an incumbent after his election". He conceded at the same time that the offices off Speaker and Deputy Speaker, when the Assembly first meets after the general elections, could also be described as "vacant". There seems then no reason why the restricted meaning con tended for by learned counsel, should be adopted in this case and an unnecessary casus omissus presumed. In my opinion, the Governor had power under this provision to appoint an Interim Speaker of the Assembly, when it met on the 20th May 1956. Mr. Nazir Ahmad Khan then tried to argue that even if Mr. Mumtaz Hasan Qizilbash was validly appointed to preside over the first meeting of the Assembly, he could not have administered the oaths of office to the members. In the view of the learned counsel there was no provision in the Constitu tion authorising him to do so. This objection too strikes me as without any substance. Article 81 of the Constitution prescribes the necessity of every member of the Provincial Assembly making and subscribing an oath or affirmation, in accordance with the provisions of the Constitution, within a period of six months from the date of the first meeting of the Assembly, after his election. Failure to do so is visited with the penalty of vacation of his seat. Article 215 of the Constitution runs as follows:‑ "A person elected or appointed to any office mentioned in the Second Schedule shall, before entering upon the office, make and subscribe an oath or affirmation in accordance with that Schedule . A reference to the Second Schedule makes it clear that a member .of a National or Provincial Assembly has to be administered an oath by the person presiding, in the following form:‑ "I . . . . . . having been elected a Member of the National Assembly (or Provincial Assembly of . . . . .) do solemnly swear (or affirm) that I will bear true faith and allegiance to Pakistan and that I will faithfully discharge the duties upon which I am about to enter." The duty of administering the oath is laid on the shoulders of the person presiding over the meeting of the Assembly. Articles 81 and 215 have to be read with this part of the Second Schedule, and there can be not the least doubt that on the basis of these provisions, it was not merely within the power of the interim chairman but also his duty to administer the prescribed oath to the members of the Assembly. The objection that the chairman could not give his casting vote D when there was a tie, was not seriously pressed and calls for no comment. The main contest between the parties, has been centred on the correct construction of Article 89 of the Constitution. This Article may be usefully set out in extenso:‑ "89.‑‑(1) The validity of any proceedings in a Provincial Assembly shall not be questioned in any Court. (2) No officer or member of a Provincial Assembly in whom powers are vested for the regulation of procedure, or the conduct of business, or the maintenance of order in the Assembly, shall, in relation to the exercise by him of any of those powers, be subject to the jurisdiction of any Court. (3) No member of a Provincial Assembly, and no person entitled to speak therein, shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in the Assembly or any committee thereof. (4) No person shall be liable to any proceedings in any Court in respect of the publication by or under the authority of a Provincial Assembly of any report, paper, vote or proceedings. (5) Subject to this Article, the Privileges of a Provincial Assembly, the committees and members thereof, and the persons entitled to speak therein may be determined by Act of the Provincial Legislature; but such privileges may not exceed those conferred on the National Assembly, its com mittees and members, and the persons entitled to speak therein". The Article is headed "Privileges etc., of the members of the Provincial Assembly". Apparently it corresponds to sections 71 and 87 of the Government of India Act, 1935, taken together. Section 87 of the old Constitution Act, saves the validity of any proceedings in a Provincial Legislature from being questioned, on the ground of any alleged irregularity of procedure. This specific ground has been omitted from Article 89 of our new Constitution, and the prohibition against the validity of proceedings in a Provincial Assembly being challenged, is now couched in more general terms. At the same time it is significant that whereas section 87 of the Government of India Act, 1935, talked of proceedings in a "Provincial Legislature" (which, by virtue of section 60 of that Act, consisted of the Governor and the Legislative Assembly), Article 89 of the new Constitution refers only to the proceedings in a Provincial "Assembly", to the exclu sion of the Governor. Article 76 is, in terms, similar to section 60 of the old Government of India Act, in so far as it lays down that. a Provincial Legislature shall consist of the Governor and one House to be known as the Provincial Assembly. In view of these departures from the old Constitu tion Act, Mr. Brohi, who appeared for respondents Nos. 1 and 3, argued that the area of immunity of proceedings in the Assembly, under Article 89 of the new Constitution, is wider than that under section 87 of the old Constitution Act, and in one sense it is narrower in so far as it refers to the "Provincial Assembly" and not to the "Legislature" which includes the Assembly and the Governor. Learned counsel thought that this was probably done deliberately, in order to leave scope for a challenge to the vires of the Legislature in passing a particular law, as a Bill passed by the Assembly could only become law after the Governor had assented to it. On the other hand, he suggested that the proceedings in the Assembly were now protected from attack, on any ground. By this learned counsel evidently meant that the proceedings could not be challenged as invalid by a direct attack, for he conceded that in certain circumstances, there may be an indirect challenge to their validity. As an instance he mentioned that if a person had been elected Speaker of the Assembly, in spite of the fact that he was under a personal disability in respect of membership of the Assembly, a writ of quo warranto could issue to him to show by what lawful authority he was occupying his office. Learned council distinguished such a case from one in which the proceedings in the Assembly were the subject of a direct attack, on the basis that here the objection was grounded on the personal disability of the holder of the Speaker's office, apart from the question of formal validity of the proceedings in the Assembly, Mr. Brohi further thought if a member of the assembly, in contravention of the provisions of the Con stitution, defamed a Judge of a High Court during a discussion in the Assembly, this Court would have jurisdiction to commit him for contempt, despite the provisions of clause (3) of Article 89. He, therefore, recognised that Article 89 did not confer a total and absolute immunity on the proceedings of the Provincial Assembly, though he at first expressed his opinion that the bar raised by the Article was complete. The learned Attorney‑General of Pakistan was much more uncompromising in his attitude when considering the proper interpretation of Article 89 of the Constitution. He advanced the proposition that in no circumstances whatever, could this Court have jurisdiction to question the validity of any proceedings in the Provincial Assembly, whether directly or indirectly. He pressed the extreme view that even in cases where, for instance, the Speaker of the Assembly suffered from a personal disability to continue in his office, the Court would be precluded from issuing a writ of quo warranto to him as it would indirectly bring the question of validity of proceedings in the Provincial Assembly under review. As contrasted with Mr. Brohi's position he further joined issue with him on the point whether a member of a Provincial Assembly had an absolute privilege under clause (3) of Article 89 in respect of whatever he might say on the floor of the House even though a specific provision of the Constitution might be contravened by hull. The learned Attorney‑General of Pakistan relied mainly on the principle that the Court cannot do indirectly what it is prohibited from doing directly. Mr. Nazir Ahmad Khan for the petitioner invited our attention to the fact that Article 170 of the Constitution, which confers powers on High Courts to issue certain writs, is a later provision in the Constitution as compared with Article 89. He pointed out that the language in which Article 170 is couched, is perfectly general containing no exception or limitation and, according to him is, not controlled by any other provision of the Constitution. The apparent inconsistency between Articles 89 and 170 could, therefore, be resolved in his opinion, only by giving full effect to Article 170, and for this purpose learned counsel invoked the doctrine of implied repeal. The authors of the Constitution, however, must be deemed to be consistent with themselves, and if at one place they have expressed their mind clearly in the shape of Article 89, the inference would be legitimate that they had not changed their opinion when they came to enact Artcile 170. The question, therefore, is whether the two provisions can stand together in spite of their apparent inconsistency. Of course, if the two provisions involve an, absolute contradiction and it is impossible to construe them together, then, in accordance with the well‑known principle of construction of statutes, the former provision must give wav r to the latter. The maxim: leges posteriores priores contrarias abrogant will then come into play. At the same time the doctrine of implied repeal should not be brought in unless that course is inevitable on the language of the statute. Any reasonable construction which offers an escape from it, is more likely to be in consonance with the real intentions of the framers of the Constitution. In my opinion, the two can be read together inasmuch as Article 89 is a special provision applicable to a particular subject, whereas Article 170 is general in its terms, and Article 89 can, therefore, be construed, as an exception to the general provisions of Article 170. This would be in accordance with another well known canon of interpretation of statutes, embodied in the maxim generalia specialius non derogant‑a general law does not abrogate an earlier special one by mere implication. The suggestion made by Mr. Nazir Ahmad Khan that the prohibition contained in Article 89 applies to the ordinary Civil Courts and not to the Might Court when exercising its extraordinary writ jurisdic tion, cannot, therefore, be accepted as sound. An alternative time of approach adopted by Mr. Nazir Ahmad Khan was to confine the scope of Article 89 to such proceedings as have in strict conformity with the provisions of the Constitution Act and the rules framed for the conduct of business in the Assembly. Exhypothesi, however, if the proceedings did not suffer from any defect and were in consonance with law, they would require no protection at all The argument does not commend itself as valid to me. If order simplifies the position. Learned counsel for the petitioner, contended that the so‑called proceedings of the Assembly in this case should not be described as "proceedings" within the meaning of Article 89 at all, because they were vitiated by coercion, duress and mala fides. In the view of the learned counsel, therefore, the challenge offered by the petition to such proceedings was not within the mischief of Article 89. I am conscious of the fact that the language of Article 89 is general and contains no words of limitation. Full effect, therefore, must be given to the language employed by the Legislature, and, as contended by Mr. Brohi, if the text is explicit, it should be regarded as conclusive alike in what it directs and what it forbids. As has been observed above, however, Mr. Brohi himself recognised exceptions in certain instances which would justify the issue of a writ to a Speaker of the Provincial Assembly, notwithstanding the provisions of Article 89. I am unable to assent to the intractable proposi tion advanced by the learned Attorney‑General of Pakistan that the jurisdiction of this Court is ousted completely and absolutely, in all circumstances, in respect of proceedings, of whatever character, in the Provincial Assembly, even if the objection taken may not directly affect the formal validity of the proceedings but may involve an indirect challenge to its legal effect. The learned Attorney‑General evidently would regard the "proceedings" in the Assembly to be sacrosanct, though they may amount to nothing more than decisions obtained at pistol point, by a coterie of adventurous politicians. I have formed the opinion that in a proper case, the writ jurisdiction of this Court could be legitimately F invoked where for instance, the so‑called proceedings in the Assembly are really outside the purview of the Constitution Act. The complete ouster of jurisdiction of Civil Courts is not to be readily inferred from special legislation. Under section 9 of the Civil P. C., jurisdiction is vested in Civil Courts to try all questions of a civil nature except those whose cognisance is either expressly or impliedly barred. For the purpose of this case, however, it appears to be unneces sary to indicate the precise limits within which the jurisdic tion of this Court must be confined, consistently with Article 89 of the Constitution. On the facts as they appear from the material on record before us, the instant case is not a suitable one for that jurisdiction to be exercised. Besides perusing the affiavits submitted on behalf of both parties, we had recourse to the record of proceedings of the Assembly, which was made available to us. It appears from that record that while the division was going on, it was brought to the notice of the chairman of the meeting, Mr. Qizilbash, that Mr. Varyani was being forced to get his vote recorded for a particular candidate against his will. The chairman sent for Mr. Varyani through his personal secretary, but he did not appear before him immediately. He came later and declared that he was a supporter of Mir Ghularn Ali Talpur, the Muslim League candidate, and had always intended to vote for him. He made somewhat conflicting statements as to what happened in the Ayes' Lobby. At one stage he asserted that he had voted for Chaudhary Fazal Ilahi against his will, at another that he had not voted at all for him and someone had got his vote recorded, and still at another stage that he was subjected to coercion. The temporary Speaker sent for the official tellers who were in the Ayes' Lobby, and in the words of the record of proceedings, they also made "incoherent statements". To elucidate the matter further, we thought it fit to examine the official tellers as well as Mr. Qizilbash as witnesses. It transpires from the evidence recorded by us, taken in conjunction with the record of proceedings of the Assembly, that Mr. Varyani may have given some indication to the official tellers that he was not averse to his vote being recorded for Chaudhary Fazal Ilahi though he may have yielded to vigorous canvassing or pressure from important persons in doing so. The procedure explained to us was that from the Chamber, the members go into the lobbies on either side, that doors are locked so that no one can go outside the Chamber and the lobbies, nor any one can enter from outside, and that the recording of votes is done by the official tellers' ticking off the names of the members in the lists, when either the member concerned expressly asks them to do so, or in any member's presence, and that of party representatives, some Minister or member identifies him and asks the teller to tick off his name without any objection being raised. There is one passage for ingress to each lobby and another for ingress therefrom to the Chamber. The allegation made on behalf of Mr. Varyani was that he was forcibly dragged from; the Chamber into the lobby by two Ministers and then his vote recorded for Chaudhary Fazal Ilahi, in circumstances which would amount to coercion. One of the tellers told us that he had seen Mr. Varyani nodding his head in assent when asked whether his vote should be recorded in the Ayes' Lobby so as to favour Chaudhary Fazal Ilahi. The other teller did not see this gesture but was told about it by his companion when they were called to appear before the temporary Speaker; The record of the proceedings shows that the temporary Speaker had received the impression from the tellers' state ments that Mr. Varyani had uttered the words "han, han" when asked whether he wanted to vote in the Ayes' Lobby. The tellers denied that they had made such a statement to the temporary Speaker who, however, affirmed on oath before us that the record was correct. The tellers deposed that they were reluctant to tick off Mr. Varyani's name until they had positively Confirmed from his own lips that he wanted to, vote for Ch. Fazal Ilahi, but they were unable to do so, for Mr. Varyani left the lobby. They, however, tick‑marked his name because of the insistence of one Minister of the Government that they should do so, and on the declaration of Mir Ali Nawaz Talpur, brother of Mir Ghulam Ali Talpur, (who was present in the Ayes' Lobby on behalf of the Muslim League), that he had no objection to Mr. Varyani's name being tick‑marked in the list. Considering that one of the official tellers belonged to Sind and had reason to be grateful to the League candidate for the interest he took in his re‑employment and that the other teller was in no way proved to be biased in favour of one party or the other, I am inclined to hold that the tellers bona fide ticked off Mr. Varyani's name when he indicated his assent to that course, either by nodding his head or by uttering some words. He may have been persuaded into doing so against his real wishes, by some members of the Ministerial Party, but I am unable to hold that he was not a free agent when the vote was recorded. His subsequent protests may merely indicate that he belonged to that fluid group of persons in the Assembly, which vacillating minds made them flit across the dividing line between the contending parties, from one side to the other, at a moments' notice. Mr. Qizilbash, when giving his decision on the point that Mr. Varyani's vote must be deemed to have been correctly recorded, could not be said to have been actuated by mala fides. As he pointed out in his evidence before us, he did not see Mr. Varyani being dragged from the Chamber to the Ayes' Lobby, nor did the member himself draw his attention to any such escape at the relevant time. The further facts that he did visit the Ayes' Lobby, that he did admit in one statement that he had cast his vote for Chaudhary Fazal Ilahi albeit against his will that the tellers corroborated his asserting attitude at the time and that one of the League representatives in the lobby has no objection to his name being ticked off, would go far in establishing the bone fides of the decision given by the temporary Speaker. It is extremely unlikely that Mr. Varyani could have been bodily removed from the Chamber to the Ayes' Lobby, against his will, without his making an attempt to draw the attention of the Speaker to his plight. With regard to the allegation that Mir Muhammad Bakhsh Talpur was prevented from voting for either candi date, by some members of the Republican Party detaining him, this is of a piece with the assertion that Mr. Varyani was coerced into voting for Chaudhary Fazal Ilahi, and I am not prepared to say that the allegation is substantiated in view of the contradictory affidavits filed before us. Viewed in this light the matter becomes simple. The pro ceedings do not appear to be vitiated by anything like coercion, duress or mala fides. The decision of the temporary Speaker likewise could not be attacked on these grounds as it was a bona fide decision after consideration of all the circumstances. The proceedings in the Assembly and the decision of the temporary Speaker, are, in my opinion, fairly covered by the language of Article 89, on the facts of this case and they are not open to challenge by the petitioner in consequence. It may be noticed that the defect in the election of Chaudhary Fazal Ilahi as a Speaker, if any, is not peculiar to or inherent in his person so as to attract the exception visualised by Mr. Brohi, to the immunity conferred by Article 89. Even if there was some irregularity in this appointment, it could be cured by the re‑appointment of Chaudhary Fazal Ilahi, presum ing that the majority was in his favour. Alternatively, if the majority was against him, he could be dislodged from his present office by a vote of no confidence, moved in accordance with the prescribed procedure. In such circum stances there is authority for the view that a writ of quo warranto would be inappropriate. Reference may be made to Bradley v. Sylvestre (25 LTR 459), and King v. Speyer and King v. Cassel (1916 IKB595). After a consideration of the facts and circumstances of this case I have reached the conclusion that though this Court has jurisdiction inappropriate cases to exercise its extraordinary writ jurisdiction even in connection with proceedings in the Provincial Assembly, the instant case is not one which calls for such action. I would, therefore, dismiss the petition, but in the circumstances would leave the parties to bear their own costs. ABDUL AZIZ KHAN, J.‑

I agree. J. ORTCHESON, J.‑

I agree. KAYANI, J.‑

While agreeing that this petition should be dismissed, I add this note because I wish to take a more defined attitude towards our jurisdiction. The question here is not so complex as in the poem begin ning with "O! what's the matter? What's the matter?" For my part, I was at no stage afflicted with any doubt. The matter is simply this: On the one hand, the High Court has transcendant power under Article 170 of the Consti tution‑not subject to any other provision, and notwith standing the powers of the Supreme Court under Article 22

to issue to any person or authority, directions, orders or writs, for the enforcement of the fundamental rights "and for any other purpose". On the other hand, Article 89 requires that the validity of any proceeding in the Provincial Assembly shall not be questioned in any Court." The petitioner says that during the election of the Speaker, which was deter mined by the casting vote of the chairman, one member was forced to vote for the Republican candidate, and it was thus that the Muslim League candidate lost. Now the election of the Speaker is undoubtedly a proceeding in the Assembly, and if the matter were con fined to the mere validity of the election, the Court will have no jurisdiction. This is clear enough; but no less is it clear that a proceeding in the Assembly may be so vitiated by something repugnant to the principles of natural justice or antagonistic to a fundamental right or perhaps even shocking to recognised procedure that it loses the right of being called a proceeding. Mr. Nazir Ahmad Khan illustrated the point by introducing two members who make others' vote for a measure at the point of guns. The gunmen need not be members; they may be goondas sitting in the distinguished visitors gallery. As the members proceed to the lobbies, they look at the gunmen and change their direction. The measure is voted by an ostensible proceeding in the Assembly. But is that a proceeding? Mr. Fayyaz Ali says it is and Mr. Brohi says it is not. We are not slaves of literalism. We all know that by proceedings we mean such proceedings as we normally have in Assemblies. We do not then think of fraud, coercion or bad faith. The highest judicial level which an Assembly proceeding may attain for the Speaker is to determine whether the use of any particular expression, say crook, is un-parlia mentary, and consistently with the freedom of speech, which is a fundamental right, to divert the expression to crooks outside the house. That, among other things, is a privilege of the Assembly, and the Courts are well‑excluded from it. Article 89 in fact deals with privileges, as the marginal note indicates and as Mr. Brohi himself maintained. These privileges may bi enumerated clause‑wise: Clause (1).‑--The validity of any proceeding in the Assembly shall not be questioned in any Court. Clause (2).‑

No officer or member of the Assembly concerned with the regulation of procedure, conduct of business or maintenance of order shall be subject to the jurisdiction of any Court in relation to the exercise of these functions. Clause (3).‑

No member shall be liable to any proceeding in any Court in relation to what he speaks in the Assembly pr what he votes for. Clause (4).‑

No person shall be liable for the publication of any proceeding under the authority of the Assembly. Clause (5).‑Subject to these provisions, the privileges of the Assembly may be determined by an Act of the Provincial Legislature. These are all matters relating either to procedure or to freedom of expression and vote. Thus you cannot bring an action against a member for using defamatory language or voting as he chooses. He can be abusive, so long as the term of abuse is not "un-parliamentary," and it is for the Speaker to decide whether such is the tenor of the abuse. Next, under clause (5), the Assembly itself has power to enlarge its privileges, but if the Assembly were to decide that it shall be the privilege of the members, with unashamed brazen ness, to coerce one another to vote in a particular manner, we shall not recognize that privilege. That is because, primarily, a Court of law being a Court of justice, it repels coercion, fraud and bad faith; as a secondary matter, such a privilege is repugnant to the privilege created‑ by the Constitution, namely, that freedom of vote is so valuable a right that you cannot even bring au action in respect of its exercise in any Court. I call this a "secondary matter" because I cannot bring myself to hold that any provision in the Constitution was intended to divert the Court from the path of justice, equity and good conscience. The Constitution represents the will of the people, and the will of the people is to be construed in favour of justice, equity and good conscience. Of all Parliaments and Assemblies in the world, the privilege of practising fraud and coercion, or of acting with malice, was certainly not to be reserved for the Assemblies of Pakistan, as though it were a fundamental right of the people. Take a fundamental right like the freedom of speech and expression which is guaranteed by‑Article 8 and the right to enforce which is guaranteed directly by article 22 and indirectly by Article

170. Can it be rendered impotent by a decision of the Assembly to exclude it from its proceeding? The reason why certain privileges attach .to the Assembly, is that it is necessary to remove from the members any fear of legal action, if they are to speak their minds freely. But if the freedom thus conferred upon them were to be taken away, say by the Speaker, under the guise of a proceeding immune from action, the very purpose of the privilege would be defeated. Freedom of action has not been declared separately as a fundamental right. That, I believe, is inherent in being the citizen of a free country. If all citizens are equal before law, if they can assemble and associate freely, if they can express themselves freely, they have freedom of action in all lawful spheres of life. Freedom of action is thus the sum‑total of fundamental rights. If, therefore, a person is bullied into voting, and we tell him that a proceeding of bullies is nevertheless a proceeding, we abuse the good taste which is inherent in the constitution. Let our fondness for drawing parallels be subdued for once we cannot conscientiously compare our democratic institutions and their privileges to countries like England and America. Our growth has not been natural. We have had winters, when there was no growth at all; and we have had rainy seasons, with plenty of mushroom growth. The people in their very wise wisdom have chosen to give their institu tions only a few limited privileges, and in their wisdom they have thought it fit to invest the High Court to issue directions "for any . . . . purpose." It is, therefore, proper that we should not allow these privileges to exceed their purpose. Therefore, Mr. Fayyaz Ali's plea of total verbal slavery is untenable. And Mr. Brohi's partial concession 'to some aspects of natural justice and some aspects of the constitution in the reading of clause (1) of Article 170 meets its grave in the two succeeding clauses. Take a case where the conduct of a judge, which is immune from discussion under Article 175, is discussed by a member in the Assembly. The Speaker also permits the discussion. The obvious remedy against such discussion lies in contempt proceedings. But under clause (2), the Speaker is not subject to the jurisdiction of a Court for what he does by way of regulating the conduct of business and under clause (3) the member is not liable to any proceed ings in any Court in respect of anything said by him in the Assembly. Article 175 will thus be a dead letter. But if it is not‑and it is not‑‑then all clauses of Article 89 are subject to just exceptions. In short, I do not recognize a proceeding as an Assembly proceeding if it is founded on coercion, fraud or bad faith. On the question whether a writ would be appropriate if we found that Ch. Fazal Ilahi still commanded the majority, I express no ready opinion, but perhaps I would not be inclined to follow‑I say respectfully‑the two English authorities cited by the learned Chief Justice. That is because in our, peculiar conditions we as a High Court have not been crushed into the tight frame of the quo warranto or any other English writ, and I do not wish lightly to throw away the power vested in us by Article

170. The reason why I think we should not interfere is that the basis of our interference, namely, coercion, is not established. This appears to be the case of a weathercock who ‑tries to make fair weather for everybody. SHABIR AHMAD, J.‑

I agree that the petition be dismissed and the parties left to bear their own costs, but would like to make a few observations. If Articles 56 and 89 of the Constitution of the Islamic Republic of Pakistan clauses (1) of which Articles are similarly worded, meant that Courts can in no circumstances examine whether or not what the Assembly did was valid, the results will at times be so disastrous that the Constituent Assembly which framed the Constitution can easily be presumed not to have had the intention of barring the jurisdiction of the Courts. Now the 3rd clause of Article 90 of the Constitution enjoins that when the Governor of a Province has declared that he withholds his assent from a Bill passed by the Pro vincial Assembly and the Bill is again passed with or without amendment by the votes of not less than two‑thirds of the members present and voting, it is to be presented again to the Governor who has to assent to it. Suppose in a case like this some votes are obtained by coercion or by keeping muzzles of firearms near the temples of some voters in order to secure the vote of the requisite two‑thirds of the strength of the members present and voting, the measure will become a law though it was in no sense one. A similar case can be envisaged when the Governor had returned a Bill to the Assembly because the Constitution provides that in such a contingency the Governor has to assent to the Bill if it is again passed by a majority of the total number of the members of the Assembly. The learned Attorney‑General contended that in the cases mentioned above the President could act under Article 193 and right the wrongs that had been done. The remedy suggested by the learned Attorney‑General can have so drastic consequences that I for one find it difficult to believe that the Constituent Assembly had intended to countenance them, but had not allowed the Courts the powers to examine the matter. But the proceedings with regard to the impeachment of the President is a case in which the jurisdiction of the Courts cannot be presumed to have been excluded because another remedy was open. Clause (4) of Article 35 of the Constitution lays down that if, after the consideration of the charges against the President, a resolution is passed by the National Assembly, by the votes of not less than three‑fourths of the total number of members, declaring that the charges had been substantiated, the President shall vacate his office on the day on which the resolution is passed. What is the remedy if some members of the National Assembly are coerced into voting for the resolution regarding the impeachment of the President by means of violence or threat of imminent violence? I might make it clear that it is not because in some cases there will be no other remedy open that I have arrived at the conclusion that a party considering itself aggrieved by what happened in a Legislative Assembly can seek redress from Courts if he established that the proceedings that the Assembly held were invalid. What is protected is the "proceedings" of the Assembly, and to say that all that is done in the Assembly Chamber is the proceedings of the Assembly is an interpretation which no one will accept. Now clause (b) of Article 88 of the Constitution enjoins that the decisions of the Provincial Assembly shall be taken by a majority o the members present and voting. If a Bill had been declare by the Speaker to have been passed by the Assembly not because there had been voting on it but because the members present had agreed to the matter being decided by the result of a boxing bout between the Leader of the House and the Leader of the Opposition, and this fact were established, will the Court of law be powerless and be bound to accept the proceedings as valid though they were in contravention of the provisions of the Constitution itself? What sanctity the proceedings of the British House of Commons enjoy is to my mind entirely irrelevant, and, though some of the decisions cited by Mr. Brohi would show that Courts cannot pronounce on the validity of the proceedings of the House of Commons, there are a number of other decisions equally weighty which have taken the contrary view, but, because the law of England has no bearing when what is to be interpreted is the Constitution of the Islamic Republic of Pakistan, I need say no more about that matter, I have no hesitation in holding that Courts are not powerless with regard to examining the validity or otherwise of the proceedings in the Assembly, and that, if the facts alleged in the present case were established, Article 89 of the Constitution will have been of no avail to the respondents. I will now say a few words about the vote of Mr. Varyani, which could turn the scales in favour of one party or the other. My first impression about Mr. Varyani was that he had probably been coerced into voting for the Republican Party candidate, but when I went carefully through the records of the proceedings of the Assembly for the 20th of May 1956, I changed my view, and the slight suspicion of coercion having been practiced completely vanished when the two official tellers and Mr. Qizilbash, who was the Chairman of the Assembly on the 20th of May 1956, made statements on oath as witnesses. The change of front by Mr. Varyani looked to me to have been due to the fact that he appears to have been one of the "fluid voters", that is, those voters who wished to be on the successful side. He knew that 301 members were present in the Assembly Chamber and could not but have thought that it was only the candidate who secured at least 151 votes that will, win, as, in the feverish pitch at which the competition had reached, no member was likely to abstain from voting. Now when he discovered that he had cast his vote for the party which secured only 148 votes, his reactions appeared to have been like those of a punter who has backed an unsuccessful horse. The fact that Mr. Varyani did not complain to the Chairman of the meeting for quite half an hour after he had cast his vote and did not appear before the Chairman though sent for through the Personal Secretary of the Chairman are circumstances which confirm my suspicion that it was only after he felt that the Republican Party had not won that he took up the position that he had been forced to vote for a candidate for whom he had no desire to vote a position to which he did not adhere because he made different statements shortly afterwards. Consequently, no coercion having been proved, the petition cannot but be dismissed. A. H. Petition dismissed.