P L D 1957 Supreme Court (Pak (PLP)

The Constitution does not lay down the principle of electorate and leaves it to Parliament to provide by Act, after ascertaining the views of the Provincial Assemblies and taking them in to consideration, whether elections to the National Assembly and the Provincial Assemblies shall be held on the principle of joint electorate or separate electorate. The views of the Provincial Assemblies having been ascer tained, the Parliament eventually passed a law called the Electorate (Amendment) Act, 1957, providing that elections to the National Assembly and to both the Provincial Assemblies shall be held on the principle of joint electorate. Article 143 defines the qualifications of electors and Article 140 empowers the President to constitute an Election Commission charged with the duty of preparing electoral rolls for elections to the National Assembly and the Provincial Assemblies, of revising such rolls annually, and of organizing and conducting elections to these Assemblies. Whenever the National Assembly or a provincial Assembly is dissolved, the Commission is under an obligation to hold general elections for the constitution of such Assembly not later than six months from the date of dissolution. The President is also empowered to appoint a Delimitation Commission, with powers to delimit territorial constituencies for elections to the National Assembly and the Provincial Assemblies. Both these Commissions were appointed by the President in June 1956. As the new constitutional machanism could be brought in to full operation only after general elections to the National Assembly and the Provincial Assemblies had been held, the Constitution enacts in Part XIII under the heading `Temporary and Transitional Provisions' some important provisions governing the situation before the new Assemblies are brought into existence under the parmanent part of the Constitution. These provisions relate to the election of the President, the appointment of Governors and Ministers, the continuance of existing laws, Courts, Advocates‑General Auditor‑General, Government servants and Public Service Commissions, succes sion to property and assets, the transfer of existing rights, liabilities and obligations and the performance of legislative functions by the existing Legislative Assemblies at the Centre and the Provinces. As the provisions most relevant to this Reference relate to the functions of the existing Legislative Assemblies, they are set out below:‑ "223. (1) Until the first meeting of the National Assembly constituted in accordance with the provisions of the Constitution, the body functioning as the Constituent Assembly of Pakistan, immediately before the Constitution Day, shall, as from that day, be the National Assembly of Pakistan. (2) Any casual vacancy in the National Assembly under this Article shall be filled in accordance with such rules as may be made in that behalf by the President. (3) Persons holding office immediately before the Consti tution Day as Speaker and Deputy Speeker of the Consti tuent Assembly shall, as from that day, hold office respec tively as Speaker and Deputy Speaker of the National Assembly under this Article, on the same terms and conditions as to remuneration and other privileges as were applicable to them immediately before the Constitution Day." "225. (1) Until a Provincial Assembly for the Province of East Pakistan has been duly constituted under the provisions of the Constitution the Provincial Legislative Assembly for the Province of East Bengal functioning immediately before the Constitution Day shall exercise the powers conferred, and perform the duties imposed upon the Provincial Assembly of East Pakistan by or under the provisions of the Constitution; and a person holding office immediately before the Constitution Day as speaker or Deputy Speaker of the Provincial legislative Assembly for the Province of East Bengal shall, as from that day, hold office as Speaker or, as the case may be, Deputy Speaker of the Provincial Assembly of East Pakistan. (2) Until a Provincial Assembly for the Province of West Pakistan has been duly constituted under the Provi sions of the Constitution, the Legislative Assembly of that Province consisting of persons elected thereto under section 11 of the Establishment of West Pakistan Act, 1955 (hereinafter referred to as the Legislative Assembly) shall exercise the powers conferred, and perform the duties imposed upon, the Provincial Assembly of West Pakistan by or under the provisions of the Constitution; and such person as may have been elected as Speaker or Deputy Speaker of the Legislative Assembly before the Constitu tion Day shall, as from that day, hold office as Speaker, or, as the case may be, Deputy Speaker of the Provincial Assembly. (3) Any casual vacancy in a Provincial Assembly function ing under clause (1) or clause (2) shall be filled in accord ance with such rules as may be made in that behalf by the President. (4) The provisions of clause (1) of Article 79 shall not apply to a Provincial Assembly functioning under clause (1) or clause (2).". As regards the power to dissolve, the provisions which occur in the parmanent part of the Constitution are:‑ "50‑ (1) The President may summon, prorogue or dissolve the National assembly and shall, when summoning the Assembly, fix the time and place of the meeting: Provided that at least one session of the National Assembly in each year shall be held at Dacca. (2) Whenever a Prime Minister is appointed, the National Assembly, if, at the time of the appointment, it is not sitting and does not stand dissolved shall be summoned so as to meet within two months thereafter. (3) Unless sooner dissolved, the National Assembly shall stand dissolved on the expiration of five years from the date of its first meeting." "83.‑(1) The Governor may summon, prorogue or dissolve the Provincial Assembly and shall, when summoning the Assembly, fix the time and place of the meeting. (2) Whenever a Chief Minister of a Provincial Govern ment is appointed, the Provincial Assembly, if, at the time of the appointment, it is not sitting and does not stand dissolved, shall be summoned so as to meet within two months thereafter. (3) Unless sooner dissolved, a Provincial Assembly shall stand dissolved on the expiration of five years from the date of its first meeting." The short question that falls for decision in the present Reference is whether Article 225 must be read as subject to Article 83, clause (1) of which gives to the Governor the power to dissolve the Provincial Assembly or whether on its true construction Article 225 itself excludes the Governor's power to dissolve the existing Assembly, hereinafter referred to as interim Assembly or temporary Assembly functioning in his Province under that Article. Except that at times Mr. Brohi entered a wider and more general filed the argument of the counsel who claim for the Governors the power to dissolve the present Provincial Assemblies rests on the contention that clause (1) of Article 83 is applicable to such Assemblies. Not mentioning the minor differences‑even contradictions‑in their reasoning the broad argument put forward is that the Provincial Legislatures which came into existence on the Constitution Day under Article 225 are "Provincial Assemblies." that the general provi sions of the Constitution which apply to Provincial Assem blies are applicable to them, that one such provision is Article 83 (1) which gives to the Governor the power to summon, prorogue or to dissolve the Provincial Assembly, and that therefore the Governor has the power to dissolve the existing Assembly of his Province. The argument is divided in two parts. In the first place, these learned counsel establish by reference to the general provisions of the Constitution that the expression `Provincial Assembly' wherever used includes the Provincial legislatures set up under Article

225. Having attempted to establish this point they rely on the words, "the Governor may dissolve the Provincial Assembly" in clause (1) of Article 83 and ask the Court to infer that the existing Provincial legis latures being included in the expression "Provincial Assembly", the Governor has the power to dissolve them. It is necessary at this stage the mention the difference in the respective positions taken by the learned Attorney‑General and Mr. Brohi. While the former concedes that Article 225 determines the duration of the interim Provincial legislature, the latter maintains that that Article is not at all a duration provision but only a reference of explanatory provision, that is to say, that the true purport of that Article is merely this that wherever a reference is found in the general provisions of the Constitution to a Provincial Assembly, such reference will be deemed to include a reference to the iterim Assembly functioning under Article

225. One result of this difference is that whereas according to the learned Attorney‑General the duration of an interim Assembly is from the commencement of the Constitu tion to the constitution of a Provincial Assembly after general elections and not five years if no elections are held, according to Mr. Brohi if general elections are not held for a period of five years, the interim Assemblies functioning now will be automatically dissolved on the expiry of five years under clause (3) of Article

83. In fact he asserts that in the Constitution the tenure assigned to the Provincial Assembly West Pakistan under Article 225 is, with a minor modification, precisely the same as under section 11 of the Establishment of West Pakistan Act. Comparing that section with Article 83, read with Article 225, he argues that the interim Legislature for West Pakistan set up under that Act: (a) had a term of 18 months: (b) could be dissolved before the expiry of 18 months in accordance with the provisions of the Government of India Act, 1935, and (c) was to be dissolved for the purpose of enforcement of new Constitution. Under the Constitution, he contends, the Assembly set up for West Pakistan under Article 225: (a) has term of five years . . . . . . Art. 83 (3); (b) can be dissolved by the Governor before the expiry of five years . . . . . . . Art. 83 (1); and (c) shall cease to function when a Provincial Assembly has been duly constituted under the provisions of the Constitution . . . . . . Art.

225. While it was admitted both by the learned Attorney General and Mr. Brohi that on dissolution Articles 141 and 84 would at once be attracted to the situation and the new Assembly must be constituted and hold its first sitting within six months of the last sitting of the present Assembly, Mr. Manzur Qadir argued that these Articles could be got over, if necessary, by the President by his taking suitable action under Article

234. His contention is that as distingui shed from the Assembly to be constituted under the normal provisions of the Constitution, an interim Provincial Assembly is an institution governed by its own incidents and that until a new Assembly under the Constitution is brought into existence, it may be dissolved and reconstituted as many times as the Governor on being advised by the Chief Minister wishes. The absence of an electorate, according to him, presents no serious difficulty as an ad hoc electorate can be created by the President whenever the Governor decides on dissolution. The argument assumes that though the dissolu tion is the act of the Governor, the President will every time be ready and willing to remove the Governor's difficulty by treating it as his own and creating a new electorate to implement the Governor's action. And lastly is the over‑all argument that premature dissolution is one of the ordinary incidents of an elected legislature, that the Court should have a pragmatic approach to the solution of such constitu tional questions and endeavour to discover in the constitutional instrument a power for the Governor where some practical necessity or constitutional principle requires it. In order to examine the validity of this reasoning it becomes necessary to state here certain Rules, as to which there is and can be no dispute, governing the construction of statutes. A host of judgments of weight and dignity and passages from text‑books of recognised reputation have been cited by learned counsel on both sides expounding the general principles which, in situation like the present, are to be borne in mind in the interpretation of statutes. It is unnecessary to cite these authorities because on closer examination they seem to present no difference in the approach. Ever since man learnt to express his feelings and thoughts by words, the function of the person to whom the words are addressed, a function of which he is scarcely conscious, has been to understand what is intended to be conveyed by the speaker, and ever since law began to be written the duty of those to whom it is addressed or who are called upon to expound it has been to discover the intention of the law giver. One general rule that emerges, and it is an ancient rule, from discussions on the subject is that in the interpreta tion of written instruments, whether they are constitutional charters or ordinary statutes or other documents, the first object of the Court is to discover the intention of the author B and that such intention is to be gathered from the words used in the statute or document. The tenth edition of Maxwell, the celebrated authority on the Interpretation of the Statutes, opens with the statement: "A statute is the will of the legislature, and the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of them that made it'. If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words them selves in such case best declaring the intention of the by legislature. The object of all interpretation of a statute is to ant determine what intention is conveyed, either expressly or impliedly, by the language used so far as is necessary for determining whether the particular case or state of facts presented to the interpreter falls within it". When the language is not only plain", says the learned author at page 4 "but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable, says Vattel, to interpret what has no need of interpretation. Such language best declares without more the intention of the law‑giver, and is decisive of it. The rule of construction is to intend the legislature to have meant what they have actually expressed'. It matters not, in such a case, what the consequences may be". This statement is chiefly based on the Rule declared by the Judges in the ancient Succex Peerage Claim ((1884) 11 Cl. & F 85, 143) and the still earlier cases of R. v. Bunburry ((1834) 1 A & E 136, 142) and Warburton v. Loveland ((1831) 2 D & Cl. (H. L.) 480, 489) and was accepted by the Judicial Committee in Cargo ex Argos ((1872) L R 5 P C 134, 153). The rule is similarly stated by the editor of 'Craies on Statutary Law' 5th Edition, p. 65 and in the 3rd edition of Odgers' Construction of Deeds and Statutes, pages 181‑

184. The second rule is that the intention of the legislature in enacting a statute ought to be derived from a consideration of the whole enactment in order to arrive at a consistent plan. It is wrong to start with some a priori idea of that intention C and to try by construction to wedge it into the words of the statute. As Lord Halsbury said in Leader v. Duffey ((1888) 13 App. Cas. 294 at p. 301) ;‑ "All these refinements and nice distinctions of words appear to me to be inconsistent with the modern view, which is I think in accordance with reason and common sense, that, whatever the instrument, it must receive a construction according to the plain meaning of the words and sentences therein contained‑ But I agree that you must look at the whole instrument inasmuch as there may be inaccuracy and inconsistency: you must, if you car, ascertain what is the meaning‑of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it. But it appears to me to be arguing in a vicious circle to begin by assuming an intention apart from the language of the instrument itself and having made that fallacious assumption to bend the language in favour of the presumption so made". And Lord Davey said in Canada Sugar Refining Co. v. R. ((1898) A C 735 at p. 741) :‑ "Every clause of a statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute . . . . . . ". The third rule is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made R. v. Arnold ((1864) 5 B & S 322). And the fourth rule is that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. Per Romilly M. R. in Pretty v. Sally ((1859) 26 Beav 606 at 610). These rules are equally applicable to the interpretation of constitutions, although because of their permanence and the need to apply them to the changing conditions of their society for which they were meant, constitutions are subject, in their interpretation, to certain modifications of these doctrines. The duty imposed upon the judiciary, however, of discovering the intention of the framers of the constitution hand the true meanings of the constitutional instrument is equally imperative, and 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 G adopting it. As has been aptly observed by an Ohio Judge in H. M. Co. v. Miller ((92) Ohic. 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 q 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 [11 Am. Jur., Constitutional Law, Art. 55]. The next rule in construing a constitutional pro vision 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 or a phrase in a constitutional provision must be read in connection with the context. Nascitur a Sociis is the rule of construction applied to all written instruments. Therefore, particular phrases of a constitution must be construe with regard to the remainder of the instrument and to the express intent of the constitutional convention in adopting it (11 Am. Jur., Constitutional Law Art. 53) 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 given to each. Cases may, however, arise where it is impossible to harmonize or reconcile portions of a constitution. In such a case, if there is a conflict between a general and a special provision, the special provision must prevail in respect of its subject‑matter, as it will be regarded as a limitation on the general grant (Am. Jur., Constitutional Law, Art. 53). As will be noticed later, each and every one of these rules is applicable to the present case. Bearing in mind these principles of construction, let us now approach the question whether a Governor has the power to dissolve the Provincial Assembly functioning in his Province under Article

225. As we read Article 223, which refers to the interim National Assembly, with clauses (1) and (2) of Article 225 which refers to the interim Provincial Assemblies of East Pakistan and West Pakistan, we find that each of these provisions is differently worded. Thus under Article 223, the body functioning as the the Constituent Assembly of Pakistan immediately before the Constitution Day becomes the National Assembly of Pakistan; under clause (1) of Article 225, the Provincial Legislative Assembly for the Province of East Bengal functioning immediately before the Constitution Day becomes entitled to exercise the powers and liable to perform the duties imposed upon the Provincial Assembly of East Pakistan; and under clause (2) of Article 225, the Legislative Assembly of West Pakistan, consisting of persons elected thereto under section 11 of the Establishment of West Pakistan Act, becomes entitled to exercise the powers and undertakes the duties imposed upon the Provincial Assembly of that Province. None of the counsel has suggested that any argument, one way or the other, can be built upon this difference in description and phraseology. The words in clause (2) "consisting of persons elected thereto under section 11 of the Establishment of West Pakistan Act, 1955" are stated to have been considered to be necessary because though elections to the Legislative Assembly of West Pakistan had been held, the members elected had not taken the oath of office before the com mencement of the Constitution. And it is suggested by Sardar Abdur Rab Nishtar that the words "shall from that day be the National Assembly of Pakistan" in Article 223 were used to avoid a possible claim by the members of the Constituent Assembly that they continued to be members of that Assembly even after the Constitution Day. But since the point is not stated to be of any importance, it is unnecessary to pursue it any further. It is, however, obvious that if the difference in the phraseology of these provisions implies no change in the meaning and that the liability to dissolution either exists or does not exist in respect of each of these three Assemblies, the construction of one provision would furnish an important clue to the meaning of the other two, Let us now analyse Article 225: In substance it says:‑ (1) an Assembly constituted under that Article shah exercise the powers conferred and perform the duties imposed upon a Provincial Assembly; (2) these powers and duties shall be the same as are conferred or imposed upon a Provincial Assembly by or under provisions of the Constitution; and (3) these powers shall be exercised and duties performed until a Provincial Assembly for the Province has been duly constituted under the provisions of the Constitution. On these words there can' be no escape from the conclusion that an interim Provincial Assembly is entitled to exercise the powers and is under an obligation to perform the duties of a Provincial Assembly under the Constitution so long as a new Provincial Assembly is not constituted under the Constitution to take its place. The provision in the clearest possible terms, fixed the duration of the interim Assembly, which commences from the Constitution Day and ends on the day on which a new Provincial Assembly is constituted' under the Constitution. Therefore, until that event happens the interim Assembly must continue to function and any premature dissolution of it by an act of the Governor will be in contravention of the Article, because ex‑hypothesi if the interim Assembly is dissolved, the dissolu tion must necessarily be followed by a period during which the dissolved Assembly cannot exercise the powers and perform the duties imposed upon a Provincial Assembly by the Constitution. Mr. Manzur Qadir contends that on a true construction of Article 225, and if that Article is read with Article 234, it is possible for the President to order the Constitution of a new interim Assembly if the existing Assembly be dissolved by the Governor. The argument is that Article 225 fixes the extreme limit of the period during which a temporary M legislature has to function and that during this period ‑more then one interim Assembly may function. This position seems to have been adopted by him in order to escape from the consequences of the awkward position that must result if an interim Provincial Assembly be dissolved by the Governor when the machinery for bringing into existence another Assembly under the permanent provisions of the Constitution has not been set up. The stand taken is in direct conflict with that taken by the learned Attorney General and Mr. Brohi, according to whom on the dissolution of a Provincial Assembly it shall be the duty of the Election Commission under Article 141 to bring a new Assembly in existence within six months under the Constitution Mr. Manzur Qadir's argument involves an implied admission that Article 141 cannot be complied with if the dissolution is effected now or had been effected earlier and that the result of a present dissolution would be the establishment pf a non‑parliamentary and irresponsible form of government by for an indefinite period. But here Mr. Manzur Qadir is confronted with more than one insurmountable difficulty. Questioned, what would the President do if a Provincial Assembly were dissolved, the learned counsel suggested that he could re‑enact the farce of section 11 of the Establishment of West Pakistan Act and though that section itself did not contemplate the constitution of another Assembly on the lines on which the interim Legislative Assembly had been constituted, it was urged that the President could by an Order under Article 234 direct that elections to the new interim Assembly be held on the basis of district‑wise election by the members of the old Legislative Assemblies of the integrated Provinces of West Pakistan. This argument forcibly demonstrates the desperate straits to which Counsel: appearing on behalf of the President are driven in, their endeavour to claim for the Governor the power to dissolve. The Constitution defines the qualifications which a candidates for election to the Provincial Assembly, or a voter in a constituency for such Assembly must possess; but Mr. Manzur Qadir would give to the President under Article 234 the power to destroy, though for a temporary period, the very basis of the new Constitution by claiming for him the power to form the constituencies and to order the preparation electoral rolls in direct violence of the Constitution merely to implement the decision of a Governor. Thus the possible alternatives suggested to meet the situation that may arise from an immediate dissolution lands us into a jungle of confusion, leading to the irresistible conclusion that no such situation was envisaged by those who gave us the Constitution. But apart from all this, where is the justification, either in Article 225 or elsewhere in the Constitution, for such a fanciful supposition? If the interim Provincial legislature were repeatedly dissolved and reconstituted in the manner suggested, could it be said that such dissolutions and re constitutions were within the terms of Article 225? We have indicated above in the analysis of that Article that until a Provincial Assembly is constituted under the provisions of the Constitution, the powers of a Provincial Assembly have to be exercised and the duties of such Assembly per formed in the case of East Pakistan by "the Provincial Legislative Assembly for the Province of East Bengal functioning immediately before the Constitution Day" and in the case of West Pakistan by "the Legislative Assembly, of that Province consisting of persons elected thereto under section 11 of the Establishment of West Pakistan Act, 1955 Do not these words establish the identity of persons who subject to any casual vacancy being filed under clause (3)1 of that Article, are alone and to the exclusion of all others to exercise the powers and perform the duties of the Provincial Assembly? To this question there could be only one answer and yet if Mr. Manzur Qadir's contention be accepted, the persons who may exercise the powers and perform the duties of a Provincial Assembly need not be members of the Legislature Assembly of East Bengal or members of the Legislative Assembly of West Pakistan elected thereto under section 11 of the Establishment of West Pakistan Act. Are we, in the construction of a con stitutional provision, entitled completely to ignore the words that are there and to substitute for them words that are admittedly not there? Is it not our plain duty to give full effect to every word and every part of such provision? Further, if the present Provincial Assembly were dissolved, will the newly‑constituted Assembly have the same powers as the dissolved Assembly? The answer to this question again must be in the negative. A present Provincial Assembly can today make a law that as from the 1st of September 1957, smoking shall be an offence punishable with fine. But if that Assembly is dissolved today and the newly constituted Assembly can only meet say in March 1958, it will certainly not be in its power, by reason of Article 6, to make a law that any one who shocked in September 1957, shall be punishable with fine. Thus what is future for the present Assembly may be past for the future Assembly and what is prospective legislation by the former may be retrospective and therefore illegal legislation by the letter. Although the powers of a Provincial Assembly are, in the abstract, the same, the interval between a dissolution and reconstitution cannot in some respects be covered by retrospective legisla tion by the reconstituted Assembly. Thus for practical purposes there is in our Constitution an important difference between the powers of an existing Assembly and the one that may be constituted to replace it. And then there is the point, and it is an important point, that if the power to dissolve an interim Provincial Assembly vests in the Governor, a similar power must be conceded to the President in respect of the National Assembly functioning under Article

223. For a dictatorially minded President, there could be nothing easier than to dissolve the present National Assembly and constitute a new ad hoc Assembly consisting of members of his own way of thinking who by a two‑third majority could repeal the whole Constitution and frame a new Constitution to serve their own ends. A legislature returned after an ordinary general election often has a different outlook and legislative bias and a gerrymandered election can certainly produce a completely subservient body. We are not suggesting that any President will act, in that manner, but there can be no doubt that on Mr. Manzur Qadir's interpretation of the Constitution such possibility would undoubtedly exist in law. Having cleared the ground by dismissing as wholly untenable the contention that an existing Provincial Assembly may be substituted by another temporary Assembly to be constituted by the President under Article 234, we come to the next important grammatical clause in Article 225: "until a Provincial Assembly for the Province . . . . has been duly constituted under the Provisions of the Constitution". It was admitted by the learned Attorney‑General that these words indicate the point of time when the period which commenced with the Constitution Day would expire and that, therefore, the Article is a duration provision. A similar admission was made by Mr. Manzur Qadir though he went on to assert that the words merely indicate the extreme limit of the period and have nothing to do with the continued functioning of the existing Provincial Assemblies during this period Mr. Brohi, however, does not admit the Article to be a duration provision and describes it as assort of explanatory or reference provision for the purposes of other provisions of the Constitution. If these words indicate the end of the period for which the Legislative Assembly of East Bengal or the Legislative Assembly of West Pakistan is to exercise the powers and perform the duties of a Provincial Assembly there can be no manner of doubt that in the absence of words indicating that this period may be arrested or inter rupted by the happening of some other event or contingency the Legislative Assembly of both the Provinces must throughout the period perform the functions of a Provincial Assembly under the Constitution. No pragmatic approach or flexible rule of construction would permit us to refuse to give full effect to this clause and because the whole provision is merely a temporary provision it will be irrelevant to point to any general principle or invoke any constitutional theory to subject these Assemblies to the incident of a premature dissolution which is considered by Mr. Brohi to be necessary for a smooth working of the cabinet system of Government. Sardar Abdur Rab Nishtar referred to numerous provisions in the Constitution where the word `until' has been used and the point that he sought to establish, and which he succeeded in establishing, is that it in a provision of the Constitution a terminus a quo is given and the end of the period of time is also indicated by the word `until' then in the absence of words showing, expressly or by necessary implication, that the continuity of the period may be disturbed, the period continues until the happening of the event mentioned in the until‑clause. For instance, Article 132 declares "that Parliament may by law provide for the transfer of the railways in each Province to the Government of the Province or to an authority constituted in the Province for that purpose . . . . . . . . ; and until a transfer made by or under any such law takes effect, railways shall remain within the purpose of the Government of the Federation, and Parlia ment shall, notwithstanding anything contained in Article 106, have exclusive power to make laws with respect thereto". This provision cannot but mean that railways shall remain a Federal subject until the Parliament makes a law for their transfer to the Government of a Province. There is no possibility contemplated by the provision, of railways being transferred to the Provinces or of their ceasing to be a Federal subject until a law is made by Parliament. To a similar effect is clause (1) of Article 224 which provides that all existing laws, etc., immediately before the Constitution Day shall, subject to adoptions, continue in force until altered, repealed or amended by the appropriate Legislature or other competent authority. Here again only one possibility of the existing laws being changed is contemplated; otherwise those laws remain in force. Another instance is to be found in Article 1‑77 which provides that until other provisions in that behalf are made by Act of Parliament, the provisions of the Third Schedule shall apply in relation to the Supreme Court and High Courts in respect of matters specified therein. 1n the same manner Article 54 and Article 87 which refer to the Speaker of National Assembly that the Speaker of Provincial Assembly, respectively, provides that whenever the Assembly is dissolved the Speaker shall not, by virtue of the dissolution, vacate his office until immediately before the first meeting of the Assembly after the dissolution. Similarly Articles 44 and 77, which relate to additional women members of Assemblies, provide that a woman who is a member of an Assembly at the time of the expiration of the period of ten years shall not cease to be a member until the Assembly is dissolved. Articles 152 and 168 provide that if the office of the Chief Justice becomes vacant or if the Chief Justice is unable to perform the duties of his office, those duties shall be performed by such one of the other Judges of the Court as the President may appoint as Acting Chief Justice until some person permanently appointed to the vacant office has entered on the duties thereof, or until the Chief Justice has resumed his duties. Clause (6) of Article 191 declares that a Pro clamation of Emergency, if approved by the Assembly, shall remain in force until it is revoked, or if disapproved, shall cease to operate from the date of disapproval. Article 150 (1) which refers to a Judge of the Supreme Court and Article 166 (2) which refers to a Judge of a High Court provide that a Judge shall hold office until he attains a particular age. And under Article 153 an Acting Puisne Judge shall be deemed to be a Judge of the High Court until the President revokes the appointment. The provision relating to the President for the interim period is Article 222, which provides that unless he dies, resigns or is removed earlier, he shall serve as President until a President elected under Article 32 has entered upon his office. A critical analysis of such duration provisions of the Constitution would show that they can be grouped under three categories‑ (1) where a particular functionary or institution has to perform certain functions until the happening of a certain event, the continuity of the period not being liable to earlier termination; (2) where a particular functionary or institution has to perform certain functions until the happening of a certain event but the liability to an earlier termination is expressly stated in the provision or necessarily follows from some other general provision ; (3) where no period is specified and from a certain date, which is expressed by the words "as from that day",‑as for instance Article 223 (3) and Article 225 (1) and (2) relating to the continuance of Speaker and Deputy Speaker, Article 226 (2) relating to person holding the office of a Minister, Advocate‑General or Auditor‑General, Article 227 (1) and (2) relating to the continuance of the Chief Justice and Judges of the Supreme Court and High Courts,‑a functionary is transferred to the corresponding office under the new Constitution, and the liability to termination of his functions follows from the transitory provisions read with some other provision. Articles 223 and 225 fall in the first category because neither in the general provision nor in these Articles themselves is any provision to be found for the dissolution of the temporary Assemblies functioning under these Articles. Within its own terms, Article 225 does not contain the, remotest suggestion that the Assemblies recognised by that article as Provincial Assemblies are liable to dissolution before the constitution of Provincial Assemblies under the provisions of the Constitution. Where the legislature intends an Assembly, elected for a term or an indefinite period which terminates on the happening of an event, to be liable to earlier dissolution it always says so, expressly or by necessary intendment, and we are not aware of any Constitution in the world with a Parliamentary form of government where the executive, in the absence of any such words, can claim the right of directing an earlier dissolution. If the intention had been that these interim Assemblies, were liable to dissolution by the Governor at will, the Article would have certainly said so and would not have departed from the language of the Proviso to section 11 of the Establishment of West Pakistan Act, 1955 which expressly made the interim Legislature, which was expected to function for only a few months, liable to dissolution by using the expression 'unless dissolved earlier', a substitute for 'unless sooner dissolved' of the Government of India Act, 1935, and the Constitution. The very fact, therefore, that in the case of the continuance of the Legis lative Assembly of West Pakistan as a Provincial Assembly of that Province the framers of the Constitution deliberately departed from the language of section 11 of the Establishment of West Pakistan Act, which was undoubtedly before them because clause (2) of Article 225 expressly refers to it, must be taken to mean that until the new Assembly had been constituted the existing Assembly was intended to be in dissoluble. In the case of the President for the transitional period, the makers of the Constitution found it necessary to say in clause (6) of Article 222 that a new President shall be elected by the National Assembly if, inter alia, the President was removed from office. If the general provision relating to the impeachment and removal from office of the President contained in Article 35 was thought to be automatically applicable to the President during the transitional period, it was not at all necessary to use the words 'removed from office in clause (6) of Article 222, and it would have been sufficient to state that "if a vacancy occurs in the office of the President elected under this Article, it shall be filled by a person elected by the National Assembly in accordance with the provisions contained in the Sixth Schedule". In the same manner if the existing Assemblies had been intended to be liable to dis solution, the Constitution makers must have used appropriate words to express that intention, and what more appropriate words could be thought of than the expression `unless sooner dissolved', which has been used in the constitutional instru ments of all the Commonwealth countries or the words `unless dissolved earlier' of section 11 of the Establish ment of West Pakistan Act, 1955. The absence of these words appears to us to be a clear indication of the in tention that the temporary Assemblies were not at all liable to dissolution by an act of the Governor. The pro vision in Article 226, which provides that a person holding office as Governor of a Province immediately before the Constitution Day, shall, as from that day, continue to hold that office until a Governor appointed under the constitution enters upon his office, which is considered by Mr. Brohi to be similar to that in Article 225, is hardly relevant, because though Article 226 does not say that a Governor may be dismissed earlier, or that he holds office during the pleasure of the President, the liability to dismissal is implicit in the words `until a Governor appointed under the Constitution enters upon his office for the President may at any time express his displeasure with a present Governor by merely appointing another Governor. The Governor's liability to removal, unlike the liability of the temporary Assembly to dissolution, must, thus, be said to have been clearly expressed in Article 226 (1). There is yet another reason for holding that Article 225 did not contemplate the dissolution of the temporary Provincial Assemblies, and that is, that while that Article provides by clause (3) the manner in v which a casual vacancy occurring in a Provincial Assembly may be filled, it says nothing bow that Assembly is to be reconstituted for the interim period, if it were dissolved I We cannot imagine that while the framers of the Con stitution were careful to provide for the filling of casual vacancies, they should have, if dissolution was intended, made no provisions for the reconstitution of the Assembly during the transitional period. Where a dissolution is con templated, the Legislature always provides for the reconsti tution of the Legislature as well as for the filling of casual vacancies that may occur, and we have yet to see a constitutional provision which permits dissolution but does not provide for reconstitution, though it makes a clear provision for the comparatively unimportant event of a casual vacancy. We may now consider the argument on which special emphasis was laid by each of the three learned counsels who appeared for the Central Government, namely, that Article 225 is subject to Article 83, which empowers the Governor to dissolve the Provincial Assembly. The point sought to be made is that a temporary Assembly functioning under Article 225 is a Provincial Assembly and that, there fore, it is liable to dissolution under the first clause of Article 83, which gives to the Governor the power, inter ant alia to dissolve the Provincial Assembly. It may be readily conceded that the words `Provincial Assembly' as used in some of the provisions of the Constitution do include references to temporary Assemblies functioning under Article

225. Though clauses (3) and (4) of Article 225 refer to such Assemblies as Provincial Assemblies function ing under clauses (1) and (2) of that Article, the latter clauses themselves describe these Assemblies as Provincial Assemblies. But from this it is not a fair inference that the whole of Article 83 applies to such Assemblies. That Article has to be read in its context, and when so read, it does not, by its own force, at all apply to temporary Provincial Assemblies. It will be noticed that Article 831 occurs in Chapter II of Part V of the Constitution which deals with the constitution, duration and procedure of the Provincial Legislature. This Provincial Legislature which is the creation of the Constitution itself is to consist of the Governor and one House to be known as the the Provincial Assembly. That Assembly is to consist of 310 members, including 10 women members for a period of ten years, but Parliament may by Act alter this number. Only persons possessing the qualifications mentioned in Article 78 can be elected to that Assembly and the persons who elect must possess the qualifications mentioned in Article

143. A further restriction on the composi tion of this Assembly is contained in clause (5) of Article 77, according to which until the 14th day of October, 1955, the number of members of the Provincial Assembly of the Province of West Pakistan elected by constituencies in the territory which, immediately before the commencement of the Establishment of West Pakistan Act, 1955, constituted the Province of Punjab, shall not be more than two‑fifths of the total number of members of the Assembly. Therefore, when Article 83 states that the Governor may summon prorogue or dissolve the Pro‑Assembly, the reference is to the Assembly the composition of which is defined by Articles 77 and 78 o fl the Constitution and this is apparent from clause (3) of that Article which fixes a term of five years for that Assembly. The temporary Assemblies functioning under X clauses (1) and (2) of Article 225, however, are differently composed, were elected in a different manner and do clearly not have a five‑year term. They are, therefore, not governed by by article 83 except to the extent that Article 225 itself provides. Thus Article 225 is essentially in the nature of a Proviso to the general provisions of the Constitution which relate to the composition and duration of future Provincial Assemblies. If the several Articles of the Con stitution on this subject, including the Article relating to interim Assemblies, are put together under one Article, the altered Article will read somewhat as follows:‑ X (1) There shall be a Provincial Legislature for each The Provincial Province consisting of the Governor and one Legislature. House to be known as the Provincial Assembly. (2) Each Provincial Assembly shall consist of 300, and for the first ten years further 10 women members who shall have the qualifications mentioned in Article 78 and shall be chosen in a general election from territorial constituencies to be delimited by the Delimitation Com mission, and in the cases of Special Areas, by the President. (3) The electoral rolls for the constituencies, delimited by the Delimitation Commission, shall be prepared by the Election Commission, and every person possessing the qualifications mentioned in Article 143 shall be en titled to be included in such electoral roll. (4) The Governor may summon, prorogue and dissolve the Provincial Assembly, and, unless sooner dissolved, a Provincial Assembly shall stand dissolved on the expiration of five years from the date of its first meeting; Provided that until such Assembly is constituted for the Province the existing Legislative Assembly of that Province shall exercise the powers and perform the duties of the Provincial Assembly of that Province. The function of a Proviso is thus stated by Crawford at pages 128‑129 of the 1940 Edition of Statutory Cons truction :‑ "While there is considerable similarity between an exception and a proviso‑each restrains the enacting clause and operates to except something which would otherwise fall within the general terms of the Statute there is a technical distinction between them, although even that is frequently ignored and the two terms used synonymously. The exception, however, operates to affirm the operation of the Statute to all cases not excepted and excludes all others exceptions: that is, it exempts something which would otherwise fall within the general words of the Statute. A proviso, on the other hand, is a clause added H to an enactment for the purpose of acting as a restraint upon, or as the qualification of the generality of the language which it follows. Some times, however, as a precautionary measure, it is used to explain the general words of the Act and to exclude some ground of mis‑interpetation which would extend it to cases not intended to be brought within its operation or preview." In order to decide whether a provision is or is not in the nature of a proviso or an exception, what has to be seen is the scope of the enactment, the object it was intended to achieve, the scheme of the enactment and the language used in, and the reasons for enacting the excep tional or special provision. The provision in Part XIII of the Constitution, in which Article 225 finds place, are described as temporary and Transitional, which means that these provisions are intended to hold good for only a short period and have been enacted with the object of facilitating the transfer of existing jurisdictions institutions, functionaries and laws to the permanent scheme of the Constitution. They are, therefore, from their very nature exceptional provisions and are governed by the principle that during the transitional period they must have full effect and opera tion even though such effect or operation be contrary to some general provision which is to be a permanent feature of the Constitution. Looked at in this manner, what Article 225 provides is that for the transitional period the existing Pro vincial Legislative Assemblies of both the Provinces are to continue as the Provincial Assemblies, and are to exercise the powers and perform the functions assigned to the Provincial Assemblies by the permanent provisions of the Constitution. If, therefore, the Governor's power to dissolve such Assem blies at will is inconsistent with the continuance of such Assemblies until the new Provincial Assemblies have been constituted under the Constitution, that ‑power must be held to have been excluded. This is the only way in which a conflict between Articles 83 and 225 can be avoided, and both the provisions can stand side by side. We have stated above that in the interpretation of constitutional instruments repugnancy is to be avoided and that the Court should endeavour to harmonize the different provisions so as to give due effect to each of them. If the argument in favour of the power to dissolve be accepted, Parliament would be liable to the accu sation that it had given with one hand what it had taken away with another. The true rule of construction in such cases is that where there are two sections dealing with the same subject‑matter, one section being unqualified and the other containing the qualification, effect must be given to the section containing the qualification. Mass v. Elphick ((1910) 1 K B 465, 467). This rule has sometimes been enunciated also in the form that where a general intention is expressed and also a particular intention which is incompatible with the General one the particular intention is considered an exception to the general one. Per Best, C. J.‑Churchil v. Crease ((1828) 5 Being 180). Mr. Brohi contends that Article 225 is not in the nature of an exception or a proviso, inter alia, to Article 83 in so far as the Governor's power to dissolve is concerned because the word `dissolved' or 'dissolu tion' is not used in the former Article. The Article, however, does not deal with dissolution at all; it invests the existing Assemblies with the powers and duties of a Provincial Assembly and directs them to exercise those powers and perform those duties until new Provincial Assemblies are constituted. It will, therefore, be a mere, surplusage for the framers of the Constitution to say that during the transitional period the Governor will have no power to dissolve such Assemblies, the exercise of such power having been clearly ousted by the words used. It is next urged that on this construction of the relative functions of Articles 83 and 225 the Governor, if he has no power to dissolve, would also not have the power to summon or prorogue the interim Assembly. The argument has no force because while the Governor's power to summon or prorogue is a necessary incident to the exercise of powers and performance of duties by the Provincial Assembly, the power to dissolve is not. On dissolution an Assembly, though its members may live and the institution may exist in the Consti tution, dies and ceases to be capable of exercising any powers or performing any duties. Therefore, if under Article 225 an Assembly has to exercise the powers conferred and perform the duties imposed upon a Provincial Assembly by or under the provisions of the Constitution, it is a necessary condition to the exercise of those powers and the performance of those duties that the Governor should have the power to summon and prorogue it as the occasion may require. This power is in no way negated by Article 225, whereas the power to dis solve being wholly inconsistent with the continued exercise of such powers and the performance of such duties must be held to have been excluded by that Article. Thus construed Article 83 would mean that the Governor has the power to summon and prorogue the temporary Assembly because it is the Provincial Assembly, but that he has no power to dissolve it because the existence of such power being incompatible with the continued functioning of such Assembly, it must be deemed to have been taken away by Article

225. Interpreted in that manner the two Articles present no repugnancy or inconsis tency and can both stand together. The Governor would need the power to summon and prorogue an interim Assembly as well as a Provincial Assembly set up under Article 225, Article 83 gives him that power. An interim Assembly having been directed to function until a Provincial Assembly under the Constitution is constituted, the Governor would still require the power to dissolve the latter Assembly. Article 83 makes provision for such power. It cannot, therefore, be said that three is any superfluity in the words of Article 83 (1); nor can it be said that because the Governor has the power to dissolve a provincial Assembly, that power must be capable of being exercised in respect of the temporary or, as Mr. Brohi described it, the ad hoc Assembly, the duration of which is fixed by the Constitution in a manner which A necessarily excludes the power to dissolve. On that construc tion of Articles 83 and 225 there can be no conflict between the two because whereas the Governor has the general power to dissolve a Provincial Assembly, the exercise of that power is negated by a special provision which has operation for only a limited time. Article 83 in respect of the Governor's power to dissolve is thus subject to Article 225 and there is no repugnancy between them. But assuming for the sake of argument that there is a conflict between those two Articles, in that case Article 83 which is general must yield to Article 225 which is particular, on the maxim, "Generalia specialibus non derogant" (general) words or provisions do not affect special words or provisions), that is, if there be a conflict between a general provision and a particular or specific provision, the latter must override the former. We have, so far, negated the Governor's power to dissolve the temporary Assembly on the construction of Articles 83 and 225, without seeking any external aid in discovering the inten tion of legislature. If it be borne in mind, a point most emphasized by Mr. Brohi himself, that a dissolution necessarily implies an appeal to the electorate by a fresh election and that on no democratic principle can the power to dissolve vest in the executive unless the exercise of that power is followed by an appeal to the people, the reason for the non‑dissolution of the temporary Assemblies will be much more apparent. In the United Kingdom a writ of dissolution is invariably accompanied by a summons to the newly‑elected Parliament, and it is not possible to conceive of dissolution without a fresh election being held. Now what is the present position in out Consti tution? If the power to dissolve the temporary Provincial Assembly vests today in the Governor, it must have vested in him on the date when the Constitution came into force as he derives this power from the Constitution itself. If, therefore, an Assembly can be dissolved today, it could also be dissolved on 24th march 1956. But can it be seriously contended that by dissolving the Assembly on that day an effective appeal to the electorate could have been made? The electorate which had elected the present Assembly in West Pakistan became functus officio and no electorate exists under the Constitution ready to express its confidence in the Chief Minister who advised the Governor to dissolve. The learned Attorney General and Mr. Brohi both assert that the Constitution contains the requisite mechanism to bring a new Assembly into existence within six months of the dissolution and in this connection they both rely on Article 141 of the Constitution which provides that whenever a Provincial Assembly is dis solved a general election for the reconstitution of the Assembly shall be held not later than six months from the date of the dissolution. Article 84 which requires that there shall be at least two sessions of a Provincial Assembly in every year, and six months shall not intervene between the last sitting of the Assembly in one section and its first sitting in the next session has also been referred to and particularly emphasized by the learned Advocate‑General of East Pakistan. Mr. Manzur Qadir, however, as already mentioned, contends that neither of these Articles is attracted to the situation resulting from a dissolution during the interim period. We shall presently show that Article 141 is not at all applicable to and does not contemplate the dissolution of a Provincial Assembly during the transitional period and that this Article is being invoked by counsel, who claim for the Governor a power to dissolve, in order to avoid the absurd position that would arise, if that provision be held not to be applicable during that period, because in that case there would be no Provincial Assembly in existence and the administration shall have to be carried on, contrary to the doctrine of responsibility, by the Governor or the Chief Minister as the Governor may choose, and this state of affairs, there being ex hypothesi no obligation on the Election Commission to bring a new Assembly into existence within six months, could continue for an indefinite period. And even if the Election Commission felt bound in such a case to hold a general election for the constitution of a new Assembly, it would certainly take more than six months, may be more than a year, to set up the necessary machinery for the holding of a general election. Thus if it be assumed that Article 141 applies to such a situation, it would be impossible to make they further supposition that the framers of the Constitution expected that the necessary machinery for the holding of a general election would be ready and the elections held within six months. The first step envisaged by the Constitution to be taken for the constitution of a Provincial Assembly was that Parliament had to provide by Act whether elections to the Assemblies shall be held on the principle of joint electorate or separate electorate. Under Article 145 such Act could only be passed after the views of the Provincial Assemblies had been ascertained and considered by Parliament. The learned Attorney‑General originally took up the position that Parliament was bound by Article 145 and that it was in cumbent on it to pass the Act contemplated by that provision after ascertaining and considering the views of the Provincial Assemblies, but on its being pointed out to him that the words used in the Article is 'may' and not `shall' and that by reason of Article 143 the Election Commission could prepare the electoral rolls and the Delimitation Commission delimit the constituencies, even if no such Act was passed, he admitted that, unless a law to the contrary was passed by Parliament, elections under the Constitution could be held on the basis of joint electorate. This may be, and probably, is, the correct legal position. The question, however, however, is whether the framers of the Constitution ever intended that no law under Article 145 need be passed and that the elections be held on the principle of joint electorate? The answer to it must be in the negative, for the simple reason that the question whether electorates should be joint or separate had for years past, perhaps ever since the establishment of Pakistan, been a keenly controversial issue which had actively agitated the minds of the politicians and opinion on the question was so sharply divided that even at the time of the framing of the Constitution, the Constituent Assembly found itself unable to decide whether elections to the new Assemblies were to be on the system of joint or separate electorates, and left it to Parliament subsequently to deter mine the issue. It must therefore, be assumed that the Constituent Assembly did intend that Parliament was to determine whether elections were to be held with joint or separate electorates. It is obvious that if the intention was that the issue of joint or separate electorate should be determined by Parlia ment, no constituency could be delimited by the Delimitation Commission and consequently no electoral rolls for the Constituencies determined by that Commission could pre pared before that question had been decided. It was only when action under Article 145 had been taken that the Delimitation Commission could take in hand the duty of delimiting constituencies and it was after such constituencies had been delimited that the Election Commission could undertake the work of preparing electoral rolls for these constituencies. And if the Indian practice had to be followed, a long and elaborate People's Representation Act had to be passed before the Election Commission could embark on its work. And then under Article 147 the President by Order had to make such provision for the representation of the special areas in the National Assembly and the Provincial Assembly of West Pakistan as he thought fit. Unless the President acted under this Article, the number of constituen cies for the National Assembly and the Provincial Assembly of West Pakistan in the areas which were not Special areas could not be determined and, therefore, constituencies in West Pakistan could not be delimited. This Article is indicative of the haste with which the Constitution was enacted. The provision has been taken to mean that the number of seats for the Special Areas has to be determined by Parliament by Act as is apparent from the provisions of the Electoral Rolls Act, 1957, but this view is based on an obvious misapprehension because under the Article it is the President who is to provide by Order how Special Areas are to be represented in the National Assembly and the Provincial Assembly of West Pakistan. The Article gives no indication of the principle on which the number of seats is to be allotted to the Special Areas by the President and this presents an obvious lacuna, because strictly speaking the President may determine for such power is given to him, any number of seats for the Special Areas. And if the Article gives that power only to the President, then Parliament does not possess that power, though if Parliament determines by Act the number of seats for the Special Areas and the President assents to that Act, the constitutional requirement may be said to have been satisfied. But be that as it may, the fact remains that some step, under Article 147 had to be taken before the Delimitation Commission could proceed with the work of delimitation and the Election Commission with the work of preparation of electoral rolls. And if it be supposed, as it must, that it would take time for the President to appoint a Delimitation Commission and an Election Commission, and it would take considerable time for those Commissions to employ the necessary staff or to borrow the services of such staff from the Provinces and to collect and collate the requisite information before either of them could embark on its actual work, he would be a bold man indeed who could assert that the Con stituent Assembly expected that all this work could finish and new Assemblies set up within a period of six months from the Constitution Day. Even the most optimistic of men, unless his optimism amounted to madness, could not expect this preliminary work to be completed within a period of six months. And if the time that the polling and counting would take be added to this period, the reconstitution of the new Assemblies within a period of six months becomes an utter impossibility. The position, as appears from the inquiry made from the Election Commission, seems to be that such Assemblies are not expected to be constituted before July next though both the Delimitation Commission and the Election Commission were appointed in June last year. This legal and factual position has to be considered in construing Article 141 of the Constitution and we' consider it to be absurd for anyone to suppose that that Article was intended to apply to the dissolution of the temporary Assemblies, and if that Article does not apply to such a situation and the Election Commis sion is not bound to hold general elections within six months of the dissolution of such Assemblies, there is no time limit in the Constitution within which the first National Assembly and the Provincial Assemblies have to be set up under the Constitution. And if that Article does not govern the situation arising from the dissolution of a temporary Assembly, such dissolution could not but lead to the establishment of a completely irresponsible Government by the President or Prime Minister at the Centre or by the Governor or the Chief Minister in a Province for an indefinite period, a Government which not only uproots the foundations of our Constitution but is also opposed to be Preamble which states, inter alia, that the new State is to exercise its powers and authority through the chosen representatives of the people, It seems to us, therefore, that it was for this reason that Article 225 was worded as it is, and the Constituent Assembly considered it necessary to provide that until a new Provincial Assembly comes into existence, the Legislative Assembly of the Province existing on the day of the commencement of the Constitution was to continue to exercise the powers and perform the duties of the Provincial Assembly under the Constitution. It was next contended by the learned. Attorney‑General that Article 230 of the Constitution, particularly clauses (3) and (4) of that Article, assume that the existing provisional Assemblies are liable to dissolution. That Article is as follows:‑- "230‑(l) The provisions of the Constitution relating to the Federal Consolidated Fund, or a Provincial Consolidated Fund, and the appropriation of moneys from either of such Funds, shall not apply in relation to moneys received or raised, or expenditure incurred, by the Federal Government or the Government of a Province in the financial year which includes the Constitution Day or in the next succeeding financial year; and notwithstanding anything in the Con stitution any expenditure incurred during those financial years by the Federal Government or the Government of a Province shall be deemed to have been validly incurred if it is incured in accordance with the provisions of the Government of India Act, 1935. (2) For the purposes of clause (1), the provisions of the Government of India Act, 1935, and of any statement, demand, schedule or other document made thereunder, shall have effect in relation to any time after the Constitution Day subject to the modification that references therein to the holder of any office, or to anybody, service or other matter, shall be construed as references to the holder of the corresponding office, or, as the case may be, to the corresponding body, service or matter, under the Constitution. (3) For the purposes of clause (1), if at any time when the National Assembly stands dissolved, the President is satisfied that circumstances exist which render such action necessary, he shall have power to authenticate a schedule of authorized expenditure under the Government of India Act, 1935, although no Annual Financial Statement has previously been laid before the Assembly, and although no grants have been made by the Assembly. (4) Clause (3) shall apply to the Governor of a Province, subject to the modification that reference therein to the President and the National Assembly shall be construed as references to the Governor and the Provincial Assembly, respectively. (5) In relation to accounts which have not been comple ted or audited before the Constitution Day, the Comptroller and Auditor‑General shall exercise the functions of the Auditor‑General of the Dominion of Pakistan; but reports relating to the accounts of the Federal Government shall be submitted to the President, who shall cause them to be laid before the National Assembly, and reports relating to the accounts of a Province shall be submitted to the Governor, who shall cause them to be laid before the Provincial Assembly. (6) Notwithstanding anything in the Constitution all taxes and fees levied under law in force, immediately before the Constitution day, shall continue to be levied until they are varied or abolished by Act of the appropriate legis lature". The Article has to be read with Articles 220, 221 and 222 (4) of the Constitution which are:‑ "

220. This Article and Articles 218, 219 and 222 shall come into force at once, and the remaining provisions of the Constitution shall come into force on the Constitution Day.

221. The Government of India Act, 1935 and the Indian Independence Act, 1947, together with all enact ments amending or supplementing those Acts, are hereby repealed: Provided that the repeal of the provisions of the Govern ment of India Act, 1935, applicable for the purposes of Article 230 shall not take effect until the first day of April 1957. 222 (4) The Constituent Assembly shall a fix day to be the Constitution Day, and the person elected as President under this Article shall, after taking an oath or affirmation in the form set out in paragraph 1 of the Second Schedule, enter upon his office on that day." In the original draft the Proviso to Article 221 and clauses (3) and (4) to Article 230 did not occur and were added on the same day in the course of the reading of the Bill at the instance of the Government, without any reason for the amendment being stated and without any discussion. What Article 221 provides is that the Government of India Act, 1935, and the Indian Independence Act, 1947, together with Acts amending or supplementing them, shall be repealed from the Constitution Day, but that those provisions of the Government of India Act which are made applicable by Article 230 shall not be repealed until the 1st day of April 1957. It is, therefore, possible to take these Articles to mean that even those provisions of the Government of India Act which are allowed to remain in force by Article 230 shall stand repealed from the 1st April 1957, though the true construction of this proviso appears to be that until the date mentioned the provisions of the Government of India Act relevant to the purposes of Article 230 shall continue to remain in force. Since the proviso expressly refers to Article 230 and its purposes, it has to be read subject to the provisions of that Article which is later and being more specific will, in case of repugnancy, by virtue of the words "and not withstanding anything in the Constitution" override Article

221. Now if we look at Article 230, what it provides w, is that the provisions of the Constitution relating to the Provincial Consolidated Fund and the appropriation of moneys from that fund shall not apply in relation to moneys received or raised or expenditure incurred by the Government of a Province in the financial year which includes the Constitution Day or in the next succeeding financial year. The Constitution Day had to be fixed under clause (4) of Article 222 by the Constituent Assembly and was in fact fixed as 23rd March 1956. But that Assembly could equally well have fixed some other day, say 1st April, in the financial year 1956‑57 as the Constitution Day and in that case, though the Constitution Day fell only ten days later, the saved provisions of the Government of India Act would have continued to remain in force until 1st April 1958, by which date elections could perhaps have been held and the power to dissolve vested in the Governor. To provide for any such event it was necessary to insert a provision like clauses (3) and (4) to Article 230, and if such event had happened the proviso to Article 221 would not have had effect of repealing the relevant provisions of the Government of India Act until the 1st day of April 1958, and Article 221 would have been overridden protanto by the provisions of Article

230. It cannot, there fore, be held that the dissolution contemplated by clause (3) of Article 230 was a dissolution before the 1st April 1957. In any case we cannot spell out of the unequivocal provisions of Article 225 a power to dissolve by invoking in an indirect and circuitous manner the provisions of Articles 222 and

230. Further, it is the case of both the Attorney‑General and Mr. Brohi that general elections could have been held under the Constitution within six months of the commencement of the Constitution, and on that assumption it was necessary to provide, as clauses (3) and (4) to Article 230 do, for a contingency where the National Assembly or a Provincial Assembly might have stood dissolved shortly after its constitu tion, because if the elections were completed, as it is contended that they could be, say by the 23rd September 1956, there would still have been more than six months within which the President or the Governor could exercise the power to dissolve under the Constitution. We cannot, therefore, hold that clauses (3) and (4) of Article 230 read with Article 222 necessarily refer to the power to dissolve any of the temporary assemblies. On the contrary, if there be any indication elsewhere in the Constitution that the interim Assemblies were not liable to dissolution, it will be found in clause (2) of Article

234. That Article empowers the President, for the purposes of removing any difficulties, to direct by Order that the pro visions of the Constitution, during such period as may be specified, shall have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient. The proviso to that clause imposes on the President the limitation that he shall make no Order under clause (i) after the first meeting of the National Assembly constituted after the general elections held for the purposes of that Assembly. And under Article 223 the interim National Assembly has to function until the first meeting of the National Assembly constituted under the Constitution. Thus the period during, which the President may adapt the Constitution is specified it com mences with the Constitution Day and ends when the first meeting of the newly‑constituted National Assembly is held. The second clause of Article 234 imposes on the President the important obligation that he shall cause every adaptation Order to be laid before the National Assembly and that Assembly can by Act amend or repeal such Order. It is; thus, clear that the President's power to make adaptation Orders during the transitional period is liable to be controlled by the National Assembly. Therefore, if there be no National Assembly in existence as would be the case when it is dissolved, the President will not be able to comply with the obligation of laying the Order before the National Assembly and accordingly he will be incompetent to make any such Order. Mr. Manzoor Qadir suggests that the word National Assembly in clause (2) is used in a general sense and is wide enough to include the National Assembly that may be constituted under the first general elections as well as any other provisional Assembly that may be constituted by the President for the transitional period. There is however, no machinery by which another provisional National Assembly may be constituted and, therefore, the reference in clause (2) to the National Assembly can only be either to the existing temporary National Assembly or to the National Assembly that may be constituted under the Constitution. On that construction of this clause if the President were to dissolve the existing National Assembly he would, during the indefinite period that may elapse before the constitution of an Assembly after the first general elections, be assuming for himself powers which Article 234 never intended to confer on him. Article 234 is a vital Article in the Constitution, and if it proceeds on the continued existence of the interim National Assembly throughout the transitional period. it would tend to show almost conclusively that that Assembly is not liable to dissolution. And if dissolution of the interim National Assembly had been intended, there would have occurred in Article 234 some such provision as the proviso to clause (2) to Article

193. This being the position as regards the National Assembly set up under Article 223 of the Constitution, the case for the continued existence of the Provincial Assembly during the transitional period is a fortiori stronger because Article 225 enjoins the temporary Assemblies to perform the duties of the Provincial Assemblies constituted under the Constitution and to exercise the powers of those Assemblies. If Mr. Manzur Qadir's contention regarding the replace ment of the existing National Assembly by another Assembly during the transitional period be rejected, there is another provision in the Constitution which clearly shows that the existing National Assembly is not liable to dissolution, and that is clause (6) of Article

222. That Article provides that "if a vacancy occurs in the office of the President elected under this Article by reason of his death, resignation or removal from office it shall be filled by a person elected by the National Assembly in accordance with the provision contained in the Sixth Schedule." Now conceiving a case where the President has dissolved the National Assembly and then has himself resigned his office, there is no provision in the Constitution by which another President may be ap pointed, with the result that on the happening of such a contingency the Constitution must cease to function, because Article 36 itself which enables the Speaker to act for the President contemplates an immediate election of the President and not at all a case where the machinery for the election of the President does not at all exist. Clause (6) has been referred to in the course of arguments in some other connection by the learned counsel who have contended that the power of dissolution of temporary Assemblies exists, but, in our opinion, that is a provision which conclusively shows that the framers of the Constitution ‑ intended the National Assembly to function without any break throughout the transitional period. Even if Mr. Manzur Qadir's contention that the existing National Assembly can be substituted by another Assembly to be chosen in a manner to be prescribed by the President under Article 234 be accepted and it be supposed that after dissolving the National Assembly the President and the Speaker are both involved in an inability, there will be a standstill of the constitutional machinery. In the United States of America the Succession Act provides that in case of the removal, death, resignation or inability of both the President and Vice‑President, the eligible members of the Cabinet shall succeed in order of the seniority of their position, i. e., the Secretary of State, the Secretary of the Treasury, the Secretary of War, and so on, down to the junior member of the Cabinet the Secretary of Labour. Our Constitution contains no such provision, with the result that if subsequently to the dissolution of the existing temporary National Assembly the President and the Speaker resign or become subject to some inability, the vacuum thus caused cannot at all be filled, and this again indicates that the Constituent Assembly considered it absolutely essential for the National Assembly to function throughout the transitional period, so that if the President resigned it could elect another President, and if the President and the Speaker were both subject to some disability necessary steps could be taken by the National Assembly to fill the vacuum. For these reasons, we are of the view that the Governor has no power to dissolve the Provincial Assembly functioning under Article 225, and in accordance with this opinion the reply to the Reference is in the negative. As the Central Government chose to put forward a definite view which has been successfully controverted by Sardar Abdur Rab Nishtar and Mr. Nazir Ahmad Khan, we direct that Government do pay to the Leader of the Opposition in the National Assembly and the Leader of the Opposition in the Provincial Assembly of West Pakistan a sum of rupees five thousand to be shared half and half by them. A.H. Reference answered.