MUHAMMAD AKRAM SHEIKH, ADVOCATE vs FEDERATION OF PAKISTAN and others

ORDER

1. ' We have been called upon by an application somewhat unusual in nature, to

(i) clarify the full and correct implications of our own detailed judgment in Civil Appeals Nos. 314, 315, 316, 317/88 and C.Ps. Nos.392-R and 393-R/1988;

(ii) proceed in contempt against those who are deliberately misinterpreting it to derive political advantage out of it;

(iii) end the legal chaos and constitutional crisis into which the country has been plunged.

2. ' What is more surprising is that such a need has arisen in respect of a judgment which is of affirmance, that is, a judgment which maintains and upholds the judgment of the High Court and does nothing more than record additional grounds and reasons therefor.

3. ' The findings recorded by the High Court and affirmed by this Court and relatable to the reliefs claimed in the Constitution Petitions are the following:

(i) the orders of the President and Governors dated 29th/30th May, 1988 dissolving the National and Provincial Assemblies respectively were without lawful authority;

(ii) formation and the functioning of the Care-taker Cabinet without a Prime Minister was in violation of the Constitutional requirments on the subject. The High Court as well as this Court refused to give a declaration or relief in respect of following matters:-

(i) That the National Assembly and the Provincial Assemblies unlawfully dissolved on 29/30-5-1988 continue to exist in the eye of law and the Constitution and that they should be allowed to function unimpeded.

(ii) That the Cabinet headed by Mr. Muhammad Khan Junejo, as also the Chief Ministers and Ministers in the Provinces continue in the eye of law to exist and should be allowed to function accordingly.

(iii) All steps taken, appointments made by President during the period after 29-5-1988 were without lawful authority and of no legal effect.

(iv) Direction to appoint a properly constituted Care-taker Cabinet with a Prime Minister.

(v) Stop the General Elections from taking place, due to take place on 16th November, And 19th November, 1988.

4. ' The impugned Press Release issued by the executive, that is the Fedeal Government while interpreting our judgment recites as follows: "Consequently the actions taken, orders passed or appointments made after 29th May, 1988 upto 2nd December, 1988 by the President which were required to be taken, passed or made on the advice of the Prime Minister were illegal. Such actions, orders and appointments have to be regularised in accordance with the provisions of the Constitution and therefore all Government offices, Departments, the Registrars of the High. Courts and Supreme Court are requested immediately to contact the Ministry of Law and Justice with regard to such actions, orders and appointments taken, passed or made by or in the name of the President from 29th May to 2nd December, 1988 so that these are regularised by taking appropriate steps in accordance with the Constitution in the light of the judgment of the Supreme Court. It is further advised that all such appointees may suspend the performance of their official duties till their appointments are regularised or reaffirmed by the President on the advice of the. Prime Minister. Certain legislative measures may also be required to be taken after carefully considering the implications of the judgment of the Supreme Court."

5. ' Mr. Yahya Bakhtiar, the learned Attorney-General, has appeared today to argue the matter and stated that the petitioner has no locus standi in the matter. Additionally, the learned Attorney- General stated that such a question, as has been raised by the petitioner, namely, a clarification and also proceedings in contempt against the functionaries of the Federal Government, cannot be taken in the same petition. He has also pointed out to us that the Federal Government is considering the further action to be taken in the matter in accordance with law and the Constitution.

6. ' The Court had issued notice only in respect of the petition seeking clarification of our judgment and not in the application for taking proceedings in contempt against the functionaries of the Federal Government.

7. ' We consider that the petitioner has a locus standi in the matter.

8. ' The portion of the Press Note reproduced above does not appear to correctly reflect our judgment in so far as it states that the consequence of the judgment is that actions taken, orders passed or appointments made after 29th May 1988 upto 2nd of December, 1988 by the. President which were required to be taken, passed or made on the advice of the Prime Minister were illegal and required B regularization and affirmance awaiting which the appointees should suspend the performance of their official duties. Such a relief had been asked for from the Court but was not granted. The findings on all the matters in controversy were recorded to remove all doubts and ambiguities with regard to distribution of functions and powers under the Constitution for guidance in the future.

9. ' In case the Federation of Pakistan wants to seek a different conclusion, it is open to it to bring appropriate proceedings before this Court which will be considered on merits.

10. ' We, therefore, direct that the portion of the Press Note reproduced above should stand deleted and be taken not to have been issued at all