The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Munawar Ahmed Mirza, J.

(a) Constitution of Pakistan (1973), Art. 59

Election of Senate—House of Parliament and Provincial Assemblies (Elections) Order, 1977 was meant for “only’ for one time action to cater “forthcoming” election held on first occasion during martial Law whereby authority to choose representative for carrying out functions of the State was to be restored by causing resultant withdrawal of martial Law—Objective for promulgation of Houses of Parliament and provincial Assemblies (Elections) Order, 1977 which was only for “forthcoming elections” having been achieved, same automatically become inoperative after the first general elections of 1985.

When entire President’s (Post-Proclamation) Order 5 of 1977 is scrutinized it yields towards the unrebutable conclusions that same was meant for “only” for one time action to cater “forthcoming” election held on first occasion during martial law whereby authority to choose representatives for carrying out functions of the State was to be restored by causing resultant withdrawal of Martial law. {p. 584] A

Every provisions of P.O. 5 of 12977 individually or collectively converges towards the proposition that said legal instruments/statute had fixed object circumscribed by actual tenure of the law, which on the happening of specified event, would become practically ineffective and rendered infructuous. Therefore, said legal instrument by no stretch could be extended beyond its life which automatically after convening joint sitting and withdrawal of proclamation. [p. 584] B

When a legislative instrument has been enacted for specified object, fixed period, or has been made contingent upon happening of future event, then on the expirty of such period, accomplishment of specified object or happening of contingency or future event, said legislative instrument would be rendered nugatory and automatically ceased to be operative. Thus, protection clause, obviously, can neither extend, whether impliedly or expressly, the prescribed tenure nor can it enlarge life span of any legal instrument. [p. 585] C

Except when conscious steps are taken by amending “The Constitution” or re-enactment of law after fulfilment of object or expiry of period, same of period, same cannot be stretched forward or extended by any protection beyond specified limit or event. Therefore, invoking protection clause, life/tenure can always constitute a material and important factor, which cannot be lightly ignored or overlooked. [p. 585] D

Except details with regard to provision of “The Constitution’ which had revived none of the events or processes specified in P.O. 5 of 1977 can possibly be repeated. They have certainly had one time action which materialized and concluded by convening joint sitting of two Houses of Parliament and revocation of Proclamation. Neither Chief Martial Law Administrator is conceived in the Constitutional set up nor his appearance to address the Assembly cold be dreamed. Similarly, provision relating to administering oath under P.O. 5 has been rendered nugatory, redundant and inconsistent with Constitutional provisions. Therefore, for all intents and purposes, objective for promulgation of P.O. 5 which was only for “forthcoming election”, was achieved and it automatically became inoperative when after the first general election of 1985, the elected Body passed Constitution (Eighth Amendment) Act on 11th November, 1985 and proclamation was withdrawn through Proclamation of withdrawal of Martial Law, dated 30th December, 1985. [p. 587] E

Presidential Orders promulgated during said period, which were otherwise operative at the time of Revival of Constitution of 1973 Order, 1985, had been protected as valid legislative instruments by virtue of Article 270-A of the Constitution. [p. 587]

(b) Constitution of Pakistan (1973), Arts. 59, 62, & 63

Election to Senate—Seats reserved for specialized field—Standard of section—Principles.

The Constitution mandates that certain seats be reserved for specialized field, the standard for selecting such person must be kept considerably higher than merely normal or high as opined in the above reports. If marked distinction is not kept in view, while considering reserve seats then perhaps the Constitutional intent of having people of eminence pertaining to specified fields shall be completely frustrated. [p. 590] G

In the present case candidate for election of Senate was enrolled as Advocate of Supreme court in year 1958. He had ben elected at different occasions as Secretary of Lahore high Court and District Bar Associations ad while still practising got elected as member of Provincial Assembly and Speaker of Assembly. He was also appointed Minister in the Provincial Cabinet and Advisor to Governor. A list of reported cases wherein he had appeared before the superior Courts was also furnished. The serious objections raised against the candidate mainly pertained to lack of practical knowledge in the profession of law and failure to attain distinction in the professional field which may constitute eligibility against reserved seat of Senate. The above controversy could be looked into from variety of different angles. Details on record disclose long standing of candidate in the profession. His representative capacity acquired amongst lawyer’s fraternity, reflected distinction and popularity which apparently led to success in the Election of Provincial Assembly, thus, making further head-way in the career could not be conveniently lost sight of and outrightly ignored. He, undoubtedly, possessed necessary educational qualification duly recognized within the country and abroad. Therefore, by all standards the candidate possessed suitable legal background and qualification for nomination as member against seat reserved for “Professional”. Even in the absence of Article 5 of P.O. 5 of 1977 as amended by P.O. 16 broad principles on liberal construction required considerably higher standard would be needed for person desirous to obtain membership in Senate against reserved seats. [p. 590] H

The dictionary meaning also suggest that professional should be skilled and sufficiently competent as regards respective occupation. Therefore, it could be safely presumed that to cross threshold, the professional must have country-wide reputation and recognition. [p. 590] I

Thus, reasonably high standard in their respective professional field or specialized category must, necessarily, be expected from candidate against reserved seat in the Senate. The political parties while nominating candidates are obviously bound to obey the Constitutional intent. [p. 591] J

The candidate, therefore, was a person capable of serving the objective which are contemplated by “Professional” appearing in Article 59 of “The constitution”. Record amply disclosed that he had a background of handling matters before superior Courts of the country. Some of the reported judgments suggest enunciation of important aspect of law. Additionally, attainment of status in the profession, which caused his popularity amongst the lawyers and public had caused an opportunity of being elected as Member of the Provincial Assembly. He, undoubtedly, owed his success and bright career to solid professional background. It may be true that while filing nomination papers, his professional engagements may not be very hectic. But requirement for such nomination presupposes “one time attainment” of considerably high status whereby his services in profession and society were recognized. [p. 591] K