The Constitution of Pakistan, 1973 Developed by Zain Sheikh

(a) Government of India Act, 1935, Sections 3, 6, 32 & 102
Constitution of Pakistan (1973)Articles –,–,75 & —

I will now take up issue no.2, which relates to legality or otherwise of the Public and Representative Offices (Disqualification) Act of 1949. The argument of Mr. Siraj is that this Act is bad on three grounds :

1. That the assent of the Governor-General was necessary, and as it has not been given in this case, this legislation has not become an Act yet.

2. That the Act does not relate to any of the matters mentioned in Lists I and III of Seventh Schedule,

3. That the act cannot be given retrospective effect, and has not been so given.

Coming to the question of the assent, the argument of Mr. Siraj is that, under section 32 of the Government of India Act, 1935 (as adapted by the Pakistan (Provisional Constitution) Order 1947), when a Bill has been passed by the Federal Legislature, it shall be presented to the Governor-General for his assent, and it does not become an Act unless the Governor-General has given his assent to it.

It is clear that the Constituent Assembly has the powers of the Dominion Legislature as well as of the Federal Legislatures. As the Federal Legislature it can only exercise powers given to the Federal Legislature under the Government of India Act, 1935, but as Dominion Legislature the powers of the Constituent Assembly to make laws for the Dominion are unlimited. It is admitted that this Act was passed by the Constituent Assembly as the Dominion Legislature and not as the Federal Legislature. There is nothing in subsection (3) of section 6 of the Indian Independence Act to show that the laws passed by the Dominion Legislature required the assent of the Governor-General. All that this clause says is that in case where the assent of His Majesty may be necessary, it shall be given by the Governor-General in His Majesty’s name. Clause (2) of section 6 very definitely says that no law and no provision of any law made by the Dominion Legislature shall be void or inoperative on the ground that it is repugnant to any law, including the Indian Independence Act itself. The argument of Mr. Manzoor Qadir, is that its provision in section 6 would make the Act valid even if there existed any provision in any law which required the assent of the Governor-General. I have no doubt in my mind that there is no limit imposed upon the Legislative powers of the Constituent Assembly sitting as a constitution making body No assent of the Governor-General was, therefore, necessary Mr. Siraj has further referred to section 102 of the Government of India Act, 1935, which says that in case of an emergency, the Federal Legislature can make all laws irrespective of the fact whether the subject is included in any of the Lists of the Seventh Schedule to the Government of India Act, and argued that on 30th August 1948 an emergency was declared under section 102 of the Government of India Act, and therefore, the Federal Legislature could pass the present Act also as an act of the Federal Legislature which will require the assent of the Governor-General. Apparently, what Mr. Siraj wants me to hold is that, because at the time, the Federal Legislature had the power to legislate the present Act, it must, therefore, be taken to have been passed by the Federal Legislature. This, however, is against the admitted facts that the Act was passed by the Constituent Assembly as the Dominion Legislature and not as the Federal Legislature.

Coming to the second objection of this subject not being included in the Lists, here again, the otherside has relied on the provisions of section 6 of the Indian Independence act, which have been reproduced above, and argued that no objection could be taken to the powers of the Dominion Legislature on the ground that the subject is not included in any of the Lists. There section clearly says that the powers of the Dominion Legislature are unlimited to make any laws. This objection also therefore fails:

Coming to the third objection, a perusal of the Act itself shows very clearly that it was given retrospective effect. The language used in the Act itself is :

“It shall come into force at once and shall be deemed to have taken effect on the 15th day of August, 1947. ”

The words used leave no room for doubt, and it is clear that the Act was intended to be made retrospective and it has been so made. Act was intended to be made retrospective and it has been so made. The question, whether this act was ultra vires, was also raised in the matter of Khan Iftikhar Hussain Khan of mamdot, reported in 1950. The All-Pakistan Legal Decision at page 12 , where the learned Judges have held that the assent of the Governor-General was not necessary and the Act was not ultra vires the powers f the Constituent Assembly. My finding on issue no. 2 is therefore in the negative.

Issue No. 7 – Section 6 of the Act says :

“Any order of the Governor-General under section 3 shall be final and shall not be called in question in any Court” .

It is conceded by Mr. Manzoor Qadir that this suit is not barred, as the Court has got the power to go into the question whether the order passed by the Governor General is in exercise of the powers given to him under section 3 of the Act or has been passed beyond jurisdiction, that is to say, that the order passed could not be so passed under the provisions of section 3 of the Act. My finding therefore is that the suit is not barred.

Issue nos. 3,4, and 5, — These are connected issues and relate to the question whether the Special Court of Inquiry set up by the Governor of Sindh under the Sind Ordinance II of 1948 can be deemed to be a Tribunal set up for the purposes of the Public and Representative Offices ( Disqualification) Act, 1948, so that the report made by it can be made the basis of the disqualification order. Mr. Siraj has referred to the words :–“judicially found guilty” occurring in the Preamble of the Act, and argued that the proceedings held by the Special Court of Inquiry set up under the Sind Ordinance II of 1948 cannot be called “judicial proceedings”. I have already, while discussing Issue No.1, said that the proceedings in this case were judicial, irrespective of the fact that the Court had no power to inflict any penalty or to enforce its orders.

The argument then is that the word “misconduct” has been defined in the Public and Representative Office (Disqualification) Act, while in the Sind Ordinance II of 1948, the words maladiministration” and “gross misconduct” appearing in the Schedule have not been defined, and therefore, the finding of the Special Court of Inquiry constituted under Sindh Ordinance II of 1944 cannot be a finding with respect to misconduct as defined in the Public and Representative Offices (Disqualification) Act, 1949. It is true that the Ordinance does not define these words and it does not say that “misconduct” will include “wilful maladministration” The words used in the Schedule, however are maladministration” and “gross misconduct”. The charge of gross misconduct is undoubtedly a more serious charge than a mere misconduct. There is a further fact to be considered that in the plaint, the plaintiff has not said that he had not been found guilty of misconduct as defined in the Public and Representative Offices (Disqualification) Act, 1949. The only objection taken there is that the Tribunal was not set up “in this behalf”. The actual words in the plaint are :-

“The plaintiff was not found guilty by Federal Court or a High Court, but he was found guilty by a Special Court of Inquiry and which was not a Tribunal set up in this behalf, that is to say, for the purpose of “the Public and Representative office (Disqualification) Act, 1949”

Mr. Siraj has then argued that the Special Court of Inquiry set up under the Sind Ordinance II of 1948 was not a Tribunal setup in this behalf within the meaning of section 3 of the Act, and that the words “is found guilty” mean that the should be found guilty after this Act was passed. The relevant words in the section are :–

“Any person who is found guilty by a Tribunal set up in this behalf by …… a Governor of misconduct in, or in a matter relating to his office or capacity as a minister shall , upon the public notification of an order of the Governor-General in this behalf and for such period not exceeding 10 years, as the Governor-General may appoint in the order, be disqualified for being and for being chosen as a Minster…..”

The heading of this section is “DISQUALIFICATION FOR MISCONDUCT IN A PUBLIC OFFICE”. According to Mr. Siraj the words “is found guilty” mean “shall be found guilty” and not “shall have been found” and, therefore, if a person has been found guilty before the passing of the Act, his case cannot come within the purview of section 3. To me, however, it appears that whatever the interpretation of the words “is found guilty” on this point, the case of the plaintiff will come within the provisions of sections of section 3, as said above, the Act has been made retrospective, and there are clear words in the Act itself which say that it shall be deemed to have taken effect on the 15th of August 1947. The finding of the Special Court of Inquiry was given after, and not before, the 15th August, 1997, and therefore, there is no force in the contention that the case of the plaintiff is not covered by the provisions of section 3 of the Act on this point.

The main argument of Mr. Siraj is that the words “in this behalf” occurring in section 3 of the Act mean not only that the Tribunal should have been set for the purpose of finding out whether the person has been guilty of misconduct, but that at the time of the setting up of the Tribunal, there must be the further fact present in the mind of the Governor that on the finding of the Tribunal, the question of disqualification of that person would have to be decided. The argument of the other side is that the words “in this behalf” have reference only to the question of the finding about misconduct, and it is immaterial if at the time of the setting up of the Tribunal by the Governor, the question of disqualification of the plaintiff was not under consideration. Mr. Manzoor Qadir further argued that, at the time of the appointment of the Tribunal, the question of disqualification of the plaintiff was under consideration, or in other words, the Governor had in view this question. There is, however, nothing in the Ordinance itself, or otherwise to show that at that time there was any question of disqualification of the plaintiff in case he was found guilty of misconduct. The contention of Mr. Siraj, is that the object of setting up the Special Court of Inquiry under the Ordinance was to give an opportunity to the plaintiff to clear up his conduct and show that he was not guilty of the charges on which he had been dismissed from the office of the Premier of Sindh. At the time of the promulgation of the Sind Ordinance, II of 1948, there was no law by which the plaintiff on being found guilty of misconduct, besides being dismissed from office could be further punished by being disqualified from holding the office of a minister, etc. I am, therefore, of opinion that at the time of the promulgation of the Ordinance and the setting up of the Tribunal, the Governor had (not taken) into view the question of disqualification of the plaintiff. The whole question, therefore, is whether the words “set up in this behalf” mean that the question of disqualification should also have been in view at that time. Mr.Siraj has argued that this Act besides being, a penal law has also been made retrospective and should, therefore, be very strictly construed.

Now, these words “set up in this behalf” occur in section 3 of the Act, and as said above, the heading of this section is “Disqualification for Misconduct in a Public Office” In the section the same words are used again with reference to the order of the Governor-General ; the sentence reads :

“upon the public notification of an order of the Governor-General in this behalf and for such period not exceeding ten years as the Governor-General may appoint in the order.

Here, the words “in this behalf” undoubtedly mean “about disqualification”, because the order of the Governor-General has to be about the disqualification of the person found guilty of mis-conduct. Looking to the fact that the Act is penal inasmuch as it takes away the rights and privileges vested in a person, and further, taking into consideration the fact that it has been given retrospective effect the words in the section are to be so construed as to interfere as little as possible with vested rights. In my opinion, it cannot be said that the words “in this behalf” only refer to the finding of the Tribunal regarding misconduct. If this was the meaning given by the Legislature to these words, it would not have used the same words in the section again in connection with the order of the Governor-General in the passage reproduced above in a different sense. There is no reason to suppose that the Legislature intended to give different meanings to the same words, when appearing in a section at two different places. Taking therefore, into consideration the fact that this is a penal Act and has been made as retrospective, the proper construction to be put on the words “in this behalf” is that the Tribunal should have been set up with a view to consider the disqualification of the person whose conduct was being enquired into. At the time of the arguments, it was suggested by Mr. Manzoor Qadir that the Legislature intended this Act to cover the case of the plaintiff who himself was fully aware of it ; and therefore, he had given notice of moving a number of amendments. The reply of the other, side was that the fact that the plaintiff did not move any amendment, on the contrary, went to show that this Act was not intended to cover the case of the plaintiff. This, however, is beside that point, because the statute has to be interpreted in the light of the words used in it, and in case two different interpretations are possible, the one that does not take away the existing rights is to be preferred. There is further fact to be considered, and it is that if the Legislature intended that, at the time of the setting up of the Tribunal, the Governor may not have had in view the question of the disqualification of the person, the words “in this behalf” appearing in section 3 of the Act after the words “Tribunal set up” would be superfluous, because that object could be achieved by merely saying :

“Any person who is found guilty by …… a tribunal set up ……… by a……. a Governor, of misconduct……..”.

One of the rules of interpretation of the statute is that every word used in the statute is intended to have some effect and be of some use and no word is to be considered as superfluous or redundant. (Craies on Statute Law page 99, fourth edition). The words “in this behalf” occurring after the words “Tribunals set up” were, therefore, in my opinion, deliberately put in to show that at the time of the setting up of the Tribunal, the Governor must have in his mind are 5the question of the disqualification also. As shown above, at the time of the promulgation of the Sind Ordinance II of 1948 and the setting up of the Special Court of Inquiry or Tribunal, the Governor of Sindh had not in view the question of further disqualification of the plaintiff. Undoubtedly, the object of setting up this Special Court of Inquiry was to give a chance to the plaintiff to vindicate his character by showing that he was not guilty of charges relating to misconduct on which he had been dismissed from the office of the Premier of Sindh. The Special Court of Inquiry, therefore, cannot be deemed to be a Tribunal set up in this behalf for the purposes of the Public and Representative Offices (Disqualification) Act, 1949, and its report cannot be made the basis of an order under section 3 of the Public and Representative Offices (Disqualification) Act, 1949. The order of the disqualification of the plaintiff, therefore, is inoperative, illegal and ultra vires.

Coming to the question of relief to which the plaintiff is entitled, I have already said above that he is not entitled….. As regards defendant no. 1, I hold, as shown above, the plaintiff is not entitled to the relief of injunction. He is, however, entitled to the relief of declaration that the order of disqualification passed against him by the Governor-General under section 3 of the Public and Representative Offices (Disqualification) Act, 1949 s inoperative and he continues to be a member of the Sind Legislative Assembly and the Constituent Assembly of the Dominion of Pakistan. [pp 61 to 68]