The Constitution of Pakistan, 1973 Developed by Zain Sheikh

(a) Constitution of Pakistan (1973) Art. 65It would at once be seen that Article 65 is a departure from earlier provisions in the Constitutions of 1956 and 1962. The Constitution of 1956 and 1962. The Constitution of 1956 made no distinction between a between a member and a member-elect. In the Constitution of 1962 while a distinction was made in Article 106 between a “person elected as a member” and a member subscribing to the prescribed oath that distinction disappeared when it came to be provided by Article 107 that such a person elected as member would lose his seat if he is in terms of Article 107(c) failed to make the requisite oath. Note also that Article 106 ibid. employs the expression “A person elected as a member” whereas Article 65 of the present Constitution uses a distinct and apparently deliberate phrase “A person elected to a House”, implying that such a person is not a member till he makes the oath in the form set out. Thus, in the former successive Constitutional instruments it was a member who could cease to hold office as such member if he failed to make and subscribe on oath or affirmation or who even before the taking of such oath had resigned his seat (1962 Constitution). That is no longer the case under the person Constitutional dispensation. Needles to add that the Legislature is persumed to know the earlier legislation on the subject it is legislating and if it choose to use different language, such cannot be without meaning and import. Indeed we pointed out to learned counsel that under the Constitutional scheme a President elect is not the President of Pakistan unless he makes the oath of office, much as a Judge appointed to superior Court is not such Judge till he enters the oath of his office. The Constitution makes a like distinction between a person elected and a member of a House.

May it also be noted here that whereas the relevant Articles in the 1956 and 1962 Constitutions used the word “fails”, regarding non-taking of oath and vacation of the relevant seat, in course of time, Article 64 of the present Constitution, correspondingly speaks of his remaining “absent” as a member for forty consecutive days of sittings. The word “fail” is stronger and may not include an involuntary default whereas the word absence” is weaker and may cover even absence generated for reasons not of one’s own making. Mere absence of a member may, therefore, suffice and lead to loss of seat under Article 64 whereas under the precursor Constitutions an elemental of volition was necessary before loss of the seat came about.

Wherever the word “person” in the relevant context is used in the Constitution, it is to be viewed not otherwise than contextually and nowhere does it emerge that the word “person” is the equivalent of a “member” who has duly taken oath. The irresistible conclusion, therefore, is that the petitioner till time he takes oath is not a member of a House of Parliament, in this case the Senate and the Chairman was not in error in holding that to be so.

Such matters as above in so far as our Parliament is concerned have now been taken care of by Rules 72-A and 90 herein referred. Besides, on the basis of what has already been stated, the petitioner as a consequence of his continued trial and absence from the House is not likely to be effected because he is not yet a member of the Senate of Pakistan. Even so, the fact remains that in other jurisdictions, if a person is facing a criminal trial and happens to be interned as a corollary thereof, there is no right vesting in him to be taken to the legislative body of which he be a member, irrespective of such trial and consequent internment.[p. 66,67,68]E,F,G & I.