The Constitution of Pakistan, 1973 Developed by Zain Sheikh

SHAHID NABI MALIK AND ANOTHER

Versus

CHIEF ELECTION COMMISSIONER, ISLAMABAD AND 7 OTHERS

Per Saiduzzaman Siddiqui, J

(a) Constitution of Pakistan (1973) Art. 63(1)(d)–

Article 63(1)(d) of the Constitution declares a person who holds office of profit in the service of Pakistan from being elected or being the member of Parliament, unless the office held by him is declared by law, not to disqualify its holder. It is, therefore, quite clear that a person who does not hold an office of profit in the service of Pakistan, is not debarred from being elected or being the member of the Parliament. As a necessary corollary a person merely by virtue of his being in the service of Pakistan is not debarred from being elected or being the member of the Parliament under Article 63(1)(d) unless he also holds an office of profit in such service. The expression “he holds an office of profit in the service of Pakistan” used in Article 63(1)(d), clearly implies that in order to attract the disqualification mentioned in this provision, the person must be holding the office of profit in the service of pakistan on the date of his election to the Parliament. Therefore, a person who ceased to hold the office of profit in t he service of Pakistan before the date of such election does not fall within the mischief of this Article. (p. 43) A.

(b) Constitution of Pakistan (1973) Art. 63

We need not emphasize here that the provisions of Article 63 of the Constitution are to be construed strictly as they relate to the disqualification of a person, from being elected or being the member of Parliament. It is a well-established rule of interpretation the that while construing a provision of this nature and holding a person disqualified, the case must fall both within the letter and spirit of the provision (p. 44) B.

(c) Constitution of Pakistan (1973) Art. 63

On 5th July, 1977, Martial Law was Proclaimed in the country after dismissing the then Civilian Government. As a result of proclamation of 5th July 1977, the Constitution was held in abeyance, but fresh election Parliament and Provincial Assembly were promised. The Martial Law Authorities on 28-7-1977 promulgated Houses of Parliament and Provincial Assemblies (Election) Order (P.O. 5 of 1977) which provided for holding of general elections in the country in October 1977. Article 10 of P.O. 5 of 1977 laid down the qualifications and disqualification for membership of Parliament. (p. 45) C

The Grounds of disqualifications mention in sub-clauses (1) to (4) of clause (2) (a) of Article 10 ibid were identical to those stated in sub-clauses (a) to (d) of clause (a) of original Article 63 of the Constitution. However, sub-clauses (1) to (9) of clause 2(b) of Article 10 ibid provided for new grounds of disqualifications for membership of Parliament. These new grounds of disqualifications mentioned in sub-Clauses (2) to (5) and (7) to (9) of Article 10 of P.O. 5 of 1977 were re-enacted as sub-clauses (i) to (o) of clause (1) of Article 63 which was substituted in the Constitution by P.O. 14 of 1985. The position both under original Article 63(1) (d) and Article 10 (2) (a) (4) of P.O.5 of 1977 was that a person holding an office of profit in the service of Pakistan was disqualified from being elected and from being member of Parliament, unless under some law the holder of such office was declared not so disqualified. However, on the language of Article 63 (1) (d) of the Constitution or Article 10(2) (a) (4) of P.O. 5 of 1977, a person who may be in the service of Pakistan on the date of his election but not holding any office of profit could not be held disqualified from being elected or being a member of the Parliament. The effect of enacting sub-clause (4) of clause (2)(b) of Article 10 of P.O. 5 of 1977, however, was that all persons who were in the service of Pakistan or a statutory body or any body which was owned or controlled by the Government or in which the Government had controlling share but had ceased to be in such service on the date of election were also disqualified from being elected or being the member of Parliament, if a period of 2 years had not elapsed on the date of election from the date they ceased to hold their office. We may mention here that Article 10(2)(b)(4) though disqualified a former employee of a statutory body or a body controlled by Government or in which the Government had the controlling share from being elected to the Parliament or from being a member of Parliament, if a period of 2 years had not passed since he ceased to be in the service of such a body, but this disqualification was not attracted in the case of a person who was serving in such organization on the date of his election. This created anomalous position inasmuch as under Article 10(2)(b)(4) of P.O.5 of 1977 a person who was former employee of a statutory body or any body controlled by Government or in which Government had controlling share stood disqualified from being elected or chosen as a member of Parliament or from being a member of the Parliament but a person who was in the service of such an organization remained outside the mischief of this provision. This obvious anomaly was later sought to be rectified by the legislature by enacting sub-clause (e) of clause (1) of Article 63 ibid, which provided for disqualification of a person who on the date of election was in the service of any statutory body or any body which is owned or controlled by the Government or in which the Government had a controlling share or interest, from being elected or being a member of the Parliament. As pointed out by us earlier, under sub-clause (d) of clause (1) of Article 63 ibid, a person in the service of Pakistan if he does not hold an office of profit is not disqualified from being chosen or elected or from being the member of Parliament. However, if we interpret sub-clause (k) of clause (1) of Article 63 of the Constitution as suggested by the learned counsel for Mr. Malik and as held by the learned Tribunal, it will lead to absurd result as a person who is in the service of Pakistan on the date of election but does not hold any office of profit, will be eligible for being chosen or elected or being the member of the Parliament under sub-clause (d) ibid, while a person who has ceased to be in the service of Pakistan before election but 2 years period had not passed since the date he ceased to hold such office will be disqualified from being chosen or elected or being the member of Parliament under sub-clause (k) ibid. Can such inconsistency and absurdity be attributed to the law-givers? The answer to this plainly in the negative. (p. 47) D

(d) Constitution of Pakistan (1973), Interpretation

It is well-established principle that while interpreting a Constitutional provision it must be remembered that a Constitution unlike a statute cannot be changed or amended frequently. a document of such a basic nature is not merely the imprisonment of past but is also alive to the future aspiration and need of the nation. Therefore, while interpreting a Constitutional document it must be read and considered as a whole to discover the true intention of its framers. It is for these reasons that no redundancy, surplusage, absurdity or inconsistency can be attributed to the framers of the Constitution. The rule of harmonious interpretation provides that the Court whole literally interpreting a provision of the Constitution notices apparent inconsistency as a result of such construction with another provision of the Constitution of the same subject, it may not follow the grammatical and literal construction of the words and adopt a construction which would harmonise the two apparently conflicting provisions and make their working purposeful and in accordance with the intention of Legislature. The rule of harmonious interpretation in case of conflict was stated by the Supreme Court of India in the case of M. Pentiah v. Veeramallappa AIR 1961 SC 1107, as follows:– . (p. 49) E

“Where the language of a statute, in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence………” (p. 49) F
“11. The normal rule of interpretation is that the words used by the Legislature are generally a safe guide to its intention. Lord Ried in Westminister Bank Ltd. v. Zang, 1966 AC 182 observed that “no principle of interpretation of statutes is more firmly settled than the rule that the Court must deduce the intention of Parliament from the words used in Act.” Applying such a rule, this Court observed in S. Narayanaswami v. G. Panneerselvam, AIR 1972 SC 2284 at p. 2290 that here the statute” meaning is clear and explicit, words cannot be interpolated,’ What is true of the interpretation of an ordinary statute is not anytheless true in the case of Constitutional provisions, and the same rule applies equally to both. But if the words of an instrument are ambiguous in the sense that they can reasonably bear more than one meaning, that is to say, if the words are semantically ambiguous, or if a provision, if read literally, is patently incompatible with the other provisions of that instrument, the Court would be justified in construing the words in a manner which will make the particular provision purposeful. That, in essence is the rule of harmonious construction.” (p. 49) G

(e) Constitution of Pakistan (1973), Art. 63(1)(d)(e) & (k)

The framers of the Constitution made their intention clear by providing in sub-clause (d) of clause (1) of Article 63 that a person who holds the office of profit in the service of Pakistan at the time he seeks election, stands disqualified from being elected or chosen or from being the member of Parliament unless under a law the holder of such office is
declared not so disqualified. However, if the Legislature intended that a person who is in the service of Pakistan but does not hold any office of profit also stands disqualified in the like manner as a person holding office of profit, it could have provided so. The fact that the Legislature while re-enacting with amendments sub-clause (e) of clause (1) of Article 63, only provided for disqualification of persons in the service of a statutory body or any body which is owned or controlled by Government or is which the Government has a controlling share or interest at the time of election, from being elected or becoming a member of the Parliament, is indicative of the fact that the Legislature did not intend to enlarge the categories of persons mentioned in sub-clause (d) any further. The Legislature, therefore, while providing in sub-clause (k) of clause (1) of
Article 63 ibid, that the person who ceases to hold office in the service of Pakistan or a statutory body or any body owned or controlled by the Government or in which the Government has controlling share or interest, will not be eligible for election or being a member of Parliament for a period of two years from the date he ceases to hold such office, had in its contemplation the two categories of disqualified person mentioned in sub- clauses (d) and (e) ibid. The Legislature having chosen not to disqualify a person in the service of Pakistan who does not hold any office of profit, it would be absurd to attribute to the Legislature that it intended to disqualify a person, who was in the service of Pakistan and did not hold any office of profit, from being elected to the Parliament or from becoming its
member for a period of 2 years since he ceased to hold such office. We are, therefore, of the view that sub- clause (k) of clause (1) of Article 63, ibid, disqualified only those persons for a period of 2 years from the date they ceased to hold their office who were either holding an office of profit in the service of Pakistan, or were in the service of a statutory body or any body which was owned or controlled by the Government or in which the Government had controlling share or interest. The above interpretation of sub-clause (d), (e) and (k) of clause (1) of Article 63 of the Constitution by us not only harmonises the apparent conflict in them but make the working of these provisions purposeful and in accord with the manifest intention of the Legislature. (p. 50) H

(e) Constitution of Pakistan (1973), Arts. 63 & 260

This brings us to the next important controversy in the case, whether Mr. Dar who was appointed as the full-time vice-Chairman, P.I.B. was in the service of Pakistan and if so, whether the office of Vice-Chairman, P.I.B. was an office of profit. “Office of profit” is not defined but “Service of Pakistan” has been defined in Article 260(1) of the Constitution. (P. 50) I

The P.I.B then besides the Chairman, also had a full time Vice-Chairman, a full Secretary and three members, to be appointed by the Government. The P.I.B was made part of Ministry of Industries with independent and autonomous status and following terms of reference provided the base for working of P.I.B–

(1) to take steps for image building of Pakistan as a safe and attractive place for investment both foreign and local;

(2) to make policy recommendation to the Government and to take all necessary steps aimed at generation of investment locally and from aboard ; and

(3) to provide in an appropriate manner efficient and effective services to prospective investors at home or abroad.

The final decision relating to organisational structure of P.I.B., was communicated by the Prime Ministers Secretariat to Finance and Cabinet Division, through letter dated 6-10-1992. (p. 52) J.

“Service of Pakistan” as defined in Article 260 of the Constitution, besides other categories of service means “any service, post or office in connection with the affairs of the Federation or of a Province”. (p. 53) K.

The evidence produced before the Tribunal only shows that during period Mr. Dar held the office of Vice-Chairman, P.I.B., he was paid only out of his pocket-expenses which he incurred on travelling abroad. There is nothing on record to show that either the office of Vice-Chairman, P.I.B., carried any benefit by way of salary, remuneration or other fringe benefits or that he was paid any salary, allowances, fee, or other benefits or that Mr. Dar was paid any salary, allowance, fee or other benefits in his capacity as the Vice-Chairman, of P.I.B. To establish that a person is holding an office of profit two things have to be proved. Firstly, that there is an office and secondly, the office carries which it some kind of remuneration. In the present case, the evidence on record only established that Mr. Dar was holding an office in the service of Pakistan but there was no evidence to show that the office held by Mr. Dar was an office of profit. Mere reimbursement of out of pocket expenses Mr. Dar could not make the office held by him as an office of profit in the service of Pakistan. As we have reached the conclusion that Mr. Dar was not holding any office of profit in the service of Pakistan, he was not disqualified from being elected or being the member of National Assembly (p. 56) O.

Per Ajmal Mian, J.

(g) Constitution of Pakistan (1973) Arts. 63 & 25

Reverting to the above legal controversy, it may be pertinent to mention that the Constitution is an organic document, the object of which inter alia is to ensure the establishment of an Egalitarian Society. The construction found favour with the Tribunal not only runs counter to the above object of the Constitution but is also violative of Article 25 of the same which enjoins that all citizens are equal before law and are entitled to equal protection of law. The effect of the construction adopted by the Tribunal is that a person who holds an office in the service of Pakistan, which office is not an office of profit, can be a member of Majlis-e-Shoora but a person who has ceased to be in service of Pakistan and whose office was not an office of profit, cannot be member of Majlis-e-Shoora before the expiry of two years period since he ceased to be in such service. The above-classification does not come within the compass of a reasonable classification as it is not founded on intelligible differentia. It in fact, amounts to discriminatory treatment to the persons within the same class, in other words, the persons placed in the same situation/position are treated discriminately without justifiable reason. We cannot attribute such an intention on the part of law makers. (p. 58) P

(h) Constitution of Pakistan (1973), Interpretation

Since the Legislature has failed to take upon itself the above important Legislative exercise, the Judiciary though cannot legislate but it can through the process of interpretation remove such omission or conflict, if possible, by pressing into service well-settled rules of interpretation of statutes and Constitutional documents. (p. 58) Q

(i) Constitution of Pakistan (1973), Interpretation

A perusal of the above-quoted extracts from the aforesaid treatises indicates that even when there is a conflict in Constitutional provisions, efforts should be made to reconcile the same but where it is not possible, the provision which relates to a lesser right will yield to the provision which contains a higher right. In the case of Al-Jehad Trust (supra), since clause (7) of Article 209 of the Constitution related to the security of tenure of the Judges of the superior Courts which is sine qua non for ensuring independence of judiciary as enjoined and guaranteed by the Constitution. (p. 60) R

(j) Constitution of Pakistan (1973), Arts. 63(1)

Law Dictionary, 1969 Edition, page 881, which defined the above term as “A lucrative office; an office the incumbent of which is entitled to salary or other compensation”. Reference may also be made to the following cases relied upon by Mr. Muhammad Akram Sheikh, learned Sr. ASC for Mr. Dar. (p.61) S

I am inclined to hold that the question, whether a person holds an office of profit in terms of Article 63(1) of the Constitution, will depend on the facts of each case. If an office is a regular office on the strength of the department concerned to which salary/emoluments/ allowance are attached, it is an office of profit. A person cannot change the character/nature of such an office by not drawing salary etc., but if such an office is a newly created office which is not on the strength of the department concerned and for which no salary or emoluments are determined nor they are payable to the incumbent, it is not an office of profit. (p. 66) T

(k) Constitution of Pakistan (1973), Art. 63(1), Interpretation

I am further inclined to hold that a provision of a Constitution/or a statute relating to disqualification should be construed reasonably having regard to the circumstances of the case involved and the time with which one is concerned and also the class of persons whose case the Court may be dealing. (p. 66) U.

(l) Constitution of Pakistan (1973), Art. 63(1)

From the evidence on record, it appears that at the relevant time the office of the Vice-Chairman of P.I.B. was newly created It was not a regular/budgeted post, neither salary was determined nor it was payable to Mr. Dar. In this regard, reference may be made to the relevant portions of the statements of R.W.4 Saeed Ahmad, Deputy Director, Board of Investment, and R.W.5 Mr. Imtiaz Ahmed Sahibzada, Cabinet Secretary, Government of Pakistan. (p. 66) V

The notification of the appointment as Vice-Chairman, P.I.B. and also the notification conferring states of a Minister of State on Mr. Dar do not spell out any terms as to the payment of salary and other fringe benefits as to make the same as an office of profit. (p. 67) W

In view of the above evidence on record, it can be safely concluded that the office of the Vice-Chairman, P.I.B. which Mr. Dar was holding at the relevant period for few months was not an office of profit in order to attract the disqualification under clause (1) of Article 63 of the Constitution. (p. 67) X

Per Fazal Karim, J.

(m) Constitution of Pakistan (1973), Interpretation

The principles to be derived from decided cases then are: (1) that the power to add words is a power to rectify obvious drafting errors; (2) that the Courts may read words into a provision which are not there if they consider that those words are necessarily implied by the words which are already there in h tat provision; (3) even if it is right to describe this power as the power to legislate, it is limited to filling gaps, and (4) that what the Court do in exercising that power is to give effect to the legislative or Constitutional intention.

To those principles must be added the observation that this power is not a power to amend a Constitutional or statutory provision; that power, as regards the Constitution, is reserved by Article 239 of the Constitution, to the Parliament and that too when the Bill to amend has been passed by the votes of not less than two-third of the total membership of each House.(p. 71) Y

(n) Constitution of Pakistan (1973) Art. 63, Interpretation

It first enacted as clause (2)(b)(4) of Article 10 of the President Post Proclamation Order of 1977 (P.O.5 of 1977). Then it was bodily lifted from that enactment and was incorporated in Article 63 as clause (k) and lastly it was “affirmed, adopted and declared to have been validly made by the competent authority and, notwithstanding any thing contained in the Constitution” by Article 270-Aas substituted by the Constitution (8th Amendment) Act, 1985. We must, therefore, proceed on the presumption that the disqualification couched as it is in considered legislative policy.

The starting point for the interpretation of paragraph (k) of clause (1) of Article 63 must, therefore, be its language and absent a clearly expressed intention to the contrary that language must ordinarily be regarded as conclusive. Each paragraph of clause(1) of Article 63 is separated by the word ‘or’. There is, therefore, no doubt, and none was expressed, that each paragraph of clause(1) of Article 63 is an independent disqualification. Much was tried to be made of the fact that the disqualification in paragraph (o) of clause (1) of paragraph (o) was to create exceptions to the disqualification in paragraph (d) and that paragraph (o) could as well be a part of paragraph (d). In other words paragraph (o) can be characterized as a specimen of drafting inelegance but that affords no reason for thinking that the disqualification in paragraph (k) must be read subject to the disqualification in paragraph (d) or what is a stronger thing, that an omission should be assumed or fancied and words should be imported from paragraph (d) and (k) is the important fact that they are two independent disqualifications each dealing with a distinct class of persons. As has been observed above, paragraph (d) provides for persons who are at the date of election in the service of Pakistan and paragraph (k) provides for person who are not serving at the date of the election. As to why it was thought necessary to provide that a person who is serving must hold an office of profit and a person who is not serving may not hold such an office was matter of legislative policy. In other words, person who are in the service of Pakistan are treated by the Constitution-makers as a class apart and for them the mere fact that they had been in the service of Pakistan irrespective of whether or not they had held an office of profit was considered a sufficient disqualification. It is of some significance to note that clause (1) of Article 63 does not treat all serving persons alike as one category. Thus, while according to paragraph (d), for a person in the service of Pakistan, it is necessary that he holds an office of profit but according to paragraph (e) for a person in the service of any statutory body etc. it is not necessary that he holds an office of profit. But paragraph (k) treats all persons who had been in the service of Pakistan and persons who had been in the service of a statutory body etc. as a distinct category; both are disqualified, irrespective of whether or not they had held an office of profit. All this show, and in any view shows clearly, that there is no drafting error to be rectified, there is nothing to compel the reading of the words ‘office of profit’ in paragraph (k) on the principle of necessary implication and that the Constitutional intention manifested by the language of paragraph (k) can be given effect to without those words in paragraph (k). Read the disqualifications in paragraph (d) and paragraph (k) as independent disqualifications relating to two distinct categories of person, and no absurdity or unreasonableness will arise.

It sometimes becomes inevitably for Judges “to approach the line where interpretation ceases and legislation begins, a line which they may not cross”. But this is not that case. This case rather reminds me of a great Judge who, when confronted with an argument about the difficulty of drawing the line, said that, “though be know not when day ended and right began, he know that mid-day was and midnight was night”. (Lord Simonds in Chapman v. Chapman (1954) AC 429, 445).

In the result, I would have dismissed Civil Appeal No. 1025 of 1995. But as that appeal stands accepted by the majority judgment, the questions raised in Civil Appeal No.1024 of 1995 have not been reached. (p. 72) Z