IHSANUL HAQ PIRACHA Versus CHIEF ELECTION COMMISSIONER

ORDER

ABDUL SHAKURUL SALAM, J.‑‑ Petitioner was elected to a reserved seat of Technocrats in the Senate of Pakistan on 14‑3‑1985. An election petition was filed and notification of his election was stayed by a learned Election Tribunal vide order dated 19‑3‑1985. The election petition itself was accepted by the learned Election Tribunal on 28‑4‑1985. The order was challenged by means of an appeal before the learned Supreme Court which was accepted vide order dated 14‑1‑1986 reported as Sh. Ihsanul Haq Piracha v. Mr. Wasim Sajjad and others P L D 1986 SC 200. Consequently, the petitioner was notified as a Member vide notification dated 15‑1‑1986. He took oath of office as Member of the Senate on 23‑1‑1986. In terms of Article 59 (1) (d) of the Constitution of the Islamic Republic of Pakistan, five persons were to be elected to the Senate by the members of each Provincial Assembly to represent Ulema, Technocrats and other professionals. The petitioner had been elected in this category. According to sub‑Article

(3) of the said Article of the Constitution, two were to retire after the expiration of the first three years and three were to retire after expiration of the next three years. For the two members to be retired, draw of lost was to take place. The petitioner filed an application before the learned Chief Election Commissioner saying that the petitioner's name was notified after acceptance of his appeal by the Supreme Court as a Senator on 15‑1‑1986 and he was administered oath on 23‑1‑1986 and as such the term of the applicant started from 23‑1‑1986. It was prayed that "the term of the applicant as member of the Senate be given effect to from the date of taking oath in the Senate of Pakistan i.e. 23‑1‑1986". This application has been dismissed by the learned Chief Election Commissioner vide order dated 30‑1‑1988 with the observations that "the only power vested in me for "determining the term of office of individual members" is contained in section 82‑A of the Senate (Election) Act, 1975, which provides for dividing the members "into two groups" by drawing of lots in the prescribed manner. This is in accord with the provision contained in sub‑Article (3) of Article 59 of the Constitution, which provides for retirement of the members in groups. Section 82 of the Senate Act clearly lays down that the term of office of a member of the Senate shall commence on the date of the first meeting of the Senate. The first meeting of the Senate, after the elections of 1985, was held on 21st March, 1985 and accordingly the term of three years in the case of 41 Senators is due to expire on 20th March, 1988 and that of 46 Senators would expire on 20th March, 1991. Under the scheme of the law, there is no provision for the determination of term of individual member." It may be noted that in drawing of lots the petitioner was unlucky and he was retired. He has filed this Constitutional petition.

2. Learned counsel for the petitioner has contended that since the petitioner took oath of office as a Member of the Senate on 23‑1‑1986 his term of office should start therefrom and he should hold office for three years at least, whereafter lot can be drawn. Learned counsel referred to Article 59 of the Constitution which is to the following effect:‑

(1) The Senate shall consist of (eighty‑seven) members, of whom‑(a) to (c) ‑‑‑‑

(d) five shall be elected by the members of each Provincial Assembly to represent Ulema, technocrats and other professionals.

(2) ............................... ............. ,

(3) The Senate shall not be subject to dissolution but the term of its members, who shall retire as follows shall be six years:‑

(a) to (c)‑‑‑‑

(d) Of the members referred to in paragraph (d) of the aforesaid clause, two shall retire after the expiration of the first three years and three shall retire after the expiration of the next three years."

He then read Article 65 which is to the following effect.: "A person elected to a House shall not sit or vote until he has made before the House oath in the form set out in the Third Schedule." He referred to Article 255 (3) of the Constitution which lays down that‑‑

"Where, under the Constitution, a person is required to make an oath before he enters upon an office, he shall be deemed to have entered upon the office on the day on which he makes the oath." The last Article of the Constitution referred to is 272 which is to the following effect:‑

"Notwithstanding anything contained in the Constitution, but subject to (Articles 63 and) 223,‑‑

(a) .....................................................

(b) the members elected or chosen as members of the Senate shall be divided into two groups by drawing of lots, the first group consisting of five members from each Province, two members from the Federally Administered Tribal Areas and one member from the Federal Capital and the second group consisting of five members from each Province one member from the said Areas and one member from the Federal Capital;

(c) the term of office of members of the first group and of the second group shall respectively be three years and six years;"

3. The learned counsel then referred to section 82 (1) of the Senate (Election) Act, 1975 which is to the following effect:‑

"The term of office of a member of the Senate shall commence on the date of the first meeting of the Senate held after the names of the persons elected to the Senate are notified by the Election Commission. "

The first contention in this behalf is that since the name of the petitioner was notified by the Election Commission on 15‑1‑1986 and he was administered oath on 23‑1‑1986, his term of office as a Member shall commence from the last mentioned date i.e. 23‑1‑1986. He was kept out of office by the ensuing litigation of the election petition. It was no fault of his. Therefore, he must complete his term of office of at least three years if he were to retire on drawing of lot then, otherwise six years. Alternately it was submitted that if his term were to start from the first meeting of the Senate as held by the learned Chief Election Commissioner i.e. 21‑3‑1985, the contention of the learned counsel for the petitioner then is that the said provision of section 82 (1) of the Senate (Election) Act, 1975 is ultra vires the Constitution because under the Constitution a Member is to hold office for six years or at least three years if his luck would not favour him in drawing of lots.

5. we have heard the learned counsel for the petitioner and gone through the various provisions referred to by him. These show that Senate is a permanent body. But it is laid down that at a definite interval, half or a prescribed number of Senators would vacate office initially either by drawing of lots or later on by operation of law at a definite time. For the vacant seats, elections are held in a "group" (Article 272)‑ orce for all the vacant seats. Bye‑election is a different matter. Learned counsel also agrees. Generally speaking, elections are held for the vacant seats in the Senate in one go. If the contention of the learned counsel for the petitioner were to be accepted that the term of office of a Senator would start from the date when he takes oath voluntarily or for that matter in view of the litigation relating to the election and its ultimate result on the date when the election is upheld finally by the last competent Court, the result would be that quite a number of Senators would be vacating seats on different dates and, therefore, it would not be possible to hold the election in a 'group' of half of the Senators or of the prescribed number of seats of the Senate in one go. We asked the learned counsel for the petitioner as to whether there is any precedent from any jurisdiction, like the United States where there is a Senate, to throw some light on the point, or, any other principle to which he could make reference that election to the Senate be held with reference to the date of taking oath by each individual member. He submitted that he had looked into the matter and he has found no precedent or principle in that behalf.

(5) Article 52 of the Constitution lays down that‑‑

"The National Assembly shall, unless sooner dissolved, continue for a term of five years from the day of its first meeting and shall stand dissolved at the expiration of its term." In other words, the National Assembly's normal life is for five years commencing from the day of its first meeting and with the termination of the term of the National Assembly, membership of the National Assembly also comes to an end. Though in case of Senate it does not come to an end in its entirety at any time but its members' term comes to an end either at the end of three years or six .years. There appears to be no parallel provision of Article 52 of the Constitution nor to any provision in the Constitution attention has been drawn as to when the term of the Senate will start as in the case of National Assembly that it would start from the day of its 'first meeting', but or principle it would seem to be that the term of the Senate will also commence from the date of its meeting. This principle finds place in Section 82 of the Senate (Election) Act, 1975 as quoted above which lays down that "the term of office of a member of the Senate stall commence on the date of the first meeting of the Senate held after the names of the persons elected to the Senate are notified by the Election Commission" Now, if the term of the office of a Member of the Senate is to commence on the day of the first meeting held after the names of the persons elected to the Senate are notified by the Election Commission, it would then mean that the term will commence from the date of the first meeting and not as contended by the learned counsel for the petitioner that their term will start from the date when the members would individually take oath either voluntarily or on account of any order of a Court which may have resulted in delaying the taking of the oath. If the contention of the learned counsel were to hold water it would come to that elections to the Senate will have to be held for individual members and every now and then. And not in 'groups' as envisaged by the Constitution (Articel 272). It seems to be contrary to principle. For the same reason, the contention of the learned counsel for the petitioner that the provision of section 82 of the Senate (Election) Act, 1975 is ultra vires the Constitution, is not quite correct. Rather it is in consonance with the mandate of Article 272 of the Constitution and its spirit in so far as that it had provided for the commencement of the functioning of the Senate on holding of its first meeting.

6. In view of what has been Stated above, on principle and nothing to the contrary having been pointed out it appears to us that the application of the petitioner to the learned Chief Election Commissioner with the prayer that the term of the applicant as a Member of the Senate be given effect from the date of his taking oath in the Senate of Pakistan i.e. 23‑1‑1986, has rightly been turned down by the learned Chief Election Commissioner vide the impugned order dated 30‑1‑1968. He had the jurisdiction to pass the order he has passed. It cannot be said that his order is without lawful authority and of no legal effect. Therefore, this petition is without force and is, consequently, dismissed in limine.

H.B.T./I‑69/L Petition dismissed.