IHSANUL HAQ PIRACHA And Others vs WASIM SAJJAD And Other
Two applications were filed under Order XX, Rule 1 of the Supreme Court Rules, 1980 seeking interim suspension of the Election Tribunal's order declaring the appellants' election to the Senate as technocrats void under the Senate (Election) Act, 1975. The core legal question concerned the interpretation of qualifications for a technocrat under Section 5(1)(c) explanation (b) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, specifically regarding professional competence and recognition. The Supreme Court held that the appeals presented an arguable case and that the balance of convenience favoured the appellants, as allowing re-elections to proceed during the pendency of the appeal would cause unnecessary expenditure and waste if the appeals succeeded. Consequently, the Court suspended the impugned order of the Tribunal to stay the re-election process, while maintaining the status quo regarding the non-notification of the election and administration of oath.
- Whether the Supreme Court will suspend the operation of an Election Tribunal's order declaring a Senate election void pending the disposal of the appeal?
- What constitutes a technocrat based on professional competence and experience under the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977?
- Does the balance of convenience favour staying fresh re-elections when an elected candidate challenges an adverse decision by an Election Tribunal?
- Order XX Rule 1, Supreme Court Rules 1980
- Section 48(3), Senate (Election) Act 1975
- Section 5(1)(a)(iv), Houses of Parliament and Provincial Assemblies (Elections) Order 1977
- Section 5(1)(c), Houses of Parliament and Provincial Assemblies (Elections) Order 1977
- Section 38, Senate (Election) Act 1975
- Section 48, Senate (Election) Act 1975
ORDER
1. SHAFIUR RAHMAN, J.--Two applications have been filed under Order XX, rule 1 of the Supreme Court Rules, 1980 making the same request in to separate appeals preferred to this Court as of right under section 48(3) of the Senate (Election) Act, 1975 (hereinafter referred to as the Act).
2. The to appellants sought election to the Senate from the Punjab against five reserved seats for representing the category comprising "Ulema, technocrats and other professionals" under section 5(1)(a)(iv) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 President's (Post-Proclamation) Order No. 5 of 1977. They claimed to be technocrats and got elected. Their qualification to be a technocrat as defined in section 5(1)(c) explanation (b) of the aforesaid Order was challenged by Election petitions. A technocrat has been defined in the law as hereunder:- "(b) 'technocrat' means a person of nationally or internationally recognised professional competence with at least fifteen years' experience and expertise at a high level for administering or managing an operational or policy-making unit."
3. The Tribunal constituted under section 38 of the Senate (Election) Act, 1975 adjudged under section 48 of the Act the appellants to be not qualified as technocrats and declared their elections void and ordered re-elections. Hence the appeals.
4. The learned counsel for the appellants seek interim suspension of the impugned order of the Tribunal with a view to avoid the possible futility of the whole re-election process. They also contend that during the interregnum the Province of Punjab will not be effectively and fully represented in the Senate. They have taken us through the law governing the subject with a view to point out the requirement of the law, the nature of the qualification prescribed for the technocrats, the extent to which it was satisfied in the case of the appellants with a view to demonstrate how strong prima facie case they have. Their main grievance appears to be that a very technical and restricted view has been taken of the expression "a person of nationally or internationally recognized professional competence." The Tribunal, it is urged, by insisting that such recognition must come from a University, seat of learning, professional body or institute, Government or any international body or forum, has not only restricted the scope of statutory provision but has also not correctly applied even this test to the antecedents, performance and standing of the appellants in their respective fields or specialty.
5. It needs to be mentioned that the Tribunal has an application of the respondent passed an interim order during pendency of the petition before it, to the effect that the election of the appellants to the Senate be not notified and in consequence it has not been so far notified. This order was not challenged by the appellants and remained in force till the disposal of petition.
6. After hearing the learned counsel for the appellants and going through the record, we find that the question involved in these appeals is one of interpretation of law prescribing qualifications of the candidate: and that it is an arguable case. The appellants are the duly elected candidates. The balance of convenience is prima facie in their favour As pointed out by this Court in the case of Molvi Muhammad Yakub v Chairman Election Tribunal N.W.F.P. And others PLD 1976 SC 625 not staying the fresh elections "will involve the parties and the administration into unnecessary expenditure and result in waste of the if the appeal eventually succeeds and the order passed by the Tribunal is set aside."
7. In the circumstances and for the reasons given, we would suspend the order impugned in to appeals before us pending the final disposal, of these appeals, with the following directions:- The re-election shall not take place during the pendency of the appeal. The appellants shall be treated as elected Members of the Senate who have not yet been duly notified as such Members nor have they been administered the oath.
8. As they did not challenge the interim order of the Tribunal regarding notification and oath pending hearing of the petitions against them and accepted it till the decision thereof, it will not be proper to issue any direction (with implications of a mandatory order) in this behalf, as an interim measure; and, thus it seems appropriate to maintain the same position during the pendency of the appeals in this Court. However, in order to keep the loss to the constituency at the minimum, the appeals shall be made ready for hearing at Karachi during August, September 1985.