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Petitioner: KAZI ABDUL KADER, MINISTER-IN-CHARGE OF FOOD AND AGRICULTURE, GOVERNMENT OF EAST PAKISTAN VS Respondent: THE ELECTION TRIBUNAL, EAST PAKISTAN AND 4 OTHERS
P L D 1966 Dacca 277
P L D 1966 Dacca 277
Before S. M. Murshed, C. J., Khondkar Muhammad Hasan and A. S. Chowdhury, JJ
Kazi ABDUL KADER, MINISTER‑IN‑CHARGE OF FOOD AND AGRICULTURE, GOVERNMENT OF EAST PAKISTAN‑Petitioner
versus
THE ELECTION TRIBUNAL, EAST PAKISTAN AND 4 OTHERS‑Respondents
Petition No. 192 of 1965, decided on 26th November 1965.
Constitution of Pakistan (1962), Art. 229 (1), (8) read with National and Provincial Assemblies (First Elections) Order (4 of 1962), Arts. 61 & 62 and Settlement of Disputes (First Elections) Order (13 of 1962), Art. 26(2)(a)(ii)‑(Naming by Tribunal of person found guilty of corrupt or illegal practice)‑Article 229, temporary provision expiring with constitution of Electoral College‑President's Orders (e.g., Order 13 of 1962) issued under Art. 229(8) expired with expiration of Art. 229 on 21st November 1964, when Electoral College was constituted‑Constitution of Pakistan (1962), Arts. 158, 224(2) & 225‑Electoral College Act (IV of 1964)‑Interpretation of statutes‑Rules of interpre tation do not create "new" law but provide means to understand law‑Settlement of Disputes (First Elections) Order (13 of 1962) not saved by Art. 225(2), Constitution of Pakistan (1962) Settlement of Disputes (First Elections) (Amendment) Order (35 of 1962) also expired on 21‑11‑1964 when Electoral College was constituted‑Election Tribunal appointed under Order (35 of 1962) ceased to function as a legally constituted authority as from 21‑11‑1964‑Order passed by such Tribunal after such date, of no legal effect‑Constitution of Pakistan (1962), Art. 250 does not help to save proceedings taken under Settlement of Disputes (First Elections) Order (13 of 1962).
Held, that in terms of Article 229, Constitution of Pakistan (1962) the impugned Order (No. 13 of 1962) or similar other "Orders" made by the President under Article 229 (8) had expired with the formation of the Electoral College [in accordance with Electoral College Act (IV of 1964)] under Article 158, Constitution of Pakistan (1962) on the 21st of November 1964.
The present Constitution (1962) brings in three different kinds of Legislative machineries, the first being the National and the two Provincial Assemblies, the second being the Ordinance making power of the President and of the Provincial Governors and the third category is sui generis, for example, the provisions of Article 229 of the Constitution. The first two are supple mentary and have vital points of contact with each other. The third category of legislative power, that is, power under Article 229 (8), constitutes a distinct class by itself and has no nexus with the other two. It stands apart. Article 229 is self -existing and is expressly self‑effacing. It is distinct in its origin and in its tenure of life. It professes to be transitory and temporary. The entire machinery created by Article 229 expires under its self‑exploding process.
Article 229 of the Constitution is a constitutional device which answers the requirement of clause (2) of Article 224 of the Constitution.
This Article was designed to be temporary. 'Its object was to effect an interim arrangement as specified in Article 224(2) of the Constitution. The Article itself was expressly kept alive until the formation of the Electoral College under Article 158 of the Constitution. It assumed the nature arid character of a time‑bomb which would explode itself when the time‑limit for its explosion had been reached, namely, the formation of the said Electoral College. The outer limit has been specifically and precisely stated, although the date, which could not be anticipated ab initio, was not mentioned. Article 229(1) has also specifically provided that "any other provision of the Consti tution", which was inconsistent with that Article (Article 229) must give way. For example, Article 225 will be governed by Article 229 if any clash between the two is noticed.
This Article (Article 229) takes its place in a chapter, namely, Chapter 3 of Part XII of the Constitution, which has been expressly stated to be "transitional" 2nd "temporary" provisions. The description of the chapter is by no manner of means unimportant. But, even without such external aid, the language. of Article 229 itself is clear. The Article is not a novel device. Such temporary and transitional provisions recur in successive constitutional instruments relating to this sub‑continent.
Whenever a machinery of law, which constitutes the life -giving source from which other pieces of legislation derive their life‑stream, expires and dies, everything done under it, including "subordinate" legislation made thereunder, automatically dies when the source of life is dried up. The logic of this is patent enough. When the life‑source dies, anything, which derives life from it, suffers a natural death as a matter of course. It is as much an axiom of common sense and logic as it is a biological verity.
The rationale of such provisions is that when a Constitution replaces another Constitution and puts an end to the latter, every law which has derived life from the expired Constitution automatically dies unless it is "continued" and kept alive by the new Constitution. In clauses (2) and (3) of Article 225, this principle has also been more specifically recognised.
By the very force of Article 229 of the Constitution, all the Presidential Orders which were made under clause (8) thereof, would expire with the expiry of the Article itself. Such a result is inescapable.
Under the very terms of Article 229, the impugned Presidential Orders and similar Orders made under clause (8) ceased to have any effect as soon as the above‑mentioned Electoral College was formed under Article 158.
One may, however, recall that rules of interpretation and canons of construction do not create any new law; they provide the means to understand the law and to give a correct meaning to it. In fact clause (1) of Article 229 fixes the age of Article 229 in its entirety. The age fixed by the Constitution puts its finger on a definite date, namely, the date of the formation of the Electoral College under Article 158, which is an inevitability under the mandate of the Constitution.
Watson v. Winch (1916) 1 K B 688 ref.
Implicit in the very connotation of the term "continue" is the concept that the thing intended to be continued would have otherwise expired. One does not continue that which continues by itself. Article 225 merely seeks to keep alive provisions of law which would have otherwise died.
Laws made under Article 229(8) continue (although, for a limited time) by virtue of their own force under the self‑same Constitution. They do not, obviously, come within the purview of Article 225 (1), notwithstanding the fact that President's Order No. 13 of 1962 comes within the meaning of "existing law" under Article 225 (7).
Clause (1) of Article 225 plainly states that the continuation of an "existing law" is "subject to this Constitution". This means that if there is a constitutional provision which does not countenance such continuance or which continues it for a limited time, Article 225 would not apply. The expression "subject to this Constitution" means that there cannot be any continuation of a kind which militates against the normal incident of any other provision of the Constitution. Since Article 229 limits the life of laws made under clause (8) thereof, Article 225(1) cannot operate to continue in force such laws by removing the terminus a quo imposed by the former.
If a law made under Article 229 (8) was born with a limited life and was applicable only for a limited time, Article 225(1) cannot give it an extended and artificial life in derogation of any provision of the Constitution which restricts such life.
President's Order No. 35 of 1962 expired on the 21st of November 1964, the day on which the Electoral College under the Constitution was established under Article 158.
The result is that the Tribunal [constituted under Order (35 of 1962)] which had tried the petitioner and had entertained proceedings against the petitioner had ceased to function as a legally constituted authority on and from the 21st of November 1964.
Therefore, the impugned finding arrived at by the Tribunal and the order made by it against the petitioner are of no legal effect. The impugned order was passed by an authority which had no legal existence on and from the 21st November 1964.
Rex v. Wicks (1946) 2 All E R 529 ref.
Begum Shamsuanehar v. The Speaker, East Pakistan Provincial Assembly P L D 1965 S C 120 and Muhammad Siddiq v. Chief Settlement and Rehabilitation Commissioner, Lahore P L D 1965 S C 123 considered.
Article 229(8) has not been "repealed". It has ceased to become effective on and from the 21st of November 1964. The laws made under Article 229(8) expired and lost their efficacy by efflux of time. They have not been repealed. Secondly, even if the laws made under Article 229(8) had been repealed, Article 250 cannot help. Proceedings against the petitioner were set in motion after the relevant law, under which he was con victed, had expired. Although it was alleged that the petitioner had committed certain acts prior to the 21st of November 1964, yet he (the petitioner) had not "incurred" any "liability" until it was so adjudicated against him by the Election Tribunal. Acts alleged to have been done by the petitioner constitute evidence upon which a "liability" could be "incurred" upon a consequent and subsequent finding by a competent authority. Notice was served on the petitioner on the 27th of November 1964, under Article 26, clause (2), proviso (a), of President's Order No. 13 of 1962, after Order No. 13 had expired on the 21st of November 1964. The petitioner was convicted and named on the 30th of April 1965. Can there be any question of his having "incurred" any "liability" prior to the 21st of November 1964? No "proceedings", having commenced before the 21st of November 1964, could be "continued" or "enforced" after the said date.
Watson v. Winch (1916) 1 K B 688 and Craies on "Statute Law", 6th Ed., p. 334 ref.
[Epitome of conclusions of law].
A. K. Brohi, K. A. Bakr, Abu Backkar and S. S. Haldar for Petitioner.
Ahmad Sobhan, Hummayun Kabir Chowdhury and Abu Taher Chowdhury for Respondents.
Dates of hearing: 25th and 26th November 1965.
JUDGMENT
MURSHED, C. J.‑This is a reference, under clause 36 of the Letters Patent, from a Division Bench, consisting of two learned Judges of this Court, which, on hearing the present Rule nisi, was equally divided on its opinion.
As the point raised in this application is of vital importance from a constitutional point of view, I have associated with me two of my learned and senior colleagues in hearing this case, and I am happy to feel that they concur in the view that I have taken in pronouncing this judgment.
The application is by one Kazi Abdul Kader, who was, till the relevant time, Minister‑in‑charge of Food and Agriculture, Government of East Pakistan (He ceased to be such Minister when this application was being heard by us). The applicant was named by the Election Tribunal, East Pakistan, in accordance with President's Order No. 13 of 1962, upon a finding to the effect that he was guilty under Articles 61 and 62 of the said Order.
The facts of the present case are very simple. The petitioner was elected from a constituency in the District of Rangpur in the first general election held under the present Constitution. On his appointment as a Minister of the Provincial Government his seat in the Provincial Legislature became vacant. In pursuance thereof a bye‑election was held in respect of the said constituency on the 20th of October 1963, in which respondent Nos. 3 to 5, namely, Mr. Mosharraf Hossain Miah alias Lebu Miah, Mr. Rustam Ali Miah, and Majibor Rahman Mia, respectively, contested. Respondent No. 4, Mr. Rustam Ali Miah, was declared elected.
Thereafter, respondent No. 3, Mr. Mosharraf Hossain Miah, filed an election petition which was heard by the aforesaid Tribunal (respondent No. 1), challenging the said election on various allegations amongst which, inter alia, were charges of corrupt and illegal practices.
At the hearing of the aforesaid election case, evidence was adduced before the Tribunal, upon which a notice was served on the petitioner on the 27th of November 1964, under Article 26, clause (2), proviso (a), of President's Order No. 13 of 1962, to show cause why he should not be named in the judgment for having committed corrupt and illegal practices enumerated in the said notice. This date is important because it marks the point of time on which the proceedings against the petitioner were set in motion under the aforesaid President's Order No. 13 of 1962.
Petitioner showed cause denying the charges that were made against him. He also impeached the maintainability of the notice which was served upon him. Evidence was further led against him on the aforesaid allegations and witnesses were cross‑examined on his behalf.
The Election Tribunal came to a finding adverse to the petitioner under the above‑mentioned Articles 61 and 62 of the said Order and named him in the judgment that was pronounced by it, on the 30th of April 1965. It is also equally important to remember the aforesaid date.
Being aggrieved by the aforesaid judgment and order passed by respondent No. 1 (Election Tribunal, Last Pakistan), the petitioner moved this Court under Article 98 of the Constitution and obtained the present Rule nisi, calling upon the respondents to show cause why the order passed by respondent No. 1 (The Election Tribunal, East Pakistan), in so far as it related to the petitioner, as stated above, should not be declared to be void, without lawful authority and of no legal effect. The Rule nisi, as I have said, was heard by a Division Bench of two learned Judges of this Court, who were equally divided in their opinion. Hence this reference.
I may mention, at the outset, that no argument was addressed to us on the merits of the case relating to findings of fact against the petitioner. Mr. Brohi had also refrained from canvassing such questions of facts before the Division Bench which had initially heard the present Rule nisi because it was felt that, although some findings could be impeached, it would have been difficult to assail all such finding.
We have had the advantage of hearing full arguments from learned Advocates who have appeared for the respective parties before us. Upon a perusal of the judgments pronounced by the two learned Judges, who constituted the aforesaid Division Bench, I am of opinion that, on the reasonings accepted by Sattar, J. and on a reconsideration of Article 225 (1), the decision should have been in conformity with the opinion expressed by his Brother Judge and that it should have been in favour of the petitioner. In fact, this was exactly the argument with which Mr. Brohi, appearing for the petitioner, had prefaced his address to us.
I find myself in such complete agreement with the judgment pronounced by Salahuddin Ahmed, J., that the view expressed in this judgment would only amount to an elucidation thereof.
Mr. A. K. Brohi, who has appeared on behalf of the petitioner, has advanced before us, more elaborately, with his usual lucidity of expression, the arguments which he had addressed to the said Division Bench.
The main contention of Mr. Brohi is that the impugned order, which was passed under President's Order No. 13 of 1962, published on 29th April 1962, as amended, much later, by President's Order No. 35 of 1962, which came into effect on the 18th of July 1962, had ceased to have any legal effect on the 21st of November 1964, when the first Electoral College under Article 158 of the Constitution was constituted. He has argued that the aforesaid Orders Nos. 13 and 35 of 1962 were passed under a special and distinct kind of legislative authority created by Article 229 (8) of the Constitution.
He has asked us to note that that Article was self‑effacing in its essentially temporary and transitory character. He has emphasised that, in accordance with its specific terms, the said Article 229 ceased to have any effect on the formation of the first Electoral College under Article 158 of the Constitution which was, in fact, formed on the 21st of November 1964. This is another date of consequential nature.
Mr. Brohi has further contended that on the 21st of November 1964, the date on which the Electoral College was formed under Article 158 of the Constitution, Article 229 of the Constitution expired in toto, that is to say, that anything done under that Article automatically lost its effectiveness. In this context, he has urged that President's Orders Nos. 13 and 35 of 1962, having expired on the 21st of November 1964, could not constitute the basis of the conviction of the petitioner and of the impugned order that was passed against him by the Election. Tribunal.
With regard to the proposition that Article 229 of the Constitution had ceased to be of any effect, under its own terms and in the circumstances stated above, there has been no contest before us and in fact, there has been, on this point, no disagreement between the two learned Judges, who had in the first instance heard the present petition, although in the Judgment pronounced by Sattar, J., there occur passages which seems to convey the impression that, in a different context, he was hesitant to accept the proposition that laws passed under Article 229 (8) are temporary and transitory themselves.
Mr. Ahmad Sobhan, who appeared on behalf of the respon dents, has readily conceded that the said Article 229 itself would cease to have effect with, and consequent upon, the formation of the Electoral College under Article 158 of the Constitution, that is, on the 21st of November 1964. He has, however, submitted that laws made by the President under clause (8) of the said Article, which confers upon the President a power to make such laws, would not themselves expire with the cessation of such power on the 21st of November 1964. According to his submission, President's Order No. 13 of 1962 and similar Orders passed by him would continue to have effect, if they were passed at a time when the President had the capacity to pass such Orders, even when the Article, which confers such law‑making power, comes to an end by a process of self- explosion. Is that so?
In this connection it will be useful to notice that the present Constitution brings in three different kinds of Legislative machineries, the first being the National and the two Provincial Assemblies, the second being the Ordinance‑making power o the President and of the Provincial Governors and the third category is sui generis, for example, the provisions of Article 229 of the Constitution. The first two are supplementary and have vital points of contact with each other. The third category of legislative power, that is, power under Article 229 (8), constitutes a distinct class by itself and has no nexus with the other two. It stands apart. Article 229 is self‑existing and is expressly self‑effacing. It is distinct in its origin and in its tenure of life. It professes to be transitory and temporary. The entire machinery created by Article 229 expires under its self‑exploding process.
For the purpose of bringing the Constitution into effect certain initial and preliminary steps become necessary in order to set it in motion before it could move under its own locomotion. Certain stop‑gap, ad hoc and interim arrangements had to be made in order to work the Constitution. This is the genesis of Article 229.
Article 224 (1) has expressly stated that the Constitution will come into force on the day on which the first meeting of the National Assembly will be held, which, in this case, happens to be the 8th of June 1962. This provision itself necessitated some preliminary, temporary and transitory arrangements adumbrated by clause (2) of Article 224, which reads thus:
"(2) This Constitution shall, to the extent necessary‑----
(a) to enable the first general elections of members of the National Assembly and of each Provincial Assembly to be conducted and for the first meeting of the National Assembly to be held; and
(b) to enable any other thing to be, done which, for the purposes of this Constitution, it is necessary to do before the commencing day, come into force upon the enactment of this Constitution.
It is important to note the language of Article 224 (2) in setting out its object and purpose as stated above. It is clear that certain interim arrangement had to be brought into force prior to the date on which the Constitution would itself take effect in its entirety. Mr. Brohi has rightly pointed out that in Article 224 there is no reference to any specified article of the Constitution. Clause (2) of Article 224 merely says that only such part of the Constitution as becomes necessary for the purpose of enabling the holding for the first general election of the members of the National Assembly and those of the two Provincial Assemblies and for any such ancillary purpose, would come into force at once, prior to the coming into force of the Constitution as a whole. It is patent that Article 224 (2) contemplates transitional arrangements which are necessary for bringing the Constitution into operation on the appointed date. Its purpose is limited to that end. This is clear enough.
It would be seen that Article 229 of the Constitution) is a constitutional device which answers the requirement of clause (2) of Article 224 of the Constitution.
It would be useful, at this stage, to quote the language of Article 229 (1) of the Constitution, which reads thus:
"229. (1) This Article shall have effect until an Electoral College of Pakistan is constituted as provided in Article 158 but shall not affect the operation of any other provision of this Constitution that is not inconsistent with this Article."
It is patent from the very language of the provisions quoted above that this Article was designed to be temporary. Its object was to effect an interim arrangement as specified in Article 224 (2) of the Constitution. The Article itself was expressly kept alive until the formation of the Electoral College under Article 158 of the Constitution. It assumed the nature and character of a time‑bomb which would explode itself when the time‑limit for its explosion bad been reached, namely, the formation of the said Electoral College. The outer limit has been specifically and precisely stated, although the date, which could not be anticipated ab initio, was not mentioned. In passing, I "may note that Article 229 (1) has also specifically provided that "any other provision of the Constitution", which was inconsistent with that Article (Article 229) must give way. For example, Article 225 will be governed by Article 229 if any ‑clash between the two is noticed.
In fact, this Article (Article 229) takes its place in a chapter, namely, Chapter 3 of Part XII of the Constitution, which has been expressly stated to be "transitional" and "temporary" provisions. The description of the chapter is by no manner of means unimportant. But, even without such external aid, the language of Article 229 itself is clear. The Article is not a novel device. Such temporary and transitional provisions recur in successive constitutional instruments relating to this subcontinent.
In this connection I may add that both the learned Judges of the referring Bench have unanimously taken the aforesaid view with regard to transitory character of Article 229 itself. A comparison between the provisions of Article 229 and Part VII of the Constitution would make it abundantly clear that such was the undoubted scheme of the Constitution.
The next question is: What would happen to the laws made under the Article when the Article itself dies as a life‑giving force? The principle which governs this question is so well- settled and so firmly imbedded in jurisprudential concepts that it hardly requires a further re‑statement. The principle may be stated thus: Whenever a machinery of law, which constitutes the life‑giving source from which other pieces of legislation derive their life‑stream, expires and dies, everything done under it, including "subordinate" legislation made thereunder, automatically dies when the source of life is dried up. The' logic of this is patent enough. When the life‑source dies, anything, which derives life from it, suffers a natural death as a matter of course. It is as much an axiom of common‑sense and logic as it is a biological verity.
In recognition of the aforesaid principle that Article 225 of the Constitution and similar provisions in other constitutional instruments, seek to "continue" and keep alive laws which would have, but for such saving clauses expired. Similar provisions which…
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