Election Commission of Pakistan

P L D 1991 Journal 51 P L D 1991 Journal 51 [Election Commission of Pakistan] Before Justice Naimuddin, Chief Election Commissioner, Justices Muhammad Rafiq Tarar and Abdul Razzak A. Thahim, Members HUMAYUN SAIFULLAH KHAN‑‑‑Petitioner versus MUHAMMAD AYUB KHAN TANOLI and 3 others‑‑Respondents Reference under section 8‑B of the Political Parties Act, 1962, decided on 15th May, 1991. North‑West Frontier Province Provincial Assembly (Powers, Immunities and Privileges) Act (IX of 1988)‑‑ ‑‑‑‑S. 7‑‑‑Provincial Assembly of the North‑West Frontier Province Privileges Act (XVII of 1973), S. 5‑‑‑Representation of the People Act (LXXXV of 1976), Ss. 57, 64 & 103‑AA.‑‑Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1977), Art. 13(4)‑‑‑Constitution of Pakistan (1973), Arts. 213 to 226‑‑ Privileges of Members of Provincial Assembly‑‑‑Entitlement to claim privilege by such Members in proceedings before Election Commission‑‑‑Election Commission whether a Tribunal. Provincial Assembly of the North‑West Frontier Province Privileges Act, 1973 which stands repealed by North‑West Frontier Provincial Assembly (Powers, Immunities and Privileges) Act, 1988, mentioned and treated "Election Commission" and Election Tribunal as two separate entities. If the legislature wanted to give the privilege under section 7 of Act, IX of 1988 in proceedings before the Commission, the word "Commission" would and should have been used therein. The nature of the Tribunal before whom the privilege can be claimed has also been specified and it is that Tribunal which has powers under the Civil Procedure Code, 1908. The Election Commission as such has not been given any power under the Code of Civil Procedure. Word `Tribunal' in section 7 has a reference to a Tribunal appointed for trial of election petitions under section 57 of the Representation of the People Act, 1976, because under section 64 of the Act of 1976, powers of Civil Court have been conferred on such Tribunal. The Election Commission as such has not been conferred any power under the Code of Civil Procedure either in Part VIII of the Constitution or under the Act of 1976. Provincial Legislature did not intend to confer the privilege claimed by the Members in proceedings before the Commission. If the Legislature wanted to do so it would have either mentioned the word "Commission" in section 7 or at least it would nor have specified the particular nature of the Tribunal. Whenever any Legislative Authority or Legislature wanted the Commission to act as a Tribunal, it said so by adding deeming clause or using deeming expression that is, that the Commission shall be deemed to be Tribunal which fact also establishes that the Commission is not a `Tribunal' as such. To illustrate the point further, reference may be made to two provisions, one in the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, and the other in Representation of the People Act, 1976, wherein it is provided that the Election Commission is deemed to be Tribunal. Under both the enactments it is deemed to be a Tribunal for limited purpose of declaring poll void. Under Article 13(4) of the Houses of Parliament and Provincial Assemblies (Elections). Order, 1977 [President's (Post‑Proclamation) Order No.5 of 1977], it is provided that while exercising the powers conferred on the Commission by clause (1) the Commission shall be deemed to be a Tribunal to which election petition has been presented. Section 103‑AA of the Representation of People Act, 1976, also relates to the power of the Commission to declare the poll void and in its subsection (3) says that "while exercising the powers conferred on it by subsection (1) the Commission shall be deemed to be a Tribunal". This section, however, stands since repealed. The privilege claimed is not available to the Members in proceedings before the Election Commission. Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486; Jammu and Kashmir Tehrik Ammal Party and 11 others v. The Azad State of Jammu and Kashmir and another PLD 1985 Azad J&K 95 and Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 ref. Abdul Hakeem Khan for Petitioner. Raja Muhammad Anwar with Sardar Khan, Muharram Ali Abbasi for Respondents (in all 4 Petitions) Respondent No.1 in person. Date of hearing : 15th May, 1989. ORDER These are four petitions filed by Mr. Humayun Saifullah Khan against Muhammad Ayub Khan Tanoli and three others who were elected as Members to the N.‑W.F.P. Assembly in the elections held in November, 1988. 2. The petitioner claims to be the leader of the Parliamentary Party known as I.J.I. in the N.‑W.F.P. Assembly. He also claims that the four respondents to the four petitions were elected on I.J.I. ticket which is claimed to be a political party. He further claims that they, by joining the coalition Government of N.‑W.F.P., have violated the provisions of section 8‑B of the Political Parties Act, 1962 (hereinafter called the Act of 1962) which reads as follows:‑‑ Section 8‑B(1),‑"If a member of a House:‑‑ (a) having been elected as such as a candidate or nominee of a political party, or (b) having been elected as such otherwise than as a candidate or nominee of a political party and having become a member of a political party after such election. defects or withdraws himself from the political party he shall, from the date of such defection or withdrawal, be disqualified from being a member of the House for the unexpried period of his term as such member, unless he has been re‑elected at a bye‑election held after his disqualification." 3. On 22nd April, 1989, the last date of hearing, issues were framed. Parties were directed to tile lists of witnesses by 29th April, 1989, and hearing was fixed for today. 4. Today, the petitioner with his learned counsel is present. Mr. Muhammad Ayub Khan Tanoli the respondent in one of the petitions and the learned counsel for the respondents are present. 5. The learned counsel for the respondents has made an application in the case of Mr. Humayun Saifullah Khan v. Mr. M. Ayub Khan Tanoli and three others, under section 7 of Ordinance No.VIII of 1988 (Correct No. is IX of 1988) for postponement of proceedings to a date 14 days after the conclusion of the session of the Provincial Assembly N.‑W.F.P. Section 7 of the N.‑W.F.P. Provincial Assembly (Powers, Immunities and Privileges) Act, 1988 (hereinafter called the Act of 1988) provides that:‑‑ "notwithstanding anything contained in any other law for the time being in force, no Civil or Revenue Court or any Tribunal having powers under the Civil Procedure Code, 1908 (Act V of 1908) shall proceed with any matter in which a member is a party:‑‑ (a) during the period commencing fourteen days before the commencement of a session and ending fourteen days after the conclusion of the session and (b) during the period commencing seven days before the commencement of the meeting of a Committee of which he is a member and ending seven days after the conclusion of the meeting; unless, by application made in writing to the Court, the privilege conferred by this section is waived by the Member concerned with the matter, or where more Members than one are so concerned, by all of them." 6. On the basis of the above provisions it is contended by the learned counsel for the respondents that the Election Commission is a Tribunal and therefore the privilege conferred under section 7 of the Act of 1988, on the members of the N.‑W.F.P. Assembly is also available in proceedings before the Commission. On the other hand, it is contended by the learned counsel for the petitioner that Commission is not a Tribunal and the privilege claimed is not available in proceedings before the Commission. Therefore the question that requires consideration is whether the Commission is a Tribunal or not. Of course, the respondent has not contended that Commission is a Court within the meaning of section 7 of the Act of 1988. 7. Before considering this contention we may first refer to a similar provision, namely, section 5 contained in Provincial Assembly of the N.‑W.F.P. Privileges Act, 1973 (Act XVII of 1973), hereinafter called the Act XVII of 1973, which was repealed by Act IX of 1988. It reads:‑‑ "5(1) Notwithstanding anything to the contrary contained in any law for the time being in force no Civil or Revenue Court and no Commission or Election Tribunal shall proceed during a session of Assembly and for a period of 14 days before and 14 days after the session, with any matter before it in which a member is a party, unless the privilege conferred by section 4 is waived by application made in writing to the Court, Commission or Tribunal as the case may be by the Member concerned with the matter and where more Members than one are so concerned, by all of them. (2) The provisions of subsection (1) shall apply to all matters pending immediately before the commencement of this Act in any Civil or Revenue Court or before any Commission or Election Tribunal, in which a Member is a party and no such Court, Commission or Tribunal shall proceed further with such matter, unless the privilege referred to therein is waived or the period specified therein has elapsed." 8. Section 5 of Act XVII, was however, omitted by the Central Ordinance No. XII of 1977 dated 18th March, 1977. 9. Thereafter Ordinance No. XII of 1977 was repealed by Central Act No. XXI of 1977 dated 16th May, 1977, and section 5 was reintroduced but in an amended form: The amendments introduced by Act XXI of 1977 read as follows:‑‑ In section 5.:‑‑ (a) in subsection (1),‑ (i) the words "or Election Tribunal" shall be omitted and (ii) for the comma and words "Commission or Tribunal" the words "or Commission" shall be substituted and (b) in subsection (2),‑ (i) the words "or Election Tribunal" shall be omitted and (ii) for the comma and words "Commission or Tribunal" the words "or Commission" shall be substituted. 10. Accordingly, section 5 of N.‑W.F.P. Act No. XVII of 1973 as amended by Act XXI of 1977, read as follows:‑‑ "5. Freedom from appearance in civil cases etc.‑(1) Notwithstanding anything to the contrary contained in any law for the time being in force, no Civil or Revenue Court and no Commission shall proceed during a session of the Assembly and for a period of fourteen days before and fourteen days after the session with any matter before it in which a Member is a party, unless the privilege conferred by section 4, is waived, by application made in writing to the Court or Commission as the case may be, by the Member concerned with the matter, and where more Members than one are so concerned, by all of them. (2) The provisions of subsection (1) shall apply to all matters pending immediately before the commencement of this Act, in any Civil or Revenue Court, or before any Commission in which a Member is a party, and no such Court or Commission shall proceed further with such matter, unless the privilege referred to therein is waived in accordance with the provisions thereof the period specified therein has elapsed. 11. It will be seen from the above‑quoted provisions that in Act, XVII of 1973 (since repealed), the Commission and the Election Tribunal were mentioned and treated as two separate entities. Now, if the legislature wanted to give the privilege under section 7 of Act, IX of 1988 in proceedings before the Commission, the word "Commission" would and should have been used therein. Further, the nature of the Tribunal before whom the privilege can be claimed has also been specified and it is that Tribunal which has powers under the Civil Procedure Code, 1908. The Commission as such has not been given any power under the Code of Civil Procedure. It seems that the word `Tribunal' in section 7 has a reference to a Tribunal appointed for trial of election petitions under section 57 of the Representation of the People Act, 1976, because under section 64 of the Act, of 1976, powers of Civil Court have been conferred on such Tribunal. 12. Sections 57 and 64 read as follows:‑ "57. Appointment of Tribunal.‑‑(1) For the trial of election petitions under this Act, the Commissioner shall appoint as many Election Tribunals as may be necessary. (2) An Election Tribunal shall consist of a person who has been, or is, or, at the time of his retirement as a District and Sessions Judge, was qualified to be, a Judge of a High Court, Section 64. Power of the Tribunal.‑‑The Tribunal shall have all the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908), and shall be deemed to be a Civil Court within the meaning of sections 476, 480 and 482 of the Code of Criminal Procedure, 1898 (Act, V of 1898). 12. The Election Commission as such has not been conferred any power under the Code of Civil Procedure either in Part VIII of the Constitution or under the Act of 1976. Indeed, the powers and procedure of the Commission has been provided in section 3 of the Act of 1976 which reads as follows:‑‑ "3. Procedure of the Commission.‑‑(1) Subject to the provisions of this section, the Commission shall regulate its procedure. (2) If, upon any matter requiring a decision of the Commission, there is difference of opinion among its members, the opinion of the majority shall prevail and the decision of the Commission shall be expressed in terms of the opinion of the majority. (3) The Commission may exercise its powers and perform its functions notwithstanding that there is a vacancy in the office of any one of its members or that any one of its members is, for any reason, unable to attend its proceedings and the decision of the other two members shall have the effect of the decision of the Commission: Provided that, in the event of a difference of opinion between the two members attending the proceedings of the Commission, the matter shall be placed for decision before the Commission. 13. We are, therefore, of the view that the N.‑W.F.P. Legislature did not intend to confer the privilege claimed by the Members in proceedings before the Commission. If the Legislature wanted to do so it would have either mentioned the word "Commission" in section 7 or at least it would not have specified the particular nature of the Tribunal. 14. We are further fortified in our opinion by the fact that whenever any Legislative Authority or Legislature wanted the Commission to act as a Tribunal it said so by adding deeming clause or using deeming expression that is, that the Commission shall be deemed to be a Tribunal which fact also establishes that the Commission is not a `Tribunal' as such. We may here refer to two provisions, one in the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, and the other in Representation of the People Act, 1976, wherein it is provided that the Election Commission is deemed to be Tribunal. Further, under both the enactments it is deemed to be a Tribunal for limited purpose of declaring poll void. Under Article 13(4) of the Houses of Parliament and Provincial Assemblies (Elections) Order 1977 [President's (Post‑Proclamation) Order No.5 of 1977], it is provided that while exercising the powers conferred on the Commission by clause (1) the Commission shall be deemed to be a Tribunal to which election petition has been presented. Relevant Clause (4) of Act 13 ibid reads:‑‑ "13. Power of Commission to declare a poll void.‑ (1)-------------------------------------------- (2) -------------------------------------------- (3) -------------------------------------------- (4) While exercising the powers conferred on it by clause (1) the Commission shall be deemed to be a tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter VII of the Representation of the People Act, 1976 (LXXXV of 1976), regulate its own procedure." 15. Section 103AA of the Representation of People Act, 1976, also relates to the power of the Commission to declare the poll void and in its subsection (3) says that "while exercising the powers conferred on it by subsection (1) the Commission shall be deemed to be a Tribunal". This section, however, stands since repealed. 16. Accordingly, we hold that the privilege claimed is not available to the Members in proceedings before the Commission. 17. Now remains to be dealt with the cases cited by the learned counsel for the respondents. He relied upon three cases namely, (1) Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque PLD 1963 SC 486, (2) Jammu and Kashmir Tehrik Ammal Party and 11 others v. The Azad State of Jammu and Kashmir and another PLD 1985 Azad J&K 95 and (3) Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416. In the first named case it was observed that the "Chief Election Commission" was not a Court and it would obviously be inapt for an issue of Constitutional importance to be referred to him for decision. This observation was made in the context of the contention that the Election Commissioner was a competent authority to look into the validity of the impugned legislation. It was argued that the High Court alone was competent to resolve the controversy as the Chief Election Commissioner was not vested with jurisdiction to look into the vires of the impugned legislation. In the second case reference was made to the above dicta of the Supreme Court in Fazlul Quader Chowdhry's case. The learned counsel failed to point out that the Court in any of the cases cited by him held that the Election Commission was a Tribunal. Nor has he been able to point out that any of the provisions of various Acts and Ordinances dealt with herein came up for consideration in these cases. Therefore, the cited cases are not relevant. 18. We may also mention that the learned counsel for the petitioner submitted that the Provincial Legislature has no powers to grant the privilege contained in section 7 of Act, IX of 1988 because Election Commissioner and Election Commission are the subjects which are reserved for Federal Legislature as per item No.41 of the Fourth Schedule to the Constitution and if it is held that it applies to the Commission then the provisions are ultra vires the Provincial Legislature. However, we do not consider it necessary to go into this submission as we have already held that the privilege claimed under section 7 could not be claimed in the proceedings of present nature before the Commission. 19. We, therefore, reject the application. These are the reasons, for the short order separately passed earlier. A.A./56/E Application rejected.