Election Commission of Pakistan

P L D 1991 Journal 76 P L D 1991 Journal 76 [Election Commission of Pakistan] Before Justice Naimuddin, Chief Election Commissioner, Khalil‑ur‑Rehman Khan and Amir‑ul‑Mulk Mengal, Members In re: Mrs. MEMOONA SIBGHAT‑‑Petitioner In the matter of seats reserved for women in the National Assembly/Provincial Assemblies, decided on 11th February, 1991. Constitution of Pakistan (1973)‑‑ ‑‑‑‑Art. 51‑‑‑Representation of the People Act (LXXXV of 1976), S.47‑‑ Reserved seats for women until expiration of period of ten years from commencing date or holding of third general election‑‑‑Constitution remaining in abeyance from 5th July, 1977 until 29th December, 1985 due to promulgation of Martial Law‑‑‑Period during which Constitution remained in abeyance whether to be excluded for the purpose of counting the period reserved for seats for women‑‑‑Provision for reserved seats for women had exhausted itself by efflux of time and by holding of requisite general elections. The Constitution came into force on 12th April, 1973, therefore, 10 years period expired on 11th April, 1983. But on 5th July, 1977, Martial Law was promulgated and Constitution was kept in abeyance until 29th December, 1985. Therefore, the period when the martial law was enforced in the country i.e. from 5th July, 1977 to 29th December, 1985 whether to be excluded. The general election was held on 24th October, 1990. from 12th April, 1973 to 24th October, 1990 the total period comes to 17 years, 6 months and 12 days. Therefore, unless under some law or principle or authority the period during which Martial Law remained in force i.e. from 5th July, 1977 to 29th December, 1985 (8 years, 5 months and 25 days) could be excluded, the period of ten years provided in the Constitution has already expired. No law, principle or authority had been cited in support of the proposition that the period during which Martial Law remained in force in the country could be excluded. Once time for the purpose of Article 51 of the Constitution had started running, it did not stop. The provision of reserved seats for women contained in clause (4) of Article 51 was amended and the word "second" used in clause (4) was substituted by word "third" and the 10 seats originally provided were increased to twenty by the Constitution (8th Amendment) Act, 1985. In the country before the general election of October, 1990 three general elections were held, one in March, 1977, the second in February, 1985 and the third in November, 1988. Unless in respect of any of these elections it was held that any one or more of them was not held under the Constitution, the provision for reserved seats had exhausted because this provision was available until third general election and not beyond that. There is no doubt that election held in March, 1977 was held under the Constitution. It is irrelevant that subsequently the Martial Law was imposed and the National Assembly and the Provincial Assemblies were dissolved. Even election to the women seats were held subsequent to general election. Second general election held in February, 1985 was held under the Constitution by virtue of the deeming provisions incorporated in the form of Article 270‑B. It is not in dispute that the third general election held in 1988 was held under the Constitution. It may be remembered that the Constitutional provision is that "Until the expiration of a period of ten years from the commencing day or the holding of the third general elections to the National Assembly, whichever occurred later". Now, if three general elections have been held and this has happened after the expiry of ten years from the commencing day, then constitutional obligation to have election to the women seats also stood fulfilled. Even if the election held in March, 1977 was excluded for any reason still two general elections i.e. one held in 1985 and the other held in 1988 satisfy the provisions of Article 51, clause (4) of the Constitution. First election to the seats reserved for women in National Assembly and the Provincial Assemblies was held in March, 1977 under the Constitution pursuant to and in accordance with provisions of section 47 of the Representation of the People Act, 1976 and the second election to the seats reserved for women in the National Assembly and Provincial Assemblies was held in 1985 and the third election to the seats reserved for women was held pursuant to and in accordance with the same provisions in 1988. Since the constitutional provision for reserved seats for women had exhausted itself by efflux of time and by holding general elections as required under the Constitution, section 47 of the Representation of the People Act, 1976 was omitted from the Representation of the People Act, 1976 and because of this omission the Commission was no more under obligation to hold general election to the women seats. Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657 ref. Haji Muhammad Saifullah Khan for Petitioner. Aziz A. Munshi, Attorney‑General for Pakistan. Date of hearing: 11th February, 1991. JUDGMENT JUSTICE NAIMUDDIN, CHIEF ELECTION COMMISSIONER.‑‑ This is an application by Mrs. Memoona Sibghat praying for holding election to the 20 seats reserved for women. She has also prayed for holding election to the seats reserved for women and allocated to the provinces in accordance with the Constitution and law. We have heard Haji Muhammad Saifullah Khan Advocate for, the petitioner and MrAziz A. Munshi, Attorney‑General for Pakistan who appeared pursuant to notice issued by us. The learned Advocate for the petitioner submitted that Election Commission is bound to hold election to the seats reserved for women in the National Assembly and the Provincial Assemblies as the period of ten years provided in clause (4) of Article 51 of the Constitution has not expired and as also three general elections to the National Assembly have not been held as provided therein. In order to appreciate the argument it is necessary that the clauses (1) to (6) of Article 51 of the Constitution may be quoted here. These read:‑‑ "51.‑‑(1) The National Assembly shall consist of (two hundred and seven Muslim) members to be elected by direct and free vote in accordance with law. (2) A person shall be entitled to vote if‑‑ (a) he is a citizen of Pakistan; (b) he is not less than twenty‑one years of age; (c) his name appears on the electoral roll; and (d) he is not declared by a competent Court to be of unsound mind. (2‑A) In addition to the number of seats referred to in clause (1), there shall be in the National Assembly ten additional seats reserved as follows for the persons referred to in clause (3) of Article 106‑‑ Christians 4 Hindus and persons belonging to Scheduled Castes 4 Sikh, Budhhist and Parsi communities and other non‑Muslims 1 Persons belonging to the Quadiani group or the Lahori group (who call themselves Ahmadis) 1 (3) The seats in the National Assembly shall be allocated to each Province, the Federally Administered Tribal Areas and the Federal Capital on the basis of population in accordance with the last preceding census officially published. (4) Until the expiration of a period of ten years from the commencing day or the holding of the third general election to the National Assembly, whichever occurs later, twenty seats in addition to the number of seats referred to in clause (1) shall be reserved for women and allocated to the Provinces in accordance with the Constitution and law. (4‑A) The members to fill the seats referred to in clause (2A) shall be elected, simultaneously with the members to fill the seats referred to in clause (1), on the basis of separate electorates by direct and free vote in accordance with law. (5) As soon as practicable after the general election to the National Assembly, the members to fill seats reserved for women which are allocated to a Province under clause (4) shall be elected in accordance with law on the basis of the system of proportional representation by means of a single transferable vote by the electoral college consisting of the persons elected to the Assembly from that Province. (6) Notwithstanding anything contained in this Article, the President may, by Order, make such provisions as to the manner of filling the seats in the National Assembly allocated to the Federally Administered Tribal Areas as he may think fit." A perusal of clause (4) quoted above shows that it provides that until the expiration of a period of ten years from commencing day or the holding of the third general election to the National Assembly, whichever occurs later, 20 seats in addition to the number of seats referred to in clause (1) shall be reserved for women and allocated to the Provinces in accordance with the Constitution and law. It was submitted by Haji Muhammad Saifullah Khan that although 10 years have expired from the commencing day but if time during which the Constitution was kept in abeyance or the country was under Martial Law, is excluded, then 10 years have not yet been expired. The Constitution came into force on 12th April, 1973. Therefore, 10 years period expired on 11th April, 1983. But on 5th July, 1977, Martial Law was promulgated and Constitution was kept in abeyance until 29th December, 1985. Therefore, Haji Muhammad Saifullah Khan submitted that the period when the Martial Law was enforced in the country i.e. from 5th July, 1.977 to 29th December, 1985 is to be excluded. The general election was held on 24th October, 1990. From 12th April, 1973 to 24th October, 1990 the total period comes to 17 years, 6 months and 12 days. Therefore, unless under some law or principle or authority the period during which Martial Law remained in force i.e. from 5th July, 1977 to 29th December, 1985 (8 years, 5 months and 25 days) could be excluded, the period of ten years provided in the Constitution has already expired. But learned counsel for the petitioner has not cited any law, principle or authority in support of the proposition that the period during which Martial Law remained in force in the country could be excluded. Once time for the purpose of Article 51 of the Constitution had started running, it did not stop. It was then argued that the other condition, namely the provision regarding the reserved women seats had to remain in force until the holding of 3rd general election to the National Assembly and Provincial Assemblies was still not satisfied. It was submitted by the learned counsel for the petitioner that under the Constitution only one general election in 1988 was held. He further submitted that the 1977 Election had become ineffective and should not be counted. He also submitted that the general election held in February, 1985 was not held under the Constitution but it was held under the Houses of Parliament and Provincial Assemblies (Election) Order, 1977 (President's (Post‑Proclamation) Order No.5 of 1977). Therefore it should also not be counted for the purpose of Article 51 of the Constitution. Accordingly he submitted that only one election in November, 1988 was held under the Constitution. According to the learned counsel general election held in October, 1990 was the second general election and the women will have to be elected again in the third general election which will be held in 1995. These submissions are not correct as would be shown in a moment. The provision of reserved seats for women contained in clause (4) of Article 51 was amended and the word "second" used in clause (4) was substituted by word "third" and the 10 seats originally provided were increased to twenty by the Constitution (8th Amendment) Act, 1985. In the country before the general election of October, 1990 three general elections were held, one in March, 1977, the second in February, 1985 and the third in November, 1988. Unless in respect of any of these elections it is held that any one or more of them was not held under the Constitution, the provision for reserved seats has exhausted because this provision was available until third general election and not beyond that. There is no doubt that election held in March, 1977 was held under the Constitution. It is irrelevant that subsequently the Martial Law was imposed and the National Assembly and the Provincial Assemblies were dissolved. Even election to the women seals were held subsequent to general election. On 28th July, 1977 the President promulgated Order No.5 of 1977 providing that the election held thereunder shall be deemed to have been held under the Constitution and shall have effect accordingly. Accordingly the election Of February, 1985 also was held under the Constitution. Further, the Constitution (5th Amendment) Act, 1985 which was enacted on 11th November, 1985 also added an Article in the form of Article 270‑B which reads as under:‑ "270‑B.‑‑Notwithstanding anything contained in the Constitution, the elections held under the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, to the Houses and the Provincial Assemblies shall be deemed to have been held under the Constitution and shall have effect accordingly." We may mention that the above provisions were not noticed by Haji Muhammad Saifullah Khan or brought to the notice of the Commission. In view of the above provision it is clear that the second general election held in February, 1985 was held under the Constitution by virtue of the deeming provisions incorporated in the form of Article 270‑B. It is not in dispute that the third general election held in 1988 was not held under the Constitution. It may be remembered that the Constitutional provision is that "Until the expiration of a period of ten years from the commencing day or the holding of the third general election to the National Assembly, whichever occurs later" (underlining is ours). Now, if three general elections have been held and this has happened after the expiry of ten years from the commencing day, then constitutional obligation to have election to the women seats also stands fulfilled. It was submitted by the learnc4 Attorney‑General that if we look at the language employed and the intention expressed in Article 51, clause (4) election to the women seats was required to be held until the expiration of period of ten years from the commencing day of the Constitution or until the holding of third general election. He submitted that `until' means `up to' and it will not include the third general election. Therefore even if the election held in March, 1977 is excluded for any reason still two general elections i.e. one held in 1985 and the other held in 1988 satisfy the provisions of Article 51, clause (4) of the Constitution. We have no valid reasons to reject the submission which has force. It is ascertainable from our record that the first election to the scats reserved for women in National Assembly and the Provincial Assemblies was held in March, 1977 under the Constitution pursuant to and in accordance with provisions of section 47 of the Representation of the People Act, 1976 and the second election to the seats reserved for women in the National Assembly and Provincial Assemblies was held in 1985 and the third election to the scats reserved for women was held pursuant to and in accordance with tile same provisions in 1988. Since the constitutional provision for reserved scats for women had exhausted itself by efflux of time and by holding general elections as required under the Constitution, section 47 of the Representation of the People Act, 1976 was omitted from the Representation of the People Act, 1976 and because of this omission the Commission was no more under obligation to hold general election to the women seats. It may be useful if section 47, which was omitted by Ordinance No. V of 1988, is quoted here :‑ "47. Election to seats reserved for Women.‑‑(1) Nothing in Chapters III and IV shall apply to an election to till a seat in an Assembly for women. (2) The members for scats reserved for women in the National Assembly which are allocated to a Province shall be elected, subject to the provisions of clause (5) of Article 51 on the basis of the system of proportional representation by means of a single transferable vote by the electoral college consisting of the persons elected from that province. (3) The members for scats reserved for women in a Provincial Assembly shall be elected, subject to the provision of clause (4) and clause (6) of Article 106 on the basis of the system of proportional representation by means of a single transferable vote by the electoral college consisting of the persons elected to the Assembly. (4) The Commission shall hold and conduct the election to fill the seats reserved in an Assembly for women in such manner as may be prescribed." Therefore, we do not find any force in this petition and accordingly dismiss it. Before parting with the order we may state that Haji Muhammad Saifullah Khan had heavily relied on a Supreme Court judgment in the case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan reported in PLD 1977 SC 657 in support of his contention that the acts of the Martial Law Administrator were condemned and not legitimised. But we do not consider it necessary to discuss this case in view of the clear constitutional provisions quoted above. These are the reasons for the short order dated 11‑2‑1991 whereby we dismissed the petition. AA./59/E Application dismissed.