1994CLC 5 (PLP)

Having heard the arguments from both sides, I shall now make an endeavour to broach the subject for its resolution. Article 41 of the Constitution provides for a President of Pakistan. It says that he shall be Head .of the State and shall be symbol of unity of the republic. Sub‑Article (2) laid down qualifications for his election to the office of President. Sub‑Article (3) deals with the manner of his election and speaks of his electoral college. Article 42 provides that before entering upon office, the President shall make before the Chief Justice of Pakistan oath in the form set out in the Third Schedule. The term of office prescribed for the President was five years from the day of his entering upon his office. Leaving aside unnecessary details relating to powers and functions of the President, I shall straightaway come to Article

49. Since the decision of this writ petition closely depended upon its construction, it shall be profitable to quote it. It reads:‑‑ "49: ‑‑(1) If the office of President becomes vacant by reason of death, resignation or removal of the President, the Chairman or, if he is unable to perform the functions of the office of President, the Speaker of the National Assembly shall act as President until a President is elected in accordance with clause (3) of Artice 41. (2) when the President, by reason of absence from Pakistan or any other cause, is unable to perform his functions, the Chairman or, if he too is absent or unable to perform the functions of the office of President, the Speaker of the National Assembly shall perform the functions of President until the President returns to Pakistan or, as the case may be, resumes his functions. Sub‑Article (1) visualised a casusal vacancy in the office of President by death, resignation or removal, whereas sub‑Article (2) envisaged a temporary vacancy in the office of President. In the first eventuality, the office existed but the incumbent was non‑existent by death, resignation or removal. In the other eventuality, the office and the incumbent existed but there was an inability by the incumbent to perform his functions. In the first case of vacancy, the Chairman of Senate or the Speaker of the National Assembly, as the case may be "shall act as President until a President is elected in accordance with clause (3) of Article 41". In the second case, the Chairman or the Speaker of National Assembly, as the case may be, "shall perform the functions of President until the President returns to Pakistan or, as the case may be, resumes his functions". The language employed in the two sub‑Articles was markedly different. Unlike the Indian Constitution, in absence of Chairman of Senate and Speaker of the National Assembly to act as and perform the functions of President, probably our Constitution did not make a separate provision. In India, Article 70 of the Constitution provided for such an eventuality. It reads as:‑‑ "

70. Discharge of President's functions in other contingencies.‑‑ Parliament may make such provision as it thinks fit for the discharge of the functions of President in any contingency not provided for in this Chapter." The President (Discharge of Functions) Act, 1969 catered for a contingency visualized, by Article 70 of the Indian Constitution. The point for consideration was, whether Article 42 of the Constitution of Islamic Republic of Pakistan covered the case of President‑elect only or it brought within its domain the persons of Chairman of Senate and. Speaker of the National Assembly acting as and performing the functions of the President in the event of a casual or a temporary vacancy in office visualized in Article 49 of the Constitution. In my opinion, Article 42 covered the case of a President‑elect only and the cases of the Chairman of Senate or Speaker of the National Assembly acting as and performing the functions of President in the event of a vacancy in office were beyond its scope. The qualifications, for an elected President and his term of office and other related matters were different from those of the Chairman of Senate and Speaker of the National Assembly. The oaths of offices. prescribed for them were also dissimilar. The oath of office of President in terms of Article 42 of the Constitution runs as:‑‑ "(In the name of Allah, the most Beneficent, the most Merciful) I, do solemnly swear that I am a Muslim and believe in the Unity and Oneness of Almighty Allah, the Books of Allah, the Holy Qur'an being the last of them, the Prophethood of Muhammad (peace be upon him) as the last of the Prophets and that there can be no Prophet after him, the Day of Judgement, and all the requirements and teachings of the Holy Qur'an and Sunnah: That I will bear true faith and allegiance to Pakistan: That, as President of Pakistan, I will discharge my dudes, and perform by functions, honestly, to the best of my ability, faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law, and always in the interest of the sovereignty, integrity, solidarity, well‑being and prosperity of Pakistan: That I will strive to preserve the Islamic Ideology which is the basis for the creation of Pakistan: That I will not allow my personal interest to influence my official conduct or my official decisions: That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan: That, in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill‑will: And that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration or shall become known to me as President of Pakistan, except as may be required for the due discharge of my duties as President. (May Allah Almighty help and guide me (Ameen)!) The oath of office prescribed for a Prime Minister of Pakistan in terms of Article 91 (4) of the Constitution was identical with the oath of office prescribed for the President‑elect. Therefore, it need not be reproduced in extenso. The Chairman of Senate or the Speaker of National Assembly in terms of Articles 53 (2) and 61 read as:‑‑ "(In the name of Allah, the most Beneficent, the most Merciful) I, do solemnly swear that I will bear true faith and allegiance to Pakistan: That, as Speaker of the National Assembly (or Chairman of the Senate) and whenever I am called upon to act as President of Pakistan, I will discharge my duties, and perform my functions, honestly, to the best of my ability, faithfully, in accordance with the Constitution of the Islamic Republic of Pakistan, the law and as Speaker of the National Assembly in accordance with the rules of the Assembly (or as Chairman of the Senate in accordance with the rules of the Senate), and always in the interest of the sovereignty, integrity, solidarity, well‑being and prosperity of Pakistan: That I will, strive to preserve the Islamic Ideology which is the basis for the creation of Pakistan: That I will not allow my personal interest to influence my official conduct or my official decisions: That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan: And that, in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill‑will. (May Allah Almighty help and guide me (A'meen)!" Chapter 1 of Part V of the Constitution of India covered the cases of President and Vice‑President of India. Article 60 of the aforesaid Constitution provides for an oath or affirmation by the President, whereas Article 69 prescribed a separate oath or affirmation by the Vice‑President of the Union of India. Article 60 runs as:‑‑ "

60. Oath or affirmation by the President.‑‑‑ Every President and every person acting as President or discharging the functions of the President shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of India or, in his absence, the senior most Judge of the Supreme Court available, an oath or affirmation in the following form, that is to say‑‑‑ "I, A.B., do swear in the name of God/solemnly affirm that I will faithfully execute the office of President (or discharge the functions of the President) of India and will to the best of my ability, preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well‑being of the people of India." The oath or affirmation prescribed by the Constitution of India for the Vice‑President reads as: "I, A.&, do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will faithfully discharge the duty upon which I am about to enter." Article 65 of the Indian Constitution authorized the Vice‑President to act as President or to discharge his functions during casual vacancy in the office, or during absence of the President and while acting or performing the functions of the President, he has all the powers and immunities of the President. A close reading of Article 60 of the Constitution of India shows that the Vice‑President when called upon to act or perform the functions of the President in the event of the occurrence of the vacancy is required to take a fresh oath prescribed for the office of President in Article 60 of the Constitution of India. Contrary to it, our Constitution did not contemplate a separate fresh oath of office meant for the office of President by the Chairman of Senate or Speaker of the National Assembly, as the case may be, on being called upon to act as or perform the functions of the President on account of occurrence of a vacancy in the office of President. Instead, it already bound them in the prescribed oath that when they were called upon to act or perform the functions of the President, they shall discharge their duties and perform functions in the manner indicated in their respective oaths already taken by them. In my view, the Constitution did not envisage even a momentary vacuum of interregnum in the office of President for a body politic was incomplete without its Head. The moment vacancy in the office of President occurred, the Chairman of Senate and in his absence, the Speaker of the National Assembly took over to act or perform his functions depending upon the nature of the vacancy caused in the office. Oaths they had already taken, upon being inducted in their respective offices. It was for the Constitution‑makers in their wisdom to prescribe the forms of oaths for respective office‑holders under the Constitution and it was not for the Court to question their wisdom or find fault with their production. The Court is required to harmonize the various provisions of the Constitution for avoiding a possible conflict in them and produce synthesized results. The definition of President in Article 260 includes "a person for the time being acting as, or performing the functions of, the President of Pakistan". Therefore, the Acting President has all the powers of the elected President whose vacancy he was filling in. In the above context, I have failed to discover any flaw in the acting of Chairman of Senate as President and perfoming his functions as such in that capacity on the basis of the oath already taken by and administered to him as Chairman of Senate. In the past also, separate oath prescribed for the office of President‑elect was not insisted upon for the Chairman of Senate acting as and performing the functions of President. For the grounds aforesaid, writ petition is without force and is dismissed in limine. AA./Z‑88/L Petition dismissed.