1980 PLP 1 (CLC)

Punjab Ordinance VI of 1979 "Section 4.-The provisions of this Ordinance shall take effect not with standing anything inconsistent therewith contained in any other law. Section 21--A person shall be disqualified to be a candidate or a member of a local council- (a) if he has ceased to be citizen of Pakistan; (b) if he is an undischarged insolvent; (c) if he is of unsound mind and has been so declared by a competent Court; (d) if he has been on conviction for an offence in imprisonment for a term of not less than six months, unless three years have elapsed from the date of expiration of the period of the sentence; (e) if he is a salaried. official of Federal or Provincial Government or of a Public or Statutory Corporation, a local council or other local authority; (I) if he for the time being, is disqualified for membership of the Parlia ment or a Provincial Assembly under any law for the time being in force; (g) if he has been dismissed from Government service or the service of a local council on charges of corruption and a period of three years has not elapsed from the date of such dismissal; and (h) if he is under contract for work to be done or goods to be supplied to the local council concerned or has otherwise any pecuniary interest in its affairs." President's (Post Proclamation) Order No. S of 1977 Article 10(1) . (2) A person shall be disqualified from being .elected or chosen as, and from being, a member, of parliament.- (a) . . . . . . . . (b) . . . . . if . . (1) . . . . . . . . (2) . . . . . . . . (3) . . . . . . . . (4) he has been in the service of Pakistan or any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service. (5) . . . . . . . .

10. It was argued on behalf of the petitioners that clause (f) of sec tion 21, disqualifies a person from being a candidate for election to a local council, if he is for the time being disqualified for membership of the Parlia ment or a Provincial .Assembly under any law for the time being in force. It was pointed out that the laws which disqualified persons from -such membership, included the provisions of Article 63 of the Constitution of Pakistan, section 99 of the Representation of the Peoples Act No. LXXXV of 1976, section 5 of Parliament and Provincial Assemblies (Disqualification for Membership) Act V of 1977, Article 10 of The Houses of Parliament and Provincial Assemblies (Elections) Order 5 of 1977 and Para. 6(3) of C. M. L. O. No. 47, and contended that any person who stood disqualified by virtue of the afore-referred laws, would in terms of clause (f) of sec tion 21 also stand disqualified froth being a candidate or, a member of 'a local council.

11. Mr. Talib Hussain Rizvi argued that by virtue of section 4 of the Ordinance, its provisions were to have effect notwithstanding anything inconsistent therewith contained in any other law, that a reference to Article 1(2) of the Order shows that it is to apply only in respect of the forthcoming elections to the Houses of Parliament and the Provincial Assemblies and as such it is clear that the disqualification contained in its tenth Article will not apply to candidates for elections to local councils, that section 21 of the Ordinance was exhaustive of the disqualifications attaching to a candidate for election to a local council, and that clause (f) of section 21 of the Ordinance only disqualifies a person against whom a specific order of disqualifica tion had been made. He, however, conceded that if Article 10 of the Order was held to be applicable to candidates for election to local bodies then by virtue of clause (f) of section 21 of the Ordinance, the contesting respondents would stand disqualified, but he argued that for the reasons aforenoted it was not applicable.

12. In support of his arguments Mr. Talib Hussain Rizvi compared and contrasted the provisions of section 21 of the Ordinance and Article i0 of the Order, to contend that not only were parts thereof at variance with each other, but many disqualifications contained in Article 10 of the Order were not even mentioned as such in section 21 of the Ordinance. He pointed out to clause (d) of section 21 of the Ordinance, which disqualifies a person if he has been on conviction for an offence involving moral turpitude, sentenced to imprisonment for a term of not less than six months, unless three years have elapsed from the date of expiration of the period of the sentence, and compared it to Article 10(2)(b)(1) of the Order, where the minimum sentence prescribed is two years and the period of disqualification is five years. Similarly, he drew .attention to clause (e) of section 21 of the Ordi nance, which disqualifies a person if he is a salaried official of the Federal or Provincial Government, etc. and compared it with Article 10(2) (b)(9) of the Order by the proviso of which, certain such persons have been allowed to contest elections. Learned counsel further drew attention to clause (g) of section 21 of the Ordinance which disqualifies a person who has been dismissed from Government service on charges of corruption, unless/period of three years had elapsed from the date of such dismissal, and compared it with Article 10(2)(b)(2) of the Order in which dismissal is to be on the ground of misconduct and the period of disqualification is five years. He further pointed out, that there were no provisions in section 21 of the Ordinance similar to those contained in sub-clauses (3), (5), (6) and (7) of clause (b) of subsection (2) of Article 10 of the Order. It was contended that the fact, that the Legislature had in section 21 of the Ordinance, specified disqualifications different from, or in addition to, or in derogation of those specified in Article 10 of the Order, showed that the disqualifications contained in Article 10 of the Order, were not to be made applicable to candidates for election to the local councils under the Ordinance. Learned counsel argued that a restricted interpretation has to be placed on clause (f) of section 21 of ' the Ordinance, and the words, "for the time being is disqualified", can only refer to a case where a specific order of disqualification has been made under any law for the time being in force. He submitted that clause (f) of section 21 of the Ordinance would not disqualify a person from seeking election to a-local council, unless there is, a specific order to this effect, made under any law for the time being in force.

13. Mr. Muhammad Arif, learned Advocate-General, supported the conclusions reached by the Election Authority in its impugned order of 21st of September, 1979, and contended that the Legislature should be deemed to be aware of . the entire existing laws. Comparing the provisions of section 21 of the Ordinance with those of Article 10 of the Order, he submitted that there were material differences between these two provisions. He argued that the Legislature intended section 21 of the Ordinance to be exhaustive of the disqualifications of a candidate or a member of local council, and further that in its terms clause (f ) of section 21 of the Ordinance only disqualifies those persons, against whom a specific order of disqualification had been made by any competent Court, Authority or Tribunal under any law for the time being in force. He submitted that till such time as an actual order of disqualification is not made, clause (f) of section 21 would not be attracted. Elaborating upon the disqualifications contained in clauses (b), (c), (d) and (g) of section 21 of the Ordinance, he argued that they would not be attracted unless there was a specific order of a competent Court or authority, and submitted that similarly clause (f) would also not be applicable, unless there was a specific order of disqualification. He drew attention to clauses (e) and (g) of section 21 of the Ordinance to argue that whereas the former disqualifies a salaried official of the Federal Government etc. the latter disqualifies those who had been dismissed from Government service, and concluded that those who had beer' removed front service or bad under the ordinance, whereas retired from service would not be disqualified they stood disqualified under Article 10(2)(b)(4). This showed, he argued, that the provisions of section 21 of the Ordinance fully occupied the field and there was no scope for the applicability . of Article 10 of the Order, or for the matter of that the disqualification provisions of any other law for the time being in force..

14. In so far as the first contention is concerned it is not in dispute that by virtue of its fourth section, the Ordinance is to take effect not withstanding anything inconsistent there with contained in any other law. Further it cannot also be controverted, that by virtue of the constitutional and the Continuance in Force) Order of 1977, Provincial laws of the like of Laws Ordinance VI of 1979 cannot supersede Martial Law Regulation, Martial Law Orders, President's. Orders and federal Act and Ordinance within the legislative competence of the .Federal Legislature. However, nothing really this statement of the law It is obvious that tire provisions of turns on this statement of the Ordinance will be attracted only if inconsistency is section demonstrated between the Ordinance and any Maer law. For the purpose of this case the respondent succeed only if they can establish, a real and apparent inconsistency, between the provisions of section 21 of the ordinance and Article 10(2)(b)(4) of the Order or any other disqualifying law applicable. The contentions of the learned counsel for the respondent in relation to section 4 proceed on the assumption that section 21 of the ordinance conflicts with Article 10 of the order which assumption for the reason recorded in later part of the judgment id nor correct.

15. The second contention of the respondents is that by virtue of clause (2) of its Article 1, the Order is applicable only to the forthcoming elections to the Houses of Parliament and the Provincial Assemblies. Accordingly it is argued that the Order including its Article 10 will not apply to elections to the local councils. Were this line of reasoning to be accepted, it would mean that the provisions of the Order cannot be incorporated by reference, in any other law, and this would lead to an unprecedented situation. Laws can with reference to the period of their operation, be differently classified. Certain laws are enacted for a specific purpose and exhaust themselves when the purpose is achieved, as for instance, President's (Post Proclamation) Order 5 of 1977. A second category of laws are for a temporary period, as for instance, Ordinances issued by the President or the Governors. A third category comprises of laws which continue in force till repealed by the appropriate legislature. It is not unusual to adopt the process of legislation by reference and this I accepted as a valid manner of writing laws. For purposes of legislation by reference I am not aware of any distinc tion being made between the three categories of laws enumerated above. permissible to bring into a subsequent law by the process of reference, the provisions of any of the afore-referred three categories of earlier laws and provision the earlier 1st becomes an internal part of the subsequent once this is done, law. It has been held in a Full Bench Judgment of this Court in Ghulam Mustafa Khar v. Election Commissioner (P L D 1977 Lah. 1437), that once the provisions of an earlier law are incorporated in a later law there is no occasion to refer to the former law at all. As observed in Woods Estate ((1886) 31 Ch. B 607) if a subsequent Act brings into itself h,, reference, some of the clauses of the former Act, the legal effect of that is to write those sections into the new Act as if they have been actually written in it by pen or printed. For these I regret my inability to agree with the contention that merely by virtue of Article 1(2) of the Order its provisions cannot be incorporated in any other law, so it is not applicable to the elections being held to the local councils.

16. In support of the contention to the effect that section 21 of the Ordinance is exhaustive, and that its clause (f ) only disqualifies a candidate against whom there exists a specific order to this effect, the Court was invited to examine the difference between the provisions of section 21 of the Ordinance and Article 10 of the Order. It is correct that the periods of disqualification prescribed by clauses (d) and (g) of section 21 are shorter than those laid down in clause b(l) and b(2) of subsection (2) of Article 10 of the Order. The reason for this is obvious, because the term of a local council is four years according to section 26 of the Ordinance, whereas, that of the Parliament and Assemblies is five years. As such not much follows from this. However, where a disqualification contained in section 21 of the Ordinance expressly conflicts with that contained is any other law made applicable by virtue of clause (f) afore-referred, that contained in the Ordinance will prevail by virtue of its fourth section, as for instance in the case of the conflict noted between clauses (d) and (g) of section 21 and clause (1) and (2) of Article 10(b)(2) of the Order.

17. As already observed, legislation by reference to an earlier law is one, of the permissible modes of enacting statutes, and this appears to be the very) object of clause (f) of section 21 of the Ordinance. Subject to the provision of section 21 of Ordinance, it has incorporated therein, all the disqualification attached to a person seeking to be a member of the Parliament or Provincial Assembly under any law for the time being in force, and this would include the disqualifications contained in all the laws referred to in para. 10 above Read with section 20 of the Ordinance, clause (f) of section 21 implies that all person is disqualified to be a candidate or a member of a local council if he is on the last date of filing of nomination papers, disqualified from membership` of the Parliament or the Provincial Assembly, under any law for the time being in force. I do not see how it would be permissible to exclude from the meaning of the term "law for the time being in force", the provisions of Article 63 of the Constitution, or Act LXXXV of 1976 or Act V of 1977 or President's (Post Proclamation) Order 5 of 1977 or for the matter of that, C. M. L. 0. 47 and M. L, R.

20. All of these are existing laws, for the time being in force in Pakistan, and this issue is settled beyond doubt by the celebrated judgment of the Supreme Court in Nusrat Mum's case (P L D 1977 S C 657).

18. I am also unable to agree that clause (f) of section 21 of the Ordinance, would be applicable only if there is a specific order disqualifying a person from the membership of the Parliament or the Provincial Assembly. The argument proceeds on the assumption that the term "disqualified" 48 used in clause (f) refers only to a situation where an order of disqualification has actually been made. The term "disqualified" unless the context other" is requires, is to be given its ordinary meaning and refers not only to disqualification by means of a specific order, but also to disqualification by operation o law. A person can be disqualified either by operation of law, as is the case in respect of those former civil servant hit by the provisions of M. L R 20 or upon the happening of an event, as is the case with disqualification after reference is submitted under para. 8 of C. M. L. 0. 47, or on the basis of are order. Further the disqualification may be permanent, as for instance, when a person abandons citizenship, or it may be purely temporary, as it is under para. 8 of M. L. O. 47 during the pendency of a Reference before a Disqualification Tribunal, or it may be for a specified duration. In the laws which disqualify a person from membership of Assemblies to which reference has earlier been made in para. 10 above, the word, "disqualified" as such is used. In the various situations covered by those provisions, those laws; do not disqualify only if an actual order for such purpose has been made. The disqualification in these cases follows even on the happening of an event. This argument as such does not advance the respondents case.

19. The interpretation sought to be placed on the word "disqualified"' by the learned counsel for the respondents in addition to being far-fetched, if accepted would involve the violation of at least two laws and I would refer to M. L. R. 20 and C. M. L. O.

47. Under M. L. R. 20 a person who has been in the service of Pakistan is prohibited from directly or indirectly, engaging himself in any kind of political activity, unless a period of two years has elapsed since he ceased to be in such service. No order is necessary for this disqualification to be effective, and in fact it comes into operation immediately after a person has ceased to be in Government service, and continues for two years. If the interpretation suggested by the respondents were to be adopted, it would mean that the Returning Officer, under the Ordinance would be bound to accept the nomination paper of a person who was in service of Pakistan and in whose case two years have not elapsed, and such a candidate would be committing an offence under M. L. R. 20 and the. Returning Officer would be abetting the same. Further para 8 of C. M. L. O. 47 provides, that persons against whom proceedings have been] initiated before a Disqualification Tribunal cannot participate in any manner whatsoever, in any political activity until such time as he is found not guilty by the Disqualification Tribunal. The disqualification follows automatically upon the reference being made and no order is required by the. law to be made for this interim disqualification. In such a case also the acceptance of a nomination paper of a person against whom a reference is pending would be contrary to the provisions of C. M. L. O. 47 and would in fact result in the prosecution of such candidate.

20. A reference to clauses (a) and (h) of section 21 of the Ordinance will show, that disqualification would attach thereunder, even though there is no specific order to the effect that a person has ceased to be a citizen of Pakistan, or that he is under contract or is interested in the affairs of a local council, respectively. On the contrary where the Legislature intended a disqualification only to attach as a consequence of a specific order of a Court of a competent authority to this effect, it has been in so many words so stipulated, and for this reference can lie made to clauses (c), (d) and (g) of section 21, under which the disqualification attaches only after the specified order has been made. In fact clause (I) does not provide that a disqualifica tion will attach only after a specific order has been passed and this shows that a person shall stand disqualified under clause (f) even without an existing specific order of disqualification The language of clause (f ) afore-, referred is clear and unambiguous.

21. Accordingly I am of the opinion that a person will be disqualified from being a candidate of a member of a local council, if he is on the date of the filing of the nomination paper, disqualified for membership of the Parliament or Provincial Assembly, undar any law for the time being in force and this includes President (Post Proclamation) Order 5 of 1977. Admittedly the contesting respondents were by virtue of Article 10(2)(b)(4) aforenoted disqualified from being members of the Parliament or the Provincial Assembly on 12-9-1979, which was the last date for filing of the nomination papers for election to local councils. They as such stand disqualified from being candidates, for election to the local councils.

22. These petitions were earlier accepted in term of the short order of 24th of September, 1979. It is declared that the acceptance of the nomination papers of (i) Muhammad Sarfraz Khan, respondent No. 1 in W. P. 5019/79, by the respondent No. 2 by his impugned order dated 16-9-79, (ii) Umar Draz Cheema respondent No. 1 in W. P. 5093/79 by respondent No. 2 by his impugned order dated 14-9-79 and by respondent No. 3 by its impugned order dated 21-9-1979, and (iii) Muhammad Hussain respondent No. .3 in W. P. 5024/79 by respondent No. 1 by its impugned order dated 17-9-79, is without lawful authority and of no local effect. In the circumstances of the case, there will be no order as to costs in all the petitions. S. A. H. Petitions accepted.