P L D 1969 Lahore 602 (PLP)

4. It may now be convenient to refer to the relevant constitutional provisions and section 8(2) of the Political Parties Act, 1962. Article 103(2) contains the grounds of disqualification from being elected as and from being a member of an Assembly. The ground relied upon is contained in sub‑clause (e) which reads:‑ (e) if he is otherwise disqualified from being a member of that Assembly by this Constitution or by or under any law." The relevant law in this case is contained in section 8(2) of the Political Parties Act of 1962. It reads :‑ "8. (2) If a person, having been elected to the National or a Provincial Assembly as a candidate or nominee of a political party, withdraws himself, from it he shall, from the date of such withdrawal be disqualified from being a member of the Assembly for the unexpired period of his term as such member unless he has been re‑elected at a bye‑election caused by his disqualification." We then came to Article 104(2) which reads:‑ "104(2)‑If any question arises whether a member of an Assembly has, after his election, become disqualified from being a member of the Assembly, the Speaker of the Assembly shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, the member shall cease to be a member."

5. The first contention of Mr. M. B. Zaman for the petitioner was that Article 104(2) contemplates that the question whether a member of an Assembly has become disqualified can only be raised on the floor of the House and not by a communication by member or a stranger to the Speaker outside the House. It was urged that the Speaker is the custodian of the rights and privileges of the members and the reason why he was chosen by the Constitution maker of the person who was to make a reference to the Chief Election Commissioner was that when such a question is raised on the floor of the House, the pros and cons of it would be discussed in the House to enable the Speaker to form an opinion whether a substantial question did or did not arise which was to be referred to the Chief Election Commissioner. Such a question, the argument proceeded, could be raised only in the form provided by the rules of the Assembly, and it was not intended that upon any information received by the Speaker privately in respect of the question he would automatically make a reference. It was pointed out that if that had been the intention it was not necessary to use the language "if any question arises" which has a technical meaning in parliamentary practice and it would have been provided that the Speaker, upon receiving information with regard to the disqualification of a member, shall make a reference to the Chief Election Commissioner. It was urged that the undesirability of such a procedure was recognised by the framers of the Constitution, because in that case any person could even maliciously lodge an information with the Speaker against a member without there being any truth or substance in it and the member would have to face an inquiry before the Chief Election Commissioner, because the Speaker would have to make a reference upon receipt of such information. Reference was made to May's Parliamentary Practice, 17th edition, Chap. VIII. The relevant portion upon which reliance was placed reads :‑ "The essential stages in obtaining a decision of the House are (1) the moving of a motion; (2) the proposing of a question by the Chair ; and (3) the putting of the question and collection of the voices by the Chair. These three stages are connected together by the question, which must, according to long‑established practice, repeat the terms of the motion, and which must be so framed as‑to be capable of expressing a decision of the House." But it is obvious that this procedure is to be followed when the decision of the House is to be obtained on a certain question. However, the term "if any question arises" which occurs in' Article 104(2) cannot be interpreted in the light of this practice or historical background when the decision of the question is, not to be obtained from the House but from the Chief Election Commissioner, to whom the question is to be referred by the Speaker. From the mere fact that the Speaker was chosen to be the person who was to make the reference, it does not follow that the Parliamentary Practice with reference to questions upon which a debate takes place and the decision of the House is ascertained was to be introduced for the purposes of making a reference under Article 104(2). It is no doubt true that the question whether a member has become disqualified can be raised by any other member in the Assembly, but from that it does not follow that that question can be raised only on the floor of the House or for that matter by a member only. The term "if any question arises" is not used only with reference to parliamentary practice. It is a familiar legislative expression and has been often used in various statutes. Therefore, merely because that term has been used in a case where action is to be taken by the Speaker, it cannot be held that the only manner in which it can be done is by motion on the floor of the House. particularly when the decision of the question is to be given by an outside agency, namely the Chief Election Commissioner. It may be useful to refer to a judgment of the Supreme Court of India Brundaban Nayak v. The Election Commission of India (A I R 1965 S C 1892). The same point was urged before the Supreme Court with reference to Article 192 of the Indian Constitution which is similar to Article 104(2) of our Constitution, except that the Speaker is not named as the person who was to make a reference which was to be made to the Governor who was to obtain the opinion of the Election Commission and act according to such opinion. The contention of Mr. Setalvad before the Indian Supreme Court was on the same lines as has been urged before us. It was pointed out that Article 192 occurred in Chapter III of Part VI, which dealt with the State Legislature and such questions as to whether a bill introduced in the Legislature of State was a money bill or not, upon which the decision of the Speaker of the Assembly was to be final under Article 199(3). It was, therefore, urged that just as the question contemplated by Article 199(3) could be raised only on the floor of the House so could the question about subsequent disqualification of a member which was dealt with by Article

192. The contention was repelled and it was pointed out that the first clause of Article 192 did not permit of any limitation such as was suggested. What the said clause required was that a question should arise ; how it arises, by whom it is raised, in what circumstances it is raised, were not relevant for the purposes of the application' of the said clause. However, it was urged by Mr. Zaman that the position is deferent here, because in Article 104(2), the Speaker is the person before whom the question must arise and who is to make the reference. We have already pointed out that from that fact alone and in the absence of any limitation in Article 104(2) with regard to the manner in which the question is to arise, it cannot be held that it can only arise as urged by Mr. Zaman. We, therefore, repel the first contention.

6. It was next urged that in any case when the matter is brought to the notice of the Speaker without being raised in the House, he has to apply his mind to it in order to reach a decision that a substantial question has arisen. In this case, it was contended that this had not been done. Reliance was placed on the sentence in the reference of 3rd of July by the Speaker, which reads :‑ "I think the question does arise whether Mr. Mustafa Khar has, after his election, become disqualified from, being a member." Reference was then made to the report which was submitted to the Court by the Speaker, in which it was stated :‑ "The Constitution does not require the Speaker to come to the conclusion that a question has not arisen, because in order to come to such a conclusion he will have to decide the main issue that a member has not, after his election, become disqualified from continuing as a member, which the Speaker is not competent to do as it is in the domain of the Chief Election Commissioner." The argument was that the Speaker had not applied his mind to the matter whether a question had in fact arisen or not and had thought that his function merely was to act as a post office, once he had received the communication from the Leader of the House. But in this report the Speaker was mainly concerned with the question whether he was required to hold a preliminary inquiry and to hear the petitioner before making the reference to the Chief Election Commissioner. The report and the reference has to be read as a whole and from the facts stated in the reference itself it would not be a fair inference to hold that the Speaker had not applied his mind, even though the language used may not be apt. In the reference it is stated by the Speaker that he had gone through the resolution and the contents of the notice that was served on the petitioner and in view of the position taken by the Leader of the House as well as the fact that the resolution had been passed after hearing the petitioner by the Parliamentary Party he thought that the question did arise. There was, therefore, an application of the mind of the Speaker though he was anxious to maintain his position in the report that his function was limited and the decision lay with the Chief Election Commissioner. We are ourselves of the opinion that when a matter is brought to the notice of the Speaker with reference to the disqualifications of a member he would have to apply his mind to the question whether a question such as contemplated in Article 104(2) had arisen or not. For instance, if the information upon which he was required to make a reference was un-relatable to any of the grounds contained in sub‑clauses (a) to (e) of clause (2) of Article 103 of the Constitution, he would be entitled to refuse to make a reference. However, his function under Article 104(2) is clearly of a very limited character. That had to be so, because in so far as the decision with regard to the disqualification lay with the Chief Election Commissioner, he (Speaker) might be accused of bad faith if he refused to make a reference and thus stifle an inquiry by the Chief Election Commissioner, which is a matter which lies within his jurisdiction and not that of the Speaker. It would be of interest to refer to the well‑known case of Fazlul Quader Chowdhury, in which no reference had been made by the Speaker with regard to the question whether Mr. Chowdhury had ceased to be member of the Assembly and the matter was brought to the High Court directly by certain members. Of course, it was held in that case that having regard to the difference in the language of Article 104(1) and 104(2) a reference was not necessary in a case covered by clause (1). It would be, however, useful to refer to some of the observations of the Supreme Court in that case which was taken in appeal from the judgment of the High Court. In that case it was urged that the petition under Article 98 was not competent because there was another adequate remedy, viz., the making of a reference under Article 104(2) of the Constitution. Hamoodur Rahman, J. while dealing with that argument and having noted the fact that the High Court had held that clause (2) of Article 104 was not attracted in this case went on to add :‑ But I would go further and say that even if it was attracted, it would not be such an adequate remedy as to exclude the operation of Article

98. Article 98 gives the right to any citizen to approach the High Court, whereas under Article 104(2) the Chief Election Commissioner is to be set into motion by a reference from the Speaker, who may either act suo moto or upon a motion in the Hou3e by a member. In the present case, there is no dispute that the Speaker did not make any reference. Indeed. Mr. Brohi has drawn our attention to the official report of the National Assembly Debates of the 19th June 1962, to show that an effort was made on that date by some members to move a motion for adjournment to discuss the President's Order No. 34 of 1962, under Article 224(3) enabling members of the National Assembly and Provincial Assemblies to be appointed as members of the Council of Ministers without loss of their seats in the Assemblies concerned, but on an objection from the then Law Minister the motion was disallowed". (P L D 1963 S C 486 at p. 541). It would, therefore, appear that his Lordship was clearly o the opinion that the question need not necessarily be raised b motion in the House. The Speaker could even act suo moto. When he does so he will no doubt apply his mind to the very limited point whether a question had or had not arisen. In fact, in a proper case, lie might be directed by the superior Courts to male a reference where lie had refused to do so if a petition was for that relief brought.

7. The last contention of Mr. Zaman was that before making the reference the Speaker was, under the principles of natural justice, required to afford opportunity to the petitioner to represent his side of the case. It was contended that if this opportunity had been afforded the petitioner would have been able to produce before the Speaker his reply to the charges made against him and which were contained in the letter of the Secretary General of the Party of 28th June. It was pointed out that this reply was deliberately not sent by the Leader of the House to the Speaker when he sent his communication to him along with a copy of the resolution of the Party held on 2nd July 1968. It was stated that the petitioner would also have been able to produce before him his press statement made on the 5th of July declaring that he was still a member of the Pakistan Muslim League and the declaration of the Secretary of the Peoples Party which was published on the 7th of July to the effect that the petitioner had not joined the Peoples Party. It was further contended that the petitioner would have been able to show to the speaker that even upon the facts alleged it could not be held that he had withdrawn from the Party within the meaning of the term as used in the Political Parties Act. It is no doubt true that these and many other questions would arise before it is found that the petitioner has incurred the disqualification. Many disputed questions of fact would have to be resolved upon such evidence as may be led by the parties. But the question is whether all this was necessary or required to be done before the Speaker who was bound under the Constitution to make a reference to the Chief Election Commissioner when a question arose as to The disqualification of a member: The answer that we have reached upon that question is in the negative. Not only that the Speaker was acting in a purely administrative capacity while making the reference under Article 104(2) of the Constitution, but what is more important is that the Speaker had no power to adjudicate upon the matters in controversy. It was conceded by them learned Attorney‑General, and rightly so, that there was controversy, but what he urged was that this controversy has to go before the Chief Election Commissioner who has the jurisdiction to decide upon it. That, in our opinion, is the correct position. The inquiry which has to be held and in, which all those questions which have been indicated above will arise, must necessarily before the person who has the power to adjudicate upon it, unless it could be found from the words of the statute that a preliminary inquiry was essential before the Speaker made a reference to the Chief Election Commissioner. There are no such words in Article 104(2) of the Constitution and in the absence of such words it would not be right to assume its existence by interpretation, particularly when we are dealing with a constitutional provision. It is true that the principle of natural justice is to be assumed whenever the question of determination of the right of a person arises unless the existence, of such a principle is excluded by the statute expressly or by necessary intendments. But the Speaker ‑was not determining any question of right of the petitioner and by statute that authority was given to the person to whom he was merely making a reference.

8. Our attention was drawn to several judgments of the West Pakistan High Court in relation to the West Pakistan Criminal Law Amendment Act. Under section 3 of that Act, the Commissioner refers a case to a Tribunal under the Ordinance if he is of the opinion that it is inexpedient in the interest of justice that the case should be tried by the ordinary Courts. The question which arose was whether the Commissioner before making such a reference has to hear the accused person. More than one Division Bench has held that such a hearing was not necessary. A Full Bench of three Judges, however, held that it was necessary, but when upon certain observations made by the Supreme Court in a case a larger Bench of five Judges was constituted, it was held that the Commissioner was required to hear the accused. But this conclusion was reached not with reference to section 3 of the Ordinance but section 25 which provided that the accused is entitled to be represented through a counsel at all stages of the proceedings. That judgment also has been questioned by the Government before the Supreme Court and we were informed by the Attorney‑General that the operation of that judgment has been stayed. But in any case, there would be a distinction between these cases and the case with which we are dealing, because in that case the Commissioner has to form an opinion whether having regard to the facts of the case it should not be tried by the ordinary Courts, by which an accused person would normally be tried, but by a Tribunal constituted tinder the Ordinance. That is not the function of the Speaker under Article 104(2). He is required to make a reference to the Chief Election Commissioner as soon as a question arises as to the disqualification of a member of the assembly. The learned Attorney‑General read out to us certain passages from the judgment of Kaikaus, J., in the case of Fazlul Quader Chowdhury v. Muhammad Abdul Haque, to which reference has already been made. These passages appear at pages 527 and 528 of the report. We may respectfully reproduce portions from these passages. This is what the learned hide observed:‑ "It is difficult to hold that the right of a person to be a member of the Assembly which is obviously a very important right would depend wholly and entirely on a summary decision given by the Election Commissioner, a person who may not be conversant with law or procedure and who may have no experience at all of determination of facts." Another portion which appears at page 528 reads :‑ "The consideration stated above lead me to the conclusion that the jurisdiction of the Election Commissioner was created in order to secure in a summary fashion the decision of the question whether a person has the right to vote in the Assembly and that this summary decision was always subject to the existing jurisdiction of the Courts." The learned Attorney‑General read these passages to indicate that a member was not only entitled to raise all relevant questions before the Chief Election Commissioner but, if necessary, having regard to the above view, a further challenge might be raised in a Court of general jurisdiction and therefore, it was entirely unnecessary that the Speaker should either issue notice to the member or hear him before making the reference, This contention, in our opinion, is clearly right.

9. The other consideration which also goes against the contention that the Speaker in making the reference without hearing the petitioner has violated the principle of natural justice is that whenever any question in relation to a right is to be determined, the person affected may not be heard at every stage. The question as to whether the person affected need not have been heard at a certain stage in a case must depend upon the facts of the case and the provisions of law governing the matter. But, in view of what has been said above, it must be held that in this case, assuming that it was necessary for the Speaker to hear the petitioner, the absence of such hearing would not vitiate the determination which may eventually be reached, the reasons primarily being that the Speaker himself was not called upon to adjudicate upon the controversy. We, therefore, repel the third contention as well.

10. Having said all that we have, we would like to add that our conclusions were mainly influenced by the fact that a full and effective hearing will take place before the Chief Election Commissioner where the petitioner will have adequate opportunity of meeting the allegations made before him and establishing his own case that he has not withdrawn from the party. Several important questions will arise in this case which will be relevant to the point whether the petitioner has incurred the disqualifica tion. Section 8(2) of the Political Parties Act, 1962 contains a salutary principle which is recognised as a well‑established convention wherever a democratic system of Government is followed and where representatives of the people are elected as candidates of a political party. The need for making a legislative provision here may have been felt in view of the experience of the past when frequent crossing of the floor of the house by the members took place which not only violated a well‑established democratic convention but also led to the un-stability of the Government. The law now provides that such a conduct will lead to the disqualification of the member. But to deprive a person of his seat in the Assembly on this ground it would have to be conclusively found that he has withdrawn from the party. It will be for consideration whether the bob‑nobbing of a member with another party or his acts of indiscipline from the point of view of the party amounts to his withdrawal from the party notwithstanding the fact that he asserts that he continues to be a member of that party and has neither joined any other party nor has voted against the party in the House and continues to sit on the party benches. We have no doubt that these and such other questions which will arise before the Chief Election Commissioner will be determined by him after providing adequate opportunity to the petitioner to be heard. With these observations we dismiss this petition, but in the circumstances make no order as to costs. Petition dismissed.