P L D 1966 Dacca 277 (PLP)

MURSHED, C. J.‑This is a reference, under clause 36 of the Letters Patent, from a Division Bench, consisting of two learned Judges of this Court, which, on hearing the present Rule nisi, was equally divided on its opinion. As the point raised in this application is of vital importance from a constitutional point of view, I have associated with me two of my learned and senior colleagues in hearing this case, and I am happy to feel that they concur in the view that I have taken in pronouncing this judgment. The application is by one Kazi Abdul Kader, who was, till the relevant time, Minister‑in‑charge of Food and Agriculture, Government of East Pakistan (He ceased to be such Minister when this application was being heard by us). The applicant was named by the Election Tribunal, East Pakistan, in accordance with President's Order No. 13 of 1962, upon a finding to the effect that he was guilty under Articles 61 and 62 of the said Order. The facts of the present case are very simple. The petitioner was elected from a constituency in the District of Rangpur in the first general election held under the present Constitution. On his appointment as a Minister of the Provincial Government his seat in the Provincial Legislature became vacant. In pursuance thereof a bye‑election was held in respect of the said constituency on the 20th of October 1963, in which respondent Nos. 3 to 5, namely, Mr. Mosharraf Hossain Miah alias Lebu Miah, Mr. Rustam Ali Miah, and Majibor Rahman Mia, respectively, contested. Respondent No. 4, Mr. Rustam Ali Miah, was declared elected. Thereafter, respondent No. 3, Mr. Mosharraf Hossain Miah, filed an election petition which was heard by the aforesaid Tribunal (respondent No. 1), challenging the said election on various allegations amongst which, inter alia, were charges of corrupt and illegal practices. At the hearing of the aforesaid election case, evidence was adduced before the Tribunal, upon which a notice was served on the petitioner on the 27th of November 1964, under Article 26, clause (2), proviso (a), of President's Order No. 13 of 1962, to show cause why he should not be named in the judgment for having committed corrupt and illegal practices enumerated in the said notice. This date is important because it marks the point of time on which the proceedings against the petitioner were set in motion under the aforesaid President's Order No. 13 of 1962. Petitioner showed cause denying the charges that were made against him. He also impeached the maintainability of the notice which was served upon him. Evidence was further led against him on the aforesaid allegations and witnesses were cross‑examined on his behalf. The Election Tribunal came to a finding adverse to the petitioner under the above‑mentioned Articles 61 and 62 of the said Order and named him in the judgment that was pronounced by it, on the 30th of April 1965. It is also equally important to remember the aforesaid date. Being aggrieved by the aforesaid judgment and order passed by respondent No. 1 (Election Tribunal, Last Pakistan), the petitioner moved this Court under Article 98 of the Constitution and obtained the present Rule nisi, calling upon the respondents to show cause why the order passed by respondent No. 1 (The Election Tribunal, East Pakistan), in so far as it related to the petitioner, as stated above, should not be declared to be void, without lawful authority and of no legal effect. The Rule nisi, as I have said, was heard by a Division Bench of two learned Judges of this Court, who were equally divided in their opinion. Hence this reference. I may mention, at the outset, that no argument was addressed to us on the merits of the case relating to findings of fact against the petitioner. Mr. Brohi had also refrained from canvassing such questions of facts before the Division Bench which had initially heard the present Rule nisi because it was felt that, although some findings could be impeached, it would have been difficult to assail all such finding. We have had the advantage of hearing full arguments from learned Advocates who have appeared for the respective parties before us. Upon a perusal of the judgments pronounced by the two learned Judges, who constituted the aforesaid Division Bench, I am of opinion that, on the reasonings accepted by Sattar, J. and on a reconsideration of Article 225 (1), the decision should have been in conformity with the opinion expressed by his Brother Judge and that it should have been in favour of the petitioner. In fact, this was exactly the argument with which Mr. Brohi, appearing for the petitioner, had prefaced his address to us. I find myself in such complete agreement with the judgment pronounced by Salahuddin Ahmed, J., that the view expressed in this judgment would only amount to an elucidation thereof. Mr. A. K. Brohi, who has appeared on behalf of the petitioner, has advanced before us, more elaborately, with his usual lucidity of expression, the arguments which he had addressed to the said Division Bench. The main contention of Mr. Brohi is that the impugned order, which was passed under President's Order No. 13 of 1962, published on 29th April 1962, as amended, much later, by President's Order No. 35 of 1962, which came into effect on the 18th of July 1962, had ceased to have any legal effect on the 21st of November 1964, when the first Electoral College under Article 158 of the Constitution was constituted. He has argued that the aforesaid Orders Nos. 13 and 35 of 1962 were passed under a special and distinct kind of legislative authority created by Article 229 (8) of the Constitution. He has asked us to note that that Article was self‑effacing in its essentially temporary and transitory character. He has emphasised that, in accordance with its specific terms, the said Article 229 ceased to have any effect on the formation of the first Electoral College under Article 158 of the Constitution which was, in fact, formed on the 21st of November 1964. This is another date of consequential nature. Mr. Brohi has further contended that on the 21st of November 1964, the date on which the Electoral College was formed under Article 158 of the Constitution, Article 229 of the Constitution expired in toto, that is to say, that anything done under that Article automatically lost its effectiveness. In this context, he has urged that President's Orders Nos. 13 and 35 of 1962, having expired on the 21st of November 1964, could not constitute the basis of the conviction of the petitioner and of the impugned order that was passed against him by the Election. Tribunal. With regard to the proposition that Article 229 of the Constitution had ceased to be of any effect, under its own terms and in the circumstances stated above, there has been no contest before us and in fact, there has been, on this point, no disagreement between the two learned Judges, who had in the first instance heard the present petition, although in the Judgment pronounced by Sattar, J., there occur passages which seems to convey the impression that, in a different context, he was hesitant to accept the proposition that laws passed under Article 229 (8) are temporary and transitory themselves. Mr. Ahmad Sobhan, who appeared on behalf of the respon dents, has readily conceded that the said Article 229 itself would cease to have effect with, and consequent upon, the formation of the Electoral College under Article 158 of the Constitution, that is, on the 21st of November 1964. He has, however, submitted that laws made by the President under clause (8) of the said Article, which confers upon the President a power to make such laws, would not themselves expire with the cessation of such power on the 21st of November 1964. According to his submission, President's Order No. 13 of 1962 and similar Orders passed by him would continue to have effect, if they were passed at a time when the President had the capacity to pass such Orders, even when the Article, which confers such law‑making power, comes to an end by a process of self- explosion. Is that so? In this connection it will be useful to notice that the present Constitution brings in three different kinds of Legislative machineries, the first being the National and the two Provincial Assemblies, the second being the Ordinance‑making power o the President and of the Provincial Governors and the third category is sui generis, for example, the provisions of Article 229 of the Constitution. The first two are supplementary and have vital points of contact with each other. The third category of legislative power, that is, power under Article 229 (8), constitutes a distinct class by itself and has no nexus with the other two. It stands apart. Article 229 is self‑existing and is expressly self‑effacing. It is distinct in its origin and in its tenure of life. It professes to be transitory and temporary. The entire machinery created by Article 229 expires under its self‑exploding process. For the purpose of bringing the Constitution into effect certain initial and preliminary steps become necessary in order to set it in motion before it could move under its own locomotion. Certain stop‑gap, ad hoc and interim arrangements had to be made in order to work the Constitution. This is the genesis of Article

229. Article 224 (1) has expressly stated that the Constitution will come into force on the day on which the first meeting of the National Assembly will be held, which, in this case, happens to be the 8th of June 1962. This provision itself necessitated some preliminary, temporary and transitory arrangements adumbrated by clause (2) of Article 224, which reads thus: "(2) This Constitution shall, to the extent necessary‑

(a) to enable the first general elections of members of the National Assembly and of each Provincial Assembly to be conducted and for the first meeting of the National Assembly to be held; and (b) to enable any other thing to be, done which, for the purposes of this Constitution, it is necessary to do before the commencing day, come into force upon the enactment of this Constitution. It is important to note the language of Article 224 (2) in setting out its object and purpose as stated above. It is clear that certain interim arrangement had to be brought into force prior to the date on which the Constitution would itself take effect in its entirety. Mr. Brohi has rightly pointed out that in Article 224 there is no reference to any specified article of the Constitution. Clause (2) of Article 224 merely says that only such part of the Constitution as becomes necessary for the purpose of enabling the holding for the first general election of the members of the National Assembly and those of the two Provincial Assemblies and for any such ancillary purpose, would come into force at once, prior to the coming into force of the Constitution as a whole. It is patent that Article 224 (2) contemplates transitional arrangements which are necessary for bringing the Constitution into operation on the appointed date. Its purpose is limited to that end. This is clear enough. It would be seen that Article 229 of the Constitution) is a constitutional device which answers the requirement of clause (2) of Article 224 of the Constitution. It would be useful, at this stage, to quote the language of Article 229 (1) of the Constitution, which reads thus: "229. (1) This Article shall have effect until an Electoral College of Pakistan is constituted as provided in Article 158 but shall not affect the operation of any other provision of this Constitution that is not inconsistent with this Article." It is patent from the very language of the provisions quoted above that this Article was designed to be temporary. Its object was to effect an interim arrangement as specified in Article 224 (2) of the Constitution. The Article itself was expressly kept alive until the formation of the Electoral College under Article 158 of the Constitution. It assumed the nature and character of a time‑bomb which would explode itself when the time‑limit for its explosion bad been reached, namely, the formation of the said Electoral College. The outer limit has been specifically and precisely stated, although the date, which could not be anticipated ab initio, was not mentioned. In passing, I "may note that Article 229 (1) has also specifically provided that "any other provision of the Constitution", which was inconsistent with that Article (Article 229) must give way. For example, Article 225 will be governed by Article 229 if any ‑clash between the two is noticed. In fact, this Article (Article 229) takes its place in a chapter, namely, Chapter 3 of Part XII of the Constitution, which has been expressly stated to be "transitional" and "temporary" provisions. The description of the chapter is by no manner of means unimportant. But, even without such external aid, the language of Article 229 itself is clear. The Article is not a novel device. Such temporary and transitional provisions recur in successive constitutional instruments relating to this subcontinent. In this connection I may add that both the learned Judges of the referring Bench have unanimously taken the aforesaid view with regard to transitory character of Article 229 itself. A comparison between the provisions of Article 229 and Part VII of the Constitution would make it abundantly clear that such was the undoubted scheme of the Constitution. The next question is: What would happen to the laws made under the Article when the Article itself dies as a life‑giving force? The principle which governs this question is so well- settled and so firmly imbedded in jurisprudential concepts that it hardly requires a further re‑statement. The principle may be stated thus: Whenever a machinery of law, which constitutes the life‑giving source from which other pieces of legislation derive their life‑stream, expires and dies, everything done under it, including "subordinate" legislation made thereunder, automatically dies when the source of life is dried up. The' logic of this is patent enough. When the life‑source dies, anything, which derives life from it, suffers a natural death as a matter of course. It is as much an axiom of common‑sense and logic as it is a biological verity. In recognition of the aforesaid principle that Article 225 of the Constitution and similar provisions in other constitutional instruments, seek to "continue" and keep alive laws which would have, but for such saving clauses expired. Similar provisions which prevent the death of "existing laws" are embodied in section 292 of the Government of India Act, 1935, Article 372 of the Indian Constitution, Article 224 of the Constitution of Pakistan, 1956 and section 18 (3) of the Independence Act, 1947. The rationale of such provisions is that when a Constitution replaces another Constitution and puts an end to the latter, every law which has derived life from the expired Constitution automatically dies unless it is "continued" and kept alive by the new Constitution. In clauses (2) and (3) of Article 225, this principle has also been more specifically recognised. In the judgment pronounced by Sattar, J., this proposition has been stated as "unassailable". The learned Judge has observed thus: "The argument that the life of a sub‑constitutional instrument is coterminous with the life of a constitutional provision under which it comes into existence or in other words when the constitutional provision lapses by efflux of time the sub‑constitutional provision made under it ceases to be operative, is unassailable." Once the aforesaid proposition is accepted, it must follow, that by the very force of Article 229 of the Constitution, all the, Presidential Orders which were made under clause (8) thereof, 'G would expire with the expiry of the Article itself. Such a result is inescapable. Sattar, J., accepts this proposition as incontrovertible. If one looks back upon the phraseology of Article 229, one is driven to the conclusion that, under the very terms of Article 229, the impugned Presidential Orders and similar Orders made under clause (8) ceased to have any effect as soon as the above‑mentioned Electoral College was formed under Article

158. If it is further asked, what is Article 229? The answer is, Article 229 is only a sum‑total of various machineries and devices, which explode themselves on the occurrence of a self‑appointed contingency. Therefore, when clause (1) says that, "This Article shall have effect until an Electoral College of Pakistan is constituted as provided in Article 158", it means nothing more and nothing less than this that any law or measure produced, under this Article would become ineffective on the aforesaid date. Sattar, J., has stated that this is a proposition which has been established by a well‑settled rule of interpretation. One may, however, recall that rules of interpretation and canons of construction do not create any new law; they provide the means to understand the law and to give a correct meaning to it. In fact, clause (1) of Article 229, as quoted above, fixes the age of Article 229 in its entirety. The age fixed by the Constitution puts its finger on a definite date, namely, the date of the formation of the Electoral College under Article 158, which is an inevitability under the mandate of the Constitution. The nearest analogy is that of bye‑laws made under a statute which expire with the expiration of the statute itself. See Watson v. Winch ((1916) 1 K B 688). See also Craies on "Statute Law", 6th Edition, page

334. The passage at pages 334‑335 thereof runs thus: "If the statute under which bye‑laws are made is repealed, those bye‑laws are impliedly repealed and cease to have any validity unless the repealing statute contains some provision preserving the validity of the bye‑laws notwithstanding the repeal. This follows from the rule stated below that when an Act of Parliament is repealed it must be considered (except as to transactions passed and closed) as if it had never existed. There is nothing in the Interpretation Act, 1889, to keep alive bye‑laws after the repeal of the statute under which they are made. The Municipal Corporations Act, 1882, whilst repealing a number of earlier Acts, by section 260 (3) kept alive bye‑laws made under those repealed Acts." I may add that clause (2) of Article 225 has done exactly what section 260 (3) of the Municipal Corporations Act, 1882, as mentioned above, has done. Salahuddin Ahmed, J., has fully elaborated the point in the judgment pronounced by him and I need not dilate on this proposition any further. Therefore, it must be held that in terms of Article 229, the impugned Order or similar other "Orders" made by the President under Article 229 (8) had expired with the formation of the Electoral College under Article 158 on the 21st of November 1964. The next question is: Has President's Order No. 13 of 1962 been saved, by Article 225 of the Constitution? Sattar, J., is of opinion that it has been so saved, whereas Salahuddin Ahmed, J., is of the view that Article 225 (1) is not applicable to laws made under Article 229 (8). This is the point of difference which has arisen in the reference. It is not necessary to quote this Article in its entirety. Clauses (1), (2), (3) and (7) of Article 225 run thus: "225. (1) Except as provided by this Article, all existing laws, shall, subject to this Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature. (2) The Presidential Proclamation made on the seventh day of October, One thousand nine hundred and fifty‑eight, is revoked with effect as from the commencing day, and the Orders specified in the Table to this clause (and Orders amending those Orders) are repealed with effect as from that day, but this clause shall not affect any existing laws made under those Orders. Number Title No. 1 of 1958 The laws (Continuance in Force) Order No. 2 of 1958 The Government (Presidential Cabinet) Order No. 2 of 1959 The Legislative Powers Order No. 8 of 1959 The State Arrangements Order "(3) All Martial Law Regulations except those specified in the Table to this clause, are repealed with effect as from the commencing day, and on that day each Martial Law Regulation so specified shall be deemed to have become an Act of the Central Legislature and shall, with the necessary adaptations, have effect as such. Date Title 7th February 1959 West Pakistan Land Reforms Regu lation. 23rd July 1959 Rawalpindi (Requisition of Property) Regulation, 1.959. 16th June 1960 Pakistan Capital Regulation. 23rd August 1961 Scrutiny of Claims (Evacuee Property) Regulation. 17th March 1959 West Pakistan Border Area Regu lation, 1959. "(7) In this Article "existing laws" means all laws (including Ordinances, Orders‑in‑Council, Orders, rules, bye‑laws, regulations and Letters Patent constituting a High Court and any notifications and other legal instruments having the force of law) in force in Pakistan or any part of Pakistan, or having extra‑territorial validity, immediately before the commencing day." Implicit in the very connotation of the term "continue" is the concept that the thing intended to be continued would have otherwise expired. One does not continue that which continues by itself. Article 225 merely seeks to keep alive provisions of law which would have otherwise died. Bearing this connotation of "continuance" in mind, it would be seen that laws made under Article 219 (8) continue (although, for a limited time) by virtue of their own force under the self‑same Constitution. They do not obviously, come within the purview of Article 225 (1), notwithstanding the fact that President's Order No. 13 of 1962 comes within the meaning of "existing law" under Article 225 (7). In this behalf, it is of vital importance to notice that President's Order No. 35 of 1962 is not an "existing law" within the definition of Article 225 (7), I having been brought into existence after commencement of the Constitution. It could not, even on the basis of the argument which has found favour with Sattar, J., be continued by Article 225 (1) of the Constitution, having come into force after 8th June 1962, that is, on 18th July 1962. But, President's Order No. 35 of 1962 continued to run its allotted life even after the Constitution had come into force on the 8th of June 1962, in spite of the fact that it was not saved as "existing law" by Article 225 because the tenure of laws made under Article 229 (8) is self‑propelling and not dependent on Article

225. One may ask, would laws, framed under Article 229 (8), have expired on the commencement of the Constitution if Article 225 did not exist? The answer is, no, they would not have expired on that date because the Constitution itself, under Article 229, has fixed its tenure. Article 229 was not repealed with the commencement of the Constitution. There is, thus, no nexus between Article 225 and Article

229. They are, geometrically speaking, parallel provisions, which do not meet at any point. Besides, clause (1) of Article 225 plainly states that the Continuation of an "existing law" is "subject to this Consti tution." This means that if there is a constitutional provision which does not countenance such continuance or which continues it for a limited time, Article 225 would not apply. The expression "subject to this Constitution" means that there cannot be any continuation of a kind which militates against the normal incident of any other provision of the Constitution. Since Article 229 limits the life of laws made under clause (8) thereof, Article 225 (1) cannot operate to continue in force such laws by removing the terminus a quo imposed by the former. Article 225 (1) does not read thus: "Notwithstanding anything in this Constitution, all existing laws shall continue in force . . . . ." The expression "subject to this Constitution" settles the point. Since clause (1) of Article 225 makes a concession in favour of other provisions of the Constitution, Mr. Brohi has said that there is no inconsistency between its provisions and those of clause (1) of Article 229 which provide that, in the event of a supposed-clash, the said Article 229 will prevail. Article 225 (1) is designed to give wav in such a context. In the sense in which the Article has been construed by Sattar, J., there would be, I say this with respects, an inconsistency between the accepted implication of Article 229 and tile terms of clause (1) of Article

225. This is why the applicability of Article 225 (1) has been stated to be "subject to" other provisions of the Constitution, for example, subject to Article 229 (1) thereof. The language of the clause continues in force an "existing law" in so far as such continuance does not violate the requirements of any other provision of the Constitution. If a law made under Article 229 (8) was born with a limited life and was applicable only for a limited time, Article 225 (1) cannot give it an extended and artificial life in N derogation of any provision of the Constitution which restricts such life. Article 229 constitutes a special genus. Article 229 (8) is a distinct kind of law‑producing machinery which moves suo moto and expires suo moto. This view of Article 225 (1) further finds strength and support from the provisions of clause (2) which repeals four legal provisions that bad hitherto functioned as law‑making machineries. Article 225 (2) while repealing the said laws goes on to say‑"but this clause shall not affect any `existing law' made under . . . . ." If it is correct to say that under sub‑Article (1) "any existing law" would continue to remain in force after necessary adaptations, then the saving clause of Article 225 (2) would be redundant because notwithstanding the repeal of a category of laws by clause (2), the laws made under such repealed laws would have been automatically saved under Article 225 (1), such "subordinate" laws being "existing laws" within the definition of Article 225 (1). The "subordinate" laws created under the bundle of laws which have been repealed by clause (2) of Article 225 undoubtedly constitute "existing laws" under clause (7) of Article

225. But, such "subordinate" laws had to be specifically saved under Article 225 (2) because they would have otherwise automatically died, clause (I) of Article 225, which is "subject to this Constitution", being impotent to save them as "existing laws." Salahuddin Ahmed, J., has elaborately discussed the meaning of the words "subject to this Constitution". He has profusely referred to various Articles of the present Constitution and similar other provisions in other laws in order to show that whenever different concepts were intended to be introduced, different language and phraseology have been used. I may add that if the laws made under Article 229 (8) are allowed to lapse upon the formation of the Electoral College under Article 158, there can be no lacuna, as Sattar, J., anticipates, if the Legislature constituted by the Constitution perform their constitutional obligation. The duty of making law in respect of elections is cast upon the Legislature by the Constitution. It is expected that the Legislature will faithfully discharge that duty. It may be recalled that the first meeting of the National Assembly under the Constitution took place on June 8, 1962, whereas the Electoral College under Article 158 was formed on the 21st of November 1964. For over two years the National Assembly had ample time to make the necessary law under Part VII of the Constitution. It was the Legislature's duty to legislate in this behalf. Another point, which has not been considered by the referring Bench, is a significant point throwing a flood of light on the proposition which I have discussed in the preceding paragraphs. It may be stated thus: President's Orders Nos. 35 to 39 of 1962 which constitute the basis of the Constitution and, to a large extent, the jurisdiction of Respondent No. 1 (Election Tribunal, East Pakistan), came into existence on the 18th of July 1962, and on subsequent dates. President's Order Nos. 35 to 39 of 1962 were not "existing laws" within the meaning of Article 225 (7) as they did not exist when the Constitution came into force, that is, on the 8th of June 1962, (See the provisions of Article 225 (7). They came into existence much later. Therefore, by no manner and means, they could have been continued under Article 225 (1). It must, therefore, be conceded and, in fact, it is conceded, that President's Order No. 35 of 1962 expired on the 21st of November 1964, the day on which the Electoral College under the Constitution was established under Article

158. Now the most vital and important thing to remember in this connection is the fact that the Election Tribunal (Respondent No. 1) was itself constituted under President's Order No. 35 of 1962, which expired on the 21st of November 1964. The result is that the Tribunal which has 'tried the petitioner and had entertained proceedings against the petitioner had ceased to function as a legally constituted authority on and from the 21st of November 1964. There is no escape from such a conclusion. Respondent No. 1, the relevant Election Tribunal, East Pakistan, being itself constituted under President's Order No.5 of 1962, ceased to be a legal entity with the expiry of President's Order No. 35 of 1962 on the 21st of November 1964. The distinction between President's Order No. 13 and President's Order No. 35 of 1962 is that the former can be described as "existing" under Article 225 (7) whereas the latter cannot be described as such. Therefore, the impugned finding arrived at by Respondent No. 1 and the order made by it against the petitioner are of no legal effect. The impugned order was passed by an authority which had no legal existence on and from the 21st November 1964. Mr. Brohi is, therefore, entitled to succeed even on this point alone, although the main contention advanced by him, namely, that all laws made under Article 229 (8) expired, as stated above, must also be upheld. I now turn to the arguments of Mr. Ahmad Sobban. He has urged that, although it is true that the power of the President to make law under Article 229 (8) had ceased to exist on the 21st of November 1964, the date on which the Electoral College was constituted, the laws already made by him at a time when such a power subsisted, would continue to exist. But, how? The argument advanced by him postulates, that even when the source which supplies life to a law dies, the law itself will not die. This is a proposition which cannot stand the test of scrutiny for a moment. We have already discussed, at length, the well-established and universally accepted principle that when the source expires all laws that flow from such source dry up and die as a matter of course. Conversely, when the source is alive, although under a transformation, different considerations will arise. In this behalf it will be useful to advert to the pronouncement of Lord Goddard in the case of Rex v. Wicks ((1946) 2 All E R 529 ) which has been exhaustively quoted in Mr. Brohi's book, "Fundamental Law of Pakistan" at page V

6. The following observations throw considerable light on the subject. In the case of Rex v. Wicks the Court of Criminal Appeal had occasion to interpret section 11 (3) of the Emergency Powers (Defence). Act, 1939, which had provided: 'The expiry of this Act shall not affect the operation thereof as respects things previously done or omitted to be done. The question raised was whether notwithstanding the previous expiry of the Act the subsection could be invoked to justify the conviction of the appellant. The acts for which the prisoner was charged were committed between April 1943 and January 1944, and the Emergency Powers (Defence) Act, 1939, expired on February 24, 1946. The trial of the prisoner took place on May 27th and 28th, 1946. Lord Goddard, Chief Justice, summed up the legal position regarding the posthumous operation of repealed, as contradistinguished from temporary, Acts, as follows (at pp. 531‑32): "The question is one of some difficulty and the Court has had the advantage of very full argument on both sides in which all the relevant authorities have been brought to their attention. The first observation which the Court would make is that they are in complete agreement with the decision of the Divisional Court in Willingale v. Norris (1909) 1 K B 57; 14 Digest 203, 1826; 78 L K J B 69; 99 L T 830; 72 J P 495, that where a statute enables an authority to make regulations, a regulation made under the Act becomes for the purpose of obedience or disobedience a provision of the Act. The regulation is only the machinery by which Parliament has determined whether certain things shall or shall not be done. It is, there fore, clear that the regulations must be read as though they were contained in the Act itself. They derive their efficacy solely from the Act and accordingly expire with the Act, but it may be that the Legislature has provided that some restrictions or consequences shall remain effective notwith standing the expiration of the Act." I may add, as I have already indicated above, that this is the legal philosophy and juridical basis of provisions like Article 225 of the present Constitution and similar provisions in other constitutional documents. Transposing the aforesaid passage, quoted above, into the texture of Article 229, it is clear that all the laws passed by the President under Article 229(8) derive their efficacy from Article 229 and that they must be read as though they were contained in Article 229 itself. Accordingly, when Article 229 expires, the aforesaid laws made by the President under sub- Article (8) automatically die a natural death by the very force of the Article which effaces itself on the formation of the Electoral College under Article

158. Mr. Sobhan had drawn our attention to the case of Begum Shamsunnahar v. The Speaker, East Pakistan Provincial Assembly (P L D 1965 S C 120) which, in my opinion, has no bearing on the case before us. In that case the petitioner incurred a disability from retaining her seat in the Assembly by virtue of a provision of a Presidential "Order" which put an embargo on the wives of Government servants in respect of membership of a Legislative Assembly. The petition, which was heard under Article 98 in this Court, was rejected. It was argued on behalf of the petitioner that the impugned "order", which was made under the National and Provincial Assemblies (First Elections) Order of 1962 had infringed the provisions of Article 103 of the Constitution. This argument was repelled by the High Court and, on appeal, the judgment pronounced by this Court was affirmed. The Supreme Court also repelled the contention that the impugned Order which was passed by the President was under Article 224 of the Constitution. It was pointed out that the impugned law was, in fact, expressly enacted under clause (8) of Article

229. Fazle Akbar, J., in pronouncing the opinion of the Supreme Court, observed thus: "Thus the intent of clause (8) was to give power to the President to make provisions with respect to elections before constitution of the Electoral College." It will be noticed that Fazle‑Akbar, J., himself noticed that the power would last until the formation of the Electoral College. This case has hardly any bearing on the points which have been mooted before us. At the relevant time the "Order" passed by the President under Article 229(8) had not expired as the above‑mentioned Electoral College under Article 158 had not come into existence. On the contrary, the above‑mentioned case indirectly supports the contention of Mr. Brohi. Mr. Brohi has drawn our attention to the decision in the case of Muhammad Siddiq v. Chief Settlement and Rehabilitation Commissioner, Lahore (P L D 1965 S C 123). In that case what happened was that under an Act certain powers were conferred upon the Chief Settlement Commissioner to pass certain "orders" by which he could transfer or dispose of properties enlisted in such "orders". What happened was that the law which conferred powers on the Settlement Commissioner to make such "orders" was itself altered by the Legislature after sometime. It was mooted that the Chief Settlement Commissioner, having lost power to make such "orders" under the altered law, could no longer take legal steps under "orders" which were passed before he was divested of a ‑power to provide such "orders". That contention was upheld and it became the ratio decidendi of that case. S. A. Rahman, J., in delivering the opinion of the Supreme Court, made the following observations: "The learned Attorney‑General who appeared to oppose the appeal, on behalf of the Settlement Authorities, contended that the matter was not governed at all by the order. Section 10 of the Act was substituted by another section by Ordinance II of 1962 on 13,1‑

62. In the new section, instead of the old clause (b), the following was inserted as subsection (2):‑ '(2) Notwithstanding anything contained in subsection (1) the Central Government may order the transfer in public interest of any property out of the compensation pool in such manner as it may deem proper.' Henceforth, therefore, there was no question of transfer by the Chief Settlement Commissioner of any evacuee property under this clause, with the approval of the Central Government. In future, only the Central Government could order transfer in public interest. In view of this change of the law, the order issued on the 2nd of September 1961, under clause (b) of section 10, as it then stood, had lost its efficacy." It may be noted that "orders" which were good and valid when they were made, lost their efficacy with the subsequent alteration of the law as stated above. I would like to take leave of this point by stating that in order to understand the principle involved in this case, in its appropriate context, it is necessary to bear in mind, what I have discussed above, namely, Article 229 (8) is a self‑sufficient, self‑existing and self‑expiring. It has no nexus whatsoever with other law‑making organs. This is what Mr. Brohi meant when he said that the provisions of Article 229 (8) could not be repealed by any other kind of law‑making machinery. But, whether laws made under Article 229 (8) could be repealed by the Legislature is a point which need not be considered now. I prefer not to express any opinion on this point, at the present moment. The governing principle may, however, be re‑stated thus: (a) When a legislative machinery becomes a life‑bestowing source from which other laws derive life, it must follow that when the source itself dies everything that owes its existence to the source must also die unless it is kept alive by a new kind of force which can impart a fresh lease of life. (b) When the machinery still functions as a living force, and is merely re‑enforced with replacements of worn‑out parts, the source of life does not dry up. One may recall that the Constitution has provided for Legislative Assemblies which are replaced by successive General Elections. The said Legislative Assemblies, in spite of such transformations, do not die because the life‑source, namely, the Constitution, is alive. Therefore, laws made by one National Assembly do not die when a newly‑elected Assembly comes into being upon a subsequent election because the new Assembly is a mere replacement of the Assembly under the same Constitution.. The second Assembly is a continuation of the previous Assembly. (c) Article 225(1) does not continue in force laws made under Article 229 (8) because Article 225 (1) does not apply to the latter by express requirement of Article 229 (1). Besides, Article 225 (1) is "subject to" Article 229 (1). (d) Laws made under Article 229 (8) stand in a distinct class by themselves. They are self‑existing and self‑effacing. (e) In any event, President's Order No. 35 of 1962, under which respondent No. 1 was constituted, undoubtedly expired on the 21st of November 1964, for it cannot be described a "existing law" under Article 225 (7), having come into force after the 8th of June 1962, that is, after the Constitution itself) had come into force. The petitioner is entitled to have the rule made absolute on this point also. Lastly, I may deal with a somewhat naive argument advanced by Mr. Ahmad Sobhan. He has drawn our attention to Article 250 of the Constitution, which reads thus: "

250. Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of this Constitution, the repeal shall not‑ (a) revive anything nit in force or existing at the time at which the repeal takes effect; (b) affect the previous operation of the law or anything duly done or suffered under the law; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed. Mr. Sobhan has argued that since various acts alleged to have been done by the petitioner and, upon which he has been convicted by the Respondent No. 1, were committed at a time prior to the formation of the Electoral College under Article 158, the impugned order passed against the petitioner was saved by Article 250, as set out above. This contention does not require any serious consideration. In the first place, it would be seen that Article 229(8) has not been "repealed". It has ceased to become effective on and from the 21st of November 1964. The laws made under Article 229 (8) expired and lost their efficacy by efflux of time. They have not been repealed. Secondly, it is clear that even if the laws made under Article 229 (8) had been repealed, Article 250 cannot help to support the aforesaid contention of Mr. Sobhan. We have seen above that proceedings against the petitioner were set in motion after the relevant law, under which he was convicted, had expired. It would be next seen that, although it was alleged that the petitioner had committed certain acts prior to the 21st of November 1964, yet he (the petitioner) had not "incurred" any "liability" until it was so adjudicated against him by the Election Tribunal (Respondent No. 1). Acts alleged to be done by the petitioner constitute evidence upon which a "liability" could be "incurred" upon a consequent and subsequent finding by a competent authority. It may be remembered that notice was served on the petitioner on the 27th of November 1964, under Article 26, clause (2), proviso (a), of President's Order No. 13 of 1962, after the said President's Order No. 13 had expired on the 21st of November 1964. The petitioner was convicted and named on the 30th of April 1965. Can there be any question of his having "incurred" any "liability" prior to the 21st of November 1964? 1 am not concerned with "any investigation" in this petition. No "proceedings" having commenced before the 21st of November 1964, could be "continued" or "enforced" after the said date. It would be seen that the language of Article 250 is virtually and practically the same as that of section 38 of the Interpretation Act, 1889 (a British statute). In Craies on "Statute Law", 6th Edition, at page 334, it has been observed: "There is nothing in the Interpretation Act, 1889, to keep alive bye‑laws after repeal of the statute under which they are made." See also Watson v. Winch ((1916) 1 K B 688) and R. v. Ellis, Ex. p. Amalgamated Engineering Union ((1921) 125 L T 397). Watson v. Winch Lord Reading had noticed the provisions of section 38 of the Interpre tation Act which had no effect on the prosecution under consideration of the King's Bench. HASAN, J.‑I agree. A. S. CHOWDHURY, J.‑I agree. Ordered that the Rule nisi is made absolute and the impugned order passed by the Election Tribunal, East Pakistan, on the 30th of April 1965, so far as it relates to the petitioner, finding him guilty under Articles 61 and 62 of the President's Order No. 4 of 1962 and naming him in the judgment relating thereto is declared to have been made without lawful authority and is of no legal effect and, as such, is void and inoperative. There will be no order as to costs of this petition. Leave under Article 58 of the Constitution, as prayed for by Mr. Ahmad Sobhan, is refused. A. H. Rule made absolute.