Afzal Khan Shinwari VS FOP, M/o Law & Justice & other

JUDGMENT SHEET.

IN THE ISLAMABAD HIGH COURT,

ISLAMABAD.

Writ P*ition no.Za

Afzal Khan Shinwari.

Vs Federation of Pakistan, etc.

Petitioners By Mr. Iftikhar Ahmad Bashir, Advocate.

Respondents By Raja Inam Amin Minhas, Advocate.

Raja Khalid Mehmood Khan, learned Deputy Attorney General. .

Ms. Rabeea Anwar, Joint Secretary, Senate.

Date of hearing t4.02.2019

AAMER FAROOQ J. - The petitioner, in the instant petition, has challenged the role of respondent No.2 as acting President of Pakistan.

2.The necessary facts for disposal of the instant petition are that respondent No.2, namely Muhammad Sadiq Sanjrani is Chairman of the Senate.

Under the Constitution of Islamic Republic of Pakistan, L973 (the Constitution) Senate Chairman is to assume the position of acting President while the President is unable to perform his duties. The petitioner has challenged the assumption of the said role by respondent No.2 on the basis that respondent No.2 does not fulfill qualifications prescribed for the President in the Constitution.

3.Learned counsel for the petitioner, inter alia, contended that Article 4t of the Constitution of Islamic Republic of Pakistan, t973 prescribes the qualification for a person to be eligible for election as the President; that under the referred Article a person cannot be President unless, inter alia, he is 45 years of age. It was contended that respondent No.2 is not 45 years old, hence is not qualified to be appointed as the President. It was submitted that since

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respondent No.2 cannot be appointed as President he cannot be notified as acting President.

4.Learned Deputy Attorney Genera!, inter alia, contended that the instant petition is not maintainable as it has been filed to defeat legislative intent.

It was further submitted that the Courts are restrained from inquiring into motives of legislation. Reliance was placed on case reported " Fauji Foundation and another vs. Shamimur Rehman" (PLD 1983 5C 457). It was fufther submitted that since the petitioner is not an aggrieved person, hence the petition is not maintainable. On merits it was submitted that respondent No.2 only acts as acting President and not elected President; the qualifications essentia! for appointment of the President are not applicable to acting PresidenU that under Article 49 only stop gap arrangement has been provided and under no circumstance Chairman of the Senate becomes President of the country on the regular basis. Learned Deputy Attorney General submitted that the controversy has already been raised before the Hon'ble Division Bench of the Balochistan, High Couft in case repofted as "Jameel Ramzan Dehwar, Advocate us, Sadiq Sanjrani and 03 othets" (PLD 2078 Balochistan 67), Learned Deputy Attorney Genera! also took the Couft through the debates of the National Assembly while framing the Constitution specifically to the effect that National Assembly chose not to prescribe qualifications for the acting President.

5.Learned counsel for the pafties have been heard and documents placed on record examined with their able assistance.

6 As noted above, the petitioner has challenged the appointment of respondent No.2 as acting President on account of the fact that he is not 45 years old; hence does not qualify for appointment as the President. Article 4L of the Constitution creates the office of the President. For the sake of brevity, the referred Afticle is reproduced below:-

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"41. (1) There shall be a President of Pakistan who shall be the Head of State and shall represent the unity of the Republic.

(2)A person shall not he qualified for election as Pr*idenf unless he is a Muslim of not less fhan forty-five years of age and is qualified to be elected as member of the National Assembly.

(3)The President nf**l shall be elected in accordance with the provisions of the Second Schedule by the members of an electoral college consisting of:

(a)the memberc of both Houses; and

(b)the members of the Provincial Assemblies.

(4)Election to the office of President shall be held not earlier than sixty days and not later than thirty days before the expiration of the term of the President in office: Provided that, if the election cannot be held within the period aforesaid because the National Assembly is dissolved, it shall be held within thirty days of the general election to the Assembly.

(5)An election to fill a vacancy in the office of President shall be held not later than thirty days from the occuffence of the vacancy:

Provided that, if the election cannot be held within the period aforesaid because the National Assembly is dr.ssolve4 it shall be held within thifty days of the general election to the Assembly.

(6)The validity of the election of the President shall not be called in question by or before any court or other authority".

7.The bare reading of the said Article ibid shows that no person is qualified for election as President unless he is a Muslim and not less than 45 years of age and is qualified to be elected as member of the National Assembly.

In case of absence of the President, Chairman Senate or Speaker National Assembly acts and/or perform functions of the President under Afticle 49 of the Constitution. The said Afticle reads as follows:- "49, (1) lf 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 acf as President until a President is elected in accordance with clause (3) of Article 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 foo is absent or unable b pertorm the functions of the office of the President, the Speaker of the National Assembly shall perform the functions of President until the Prcsident returns to Pakistan ori as the case may be, resumes his functions."

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8.The bare reading of the Article shows that if the office of President becomes vacant by reason of death, resignation or remova! of the President, or the President, by reason of absence from Pakistan or any other cause, is unable to peform his functions, the Chairman or, if he too is absent or unable to peform the functions of the office of the President, the Speaker of the Nationa!

Assembly shall peform the functions of President until the President returns to Pakistan or, resumes his functions, or a President is elected under Article 4t(3) of the Constitution. The conjunctive reading of Afticle 41 & 49 of the Constitution shows that where office of the President is vacant or the President is unable to peform functions due to any reason, the Chairman Senate or Speaker National Assembly is to perform duties as acting President. The said arrangement is only temporary in nature as a stop gap arrangement unti! the President resumes his duties or is re-elected.

9.It is an admitted position that eligibility criteria for appointment as Chairman Senate or Speaker Nationa! Assembly is provided in the Constitution in terms of their age and/or the other attributes. Any person who is elected as a Senator or Member of National Assembly can be elected as Chairman Senate or Speaker National Assembly. The official report of debates of the National Assembly of Pakistan for making of the Constitution was placed on record, which specifically shows that an amendment in the proposed Constitution was suggested spelling out the eligibility/qualification for the Chairman Senate and/or Speaker Nationa! Assembly but same was not carried. The relevant portion of the questions and answers is reproduced below:-

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Wrft Petltlon No. 2408 of 2018

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Sir, the question is that this is the privilqe of all the memberc of this House to el*t any Fnfin who is a member of this Houre b the Offie of Chalrman aN Deputy Chairman, 9ir, f donT ansider that therc is any justiftation, any democratic principle, any Principle whidt will be the negation of the prtnciple laid down by the father of the Nation in his very first spwh and there gentlemen on the other side arc onshndy trying to split up the Pakifrnl nation, Of out*, it is an Islamic @unfi and we haye povided that the Head of the Sbte whidt is to be elqted will E a Muslim,

Writ Petition No. 2408 of 2018

10.This Court in order to decide the intention of the legislature can look into Parliamentary debates. Reliance is placed on "Zahoor Ahmed us, The State' (PLD 2OO7 Lahore 231) "District Bar Association us. Federation of Pakistan" (PLD 2075 SC 401) "Pepper (Inspector of Taxes) vs, Hart" (7993 SCMR 7079; t(1992) 3 WLR 7032J and "Mohammad Mubeen us Salam us. Federation of Pakistan' (PLD 2006 SC 602). In 7993 SCMR 7079, the House of Lords opined as under:- "Statute law onsi# of the wotds that Parllament has enacted, ft is for the CourB to onstrue tho* words and it is the Court's duU in s doing to give effi to the inhntion of Parllament in using tho* wotds, ft is an inewpable fact that, dupiE all the carc taken in passlng leglslation, fime sbtutoty provisions when applied to the circums-tances under consideration in any spulftc ase afie found to b ambiguous, Why in such a ca* should the CourB blind themelves to a clear indicatlon of what Parliament lnhnded in using tho* words? The Court annot atfuclt a maning to wotds whictt lhey cannot b@r, but if the wotds arc apble of baring mone than one meaning why should not' Parliament's true intention be enfoted rather than thwarfud, The @ufts Gan now look at whitc paperc and official ,eporb for the parpo* of finding the 'mischief nught to fu arffi, although not at dnfr clau*s or prcpoals for the rcmedying of such mischief, A minishrial sbhment made in Parliament is an egually authoritative soutce of such information: why should the Cout* be cut off fiom iltis sute of information as to the mirchief aimed at? In any eyent the distinction between looking at rcpor8 to identify the mi*hief aimed at but not to find the inhntion of Parliament ln enacting tlte lqislatlon is highly artificial, lhe onclusion, thercforc, is that parliamentaty maErial an be usd as an aid to the constracfron of shtute whetet (i) legislation is ambiguous or obscute, or leads to an absurdity; (ii) the mahrtal rclld apon onsl# of one or mone fuEmenE by a Minishr or other ptomphr of the Bill bgether if neesnry with such other parliamentary mahrial as is n@esery to understand such stafumenE and their efrect $ii) the stahmenB relid apon ate clean"

"TIre ever inaeasing volume of lqislation must ineuitably rcsult ln ambiguitie of statutory language whidt arc not peteived at the time the lqislation is enacte.d, The object of the Court in interprcting legislation is to give effectr so far as the language permiE, b the intention of the I lslatute, ff the language pnoves to be ambiguous therc is no sound nason not to ansult Hanatd (ofllcial twrd of parllamentary dehW in U.K.) to se if therc is a clear stahment of tfie meaning that the wotds arc inhndd b carry, The days have long psd when the CourB adopEd a strict ansiluctionlst uiew of inhrprctation which rcguircd them lo adopt the litenl maning of the language, The Coutb now adopt a putposive apprcach which elelcs to

Writ PeUtion No. 2408 of 2018

give effect b the ffite putpo* of leglslation and arc prcptd to look at much utanous mahrial that barc apn the backgruund againil which the legislation was enacfud, Why then cut ourxlvs ofr fiom dte one soute in whlch may be found an authoritative statement of the infunfron with which the lqislation is plaad bebrc Parliament" The above debates show that while framing the Constitution the Assembly was mindful of the fact that a person appointed as a Chairman Senate might be a Non-Muslim and might have to act as President, in absence of regular incumbent, but decided to leave the issue open and did not make an amendment (under Article 4L of the Constitution in order to contest election for President a person has to be a Muslim).

11.The Hon'ble Division Bench of Balochistan, High Court in case repofted as "Jameel Ramzan Dehwar, Advocate us, Sadiq Sanirani and 03 otherc" (PLD 2Ol8 Balochistan 67) has already decided the instant issue. The relevant part of the judgment is reproduced below and as follows:- "lt was case of the petitioner that the election for Chairman of the Senafe was held on 12th March 2018, while respondent No. 1 Sadiq Sanjrani was declared as Returned Candidate, thus elecfed as Chairman of the Senate, and hold the post, That one of the duties of the Chairman of the Senate is to hold the office of the President of Pakistan in his absence, and to pefiorm the duties till his return. That the qualifications to be elected as the President of Pakistan as contained in Afticle 41, sub-Article (2) of the Constitution of lslamic Republic of Pakistan 1973 (The Constitution) that he must be a Muslim, and not less fhen than forty five (45) years of age, and also qualified to be elected as a member of the National Assembly. lt was his case that Article 49 sub. Article (2) of the Constitution, the Chairman of the Senate has to hold the office of the President in the eventualities as described, but the respondent No. I failed to meet the criteria, as he was bom on 14th April 1978, and by now 39 years, old, thus not qualified to acf as President of Pakistan. That this disability to pefiorm the duties would not only create a serious constitutional defect, but also seriously prejudice the country, and the national interest. That this serious violation of the Constitution was overlooked when the Notification of r*pondent No. 1, to be elected as Chairman of the Senate was issued, thus of no legal effect.

The term Chairman defined in Article 260 of the Constitution, with the meaning the Chairman of the Senate, and except in Article 49 of the Constitution, includes a person acting as a Chairman of the Senafe.

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Article 59 of the Constitution deals with the Senate, and contained the procedure for appointment of members of the Senate. While Article 60 of the Constitution is with election of offices of Chairman and Deputy Chairman of fhe Senate. Re-production would be beneficial: "60. (1) After the Senate has been duly constituted, it shall, at its first meeting and to the exclusion of any other Dusrness, elect from amongst iE membersr a Chairman and a Deputy Chairman and, so often as the Office of Chairman or Deputy Chairman becomes vacant, the Senafe shall elect another member as Chairman or, as the case may be, Deputy Chairman,

(2)The term of office of the Chairman or Deputy Chairman shall be three years from the day on which he enters upon his office."

While Article 62 contained the qualifications for member of the Parliament, the National Assembly and the Senate. While Sub-Article (1) clause (c) of the Afticle pertained to the requiremenfs fo be fulfilled by a person to qualtfy to be elected or chosen as member of Senate. Reproduction of clause (c) would be beneficial for better understanding of ffie issue. lt reads as under: "(c) he is, in fhe case of the Senatg not less than thifi years of age and is enrolled as a voter in any area in a Province or, as fhe case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership; " For better understanding of the tlssue that a member if not qualify the age required to be elecfed as President whether could he be elected as Chairman of the Senate? The referred to provisions of the Constitution are to be read co-jointly, not in isolation. The Articles 60 and 62 of the Constitution if read co-jointly the only logical inference which could have been drawn that a person apaft from other qualifications might not be less tfian thirty years of age to be qualified to be elected as Member of the Senafe. While a Chairman or a Deputy Chairman of the Senate have to be elected from amongst iE memberc. No age to elect as Chairman or Deputy Chairman is separately described in any other Article of the Constitution.

As far the President is concerned, Arlicle 41 of the Constitution stipulates the qualifications of a person to be elected as President. While sub-Article (2) of the Article 41 of the Constitution described the limit of age, it reads as under:

"(2) A person shall not be qualified for election as Presidenf unless he is a Muslim of not less fhan forty-five yeans of age and is qualified to be elected as member of the National Assembly.'

While Afticle 49 of the Constitution is fo meet with the requirement to continue the office of the President in his absence for the stated reasons, The Afticle rep rod u ced fo r better u n dersta n di n g : "49. (1) lf the office of President becomes vacant by reason of death, resignation or removal of the President, the Chairman or, if he is unable to pertorm the functions of the office of President, the Speaker of the National Assembly shall acf as President until a President is elected in accordance with clause (3) of Article 41.

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(2)When the President, by reason of absence from Pakistan or any other cause, is unable to peilorm his functions, the Chairman or, if he foo is absent or unable to pefiorm the functions of the office of the President, the Speaker of the National Assembly shall perform the functions of President until the President returns to Pakistan or, as tfe case may be, resumes his functions." Plain reading of the referred to Articles shows that there is no mention of the age of a person to act as President while holding offices of the Chairman or the Speaker as the case may be in the given circumstances. The cumulative effect of the referred to Afticles would be that a person qualified to be elected as President, must not be less fhan forty-five (45) yearc of age, apart from other qualifications as described. While to deal with the situation when the office of the President is vacant due to his absence for the stated reasons, the Chairman of the Senate shall occupy the office and perform the duti* till re-election or retum as the case may be. To further meet with the situation ffie Speaker of the National Assembly is marked as an altemate. Afiicle 49 of the Constitution while dealing with alternate of the President to act in his absence for the stated reasons, provided no limit of age except the reasons of vacation of office and the alternate to fill it (Office) by d*ignation of the posfs i.e. the Chairman of the Senate and the Speaker of the National Assembly. None of the Articles of the Constitution described age of the persons who shall hold the offices of the Chairman of the Senafe and the Speaker of the National Assembly, who are to be elected ftom amongst iE members irrespective of the age. Afticle 62 (1) clause (b) of the Constitution stipulates the age of a person qualified to be elected as member of National Assembly as not less fhan lwenS-five (25) years, while Article 62 (1) clause (c) describe the age of a penlon qualified to be appointed as Member of fhe Senate as not Iess than thir{ Pq years of age apaft from other qualifications. ln view of the language as used in Afticle 49 of the Constitution, the age of Chairman of the Senafe or of fhe Speaker of the of the National Assembly not a pre' requisite, nor a condition to act as the President of the Country in stated circumstances."

L2. The above judgment of the Balochistan High Coutt aptly discussed the relevant law and has come to the right conclusion that respondent No.2 is not barred from assuming the role of acting President even though he is still not yet 45 years old. To my mind the Hon'ble Division Bench in case repofted as "Jameel Ramzan Dehwar, Advocate us, Sadig Sanirani and 03 otherc" (PLD 2078 Balochistan 67) has correctly interpreted the Constitution and there is nothing available on record or otherwise which could persuade me to arrive at a different conclusion, Framers of the Constitution chose the Chairman

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Senate or Speaker National Assembly to be the acting President by viftue of their designation. If the referred persons have validly been elected as Senate Chairman or Speaker National Assembly inasmuch as were qualified to be elected as such, they can be appointed as acting President. The Hon'ble Supreme Court of Pakistan in Suo Moto case No. 8 of 2018 held that redundanry could not be attributed to the framers of the Constitution.In "Shahid Nabi Malik us, Chief Election Commissione( (PLD 7997 SC 32) the august Apex Court propounded the principles regarding interpretation of Constitution. It was obserued as follows:-

"While interpreting a Constitutional provision it must be remembered that, a Constitution unlike a statute cannot be changed or amended frequently. A document of such a basic nature is nut merely the imprtsonment of past but is also alive to the future aspiration and need of the nation. Therefore, while interpreting a Constitutional document it must be read and considered as a whole to discover the true intention of iE trainers. lt is for these, reasons that no redundancy, surplusage, absurdity inconsistency can be attributed to the framers of the Constitution. Tin; r nit of harmonious interpretation provides that the Court while literally interpreting a provision of the Constitution notices apparent inconsistency as a result of such construction with another provision of the Constitution on the same subiect, it may notfollow the grammatical and literal construction of the words and adopt a construction which would harmonise the tvro apparently conflicting provisions and, make their working purposeful and in accordance with the intention of Legislature.

Where the language of a statute, in ifs ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or iniustice presumably not intended, a construction may be put upon it which modifies the meaning of the ; words, and even the structure of the sentence.

The, normal rule of interpretation is that the words used by the Legislature are generally a safe guide fo ifs intention. No principle of interpretation of statutes is more firmly settled than the rule that the Court must deduce the intention of Parliament from the words used in Act" What is true of the interpretation of an ordinary 'statute is not anythel*s true in fhe case of Constitutional provisions, and the same rule appli* equally to both. But if the words of an instrument are ambiguous in the sense that they can reasonably bear more that one meaning, that is to say, if the words are semantically ambiguous, or if a provision, if read literally, is patently incompatible with the other provisions of that instrument, the Court would be justified in construing the words in a manner which will make the particular

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b

provision purposeful. That, in essence, is the rule of harmon ious co nstruction. "

13.Likewise in "Pir Sabir Shah vs, Federation of Pakistan'(PLD 7994 SC 738) the august Apex Court held that Constitution is to be interpreted in a manner, which may harmonize its various provisions or may not render any provision inoperative or redundant. To hold that respondent No.2 though is Senate Chairman but cannot be appointed as acting President because he is not eligible to be appointed as such would amount to negate Afticle 49 ibid and make the same redundant which, as noted above, cannot be done.

L4. In view of above, the instant petition is without merit and is accordingly dismissed.

(ffi-rimTARooa)

JUDGE

Announced in Open Court on 15.04.2019.

JUDGE

ShakeelAftal/.

Approved for repofting

Uploaded By :- Engr.Umer Rasheed Dar