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Petition No. 42 of 1964, decided on 31st July 1964.

(President's Order No. 39 of 1962)‑Not ultra vires.

Arts. 229 & 158‑Power of President under Art. 229 (8) to legislate with respect to election or referendum‑Includes power to amend legislation made in exercise of that power‑Such power continues till constitution of Electoral College under Art. 158‑Election Laws Amendment Order (President's Order No. 39 of 1962.)

The vires of the Election Laws Amendment Order, 1962 was challenged on the ground that the President having once exercised his power under Article 229 of the Constitution of Pakistan (1962), was not competent to alter the provisions made by him under clause (8) of Article 229. The argument was that since exercise of the power under Article 229 was not reserved under the Constitution, the same could not be exercised after its first exercise:

Held, clause (1) of Article 229 of the Constitution of Pakistan (1962) clearly points to the conclusion that the power of the President in clause (8) will continue until the Electoral College contemplated by Article 158 of the Constitution is constituted and, therefore, laws made under, that clause could be amended by the President in spite of Articles 164 and 171. of the Constitution until the Electoral College is constituted. The power under clause (8) of Article 229 is legislative and one who can legislate can also amend a legislation made in exer cise of that power unless the power comes to an end. The argument that the first exercise of power by the President under Article 229 puts an end to his power, and he could not alter the law once made by him is negatived not only by the clear provision of Article 229 but also by the scheme of the Constitution. The approach in this Constitution appears to be that so far as the elections which are to be held for bringing into existence the first legislatures in the country, the President will make the laws relating to them and not only such laws will remain in force until the Electoral College contemplated by Article 158 comes into existence but the powers of the President in this regard would also continue until such time.

Abeyesekera v. Jayatilake 1932 A C 260 distinguished.

(President's Order No. 4 of 1962) [as amended by Election Laws Amendment Order (President's Order No. 39 of 1962)], Art. 77‑ Disqualification‑Amounts to imposition of penalty‑Amendment of provision of Art. 77‑Prospective and not retrospective‑Additional provision introduced in .Art. 77‑Ndt applicable to person found guilty .of corrupt or illegal practice committed before amendment of Article‑Constitution of Pakistan (1962), Art. 6 (3), para. 4.

John A. Cummings v. The State of Missouri U S S C R Lawyers' Edition, Vol. 18, p. 356 and In re : James J. Medley U S S C R Lawyer' Edition, Vol. 33, p. 835 ref.

Hamidul Haq Chowdhury and Badrul Haider Chowdhury for Petitioner.

Tofel Abdur Rahman Attorney‑General and Md. Nurul Huda Deputy Attorney‑General for Respondent.

Date of hearing: 9th July 1964.

.‑Mr. Jamalus Sattar, the petitioner, and 4 others including Mr. Badrul Haque Khan, were candidates for election to the National Assembly from the Constituency No. NE. Chittagong III. The petitioner was elected to the National Assembly defeating the rival candidates. Mr. Badrul Haq Khan then filed an election petition under section 9 of Chapter III of the Settlement of Disputes (First Elections) Order, 1962, (President's Order No. 13 of 1963) for declaring the election of the petitioner void. . By an order dated the 8th February 1963, the election of the petitioner was declared void on the grounds that being an enlisted contractor of the Government of East Pakistan he was disqualified under section 116 of the Representa tion of the Peoples Act, 1957 to be a candidate for election and that he was guilty of corrupt practice as he had entertained voters at a project meeting held at Anwara. The petitioner thereafter filed an application under Article 98 of the Constitution challenging tile decision of the Tribunal. The Rule obtained in that case was made absolute by a Division Bench of this Court but that decision was set aside by the Supreme Court on the 3rd October 1963 (P L D 1963 S C 704), 'on an appeal preferred by Mr. Badrul Haque Khan. The Supreme Court found that the finding of the Tribunal with regard to corrupt practice was based on admissible evidence and, therefore, the High Court in exercise of its jurisdiction under Article 98 of the Constitution could riot set aside such a finding of fact. The petitioner, however, was found not to be disqualified to be elected to the National Assembly under section 116 of the Representation of People Act as he had no subsisting interest in any existing contract with Government. On the 7th November, the Chief Election Commis sioner issued a notice on the petitioner asking him to show cause why the disqualification in Article 77 of the President's Order No. 4 of 1962 should not be imposed on him. Thereafter the Chief Election Commissioner by an order dated the 30th December 1963, disqualified the petitioner from being or being elected as a member of the National or' Provincial Assembly for a period of two years from the date of the order. It is this order which is the subject‑matter of challenge in this petition.

Clause (8) of Article 229 of the Constitution provides that the President may, by order, make such provision with respect to any election or referendum as, under this Constitution, is permitted or required to be made by law. Article 164 provides that Elections and referendums required to be held under this Constitution shall; subject to this Constitution, be conducted and decided in such manner as may be provided by law. President's Order No. 4 of 1962 called the National and Provincial Assemblies (First Election) Order, 1962, was promulgated in accordance with the provisions contained in Article 164 and clause (8) of Article 229. Article 77 of the President's Order No. 4 of 1962, as promulgated originally, read as follows:‑

"Where a person has been convicted for any offence under this Order, he shall, if the Commission makes an order to that effect, be disqualified from being, or being elected as, a member of any Assembly for such period, not exceeding four years, as may be specified in such order."

This Article, however, was amended by President's Order No. 39 of 1962, to read as follows:‑---

"Where a person has been convicted for any offence under this Order or has been found guilty of any corrupt or illegal practice by a Tribunal under paragraph (a) of clause (2) of Article 26 of the Settlement of Dispute (First Election) Order, 1962 (President's Order No. 13 of 1962) he shall if the Commis sioner makes an order to that effect, be disqualified from being or being elected as a Member of any Assemblies for such period not exceeding four years as may be specified in such order."

Mr. Hamidul Huq Chowdhury has challenged the vires of the amending Ordinance. He has contended that it is true that the President was empowered to make provision under clause (8) of Article 229 for election but once having done so by Order No. 4 of 1962, no amendment could be made by him of its provision after, the Legislature has come into existence. Learned Advocate has contended that clause (1) of Article 229 only fixed the outer time limit within which the President could make provision for election under clause (8) of Article 229. It, however, does not mean that having once made provisions he could alter the same liter.

Clause (1) of Article 229 provides that the said 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. The above provision clearly lays down that any provision of the Constitution which is inconsistent with Article 229 must give way to the latter. In our view, however, clause (1) of the Article clearly points to the conclusion that the power of the President in clause (8) will continue until the Electoral College contemplated by Article 158 is constituted and, therefore, laws made under that clause could be amended by the President in spite of Articles 164 and 171 of the Constitution until the Electoral College is constituted. The power under clause (8) of Article 229 is legislative and one who can legislate can also amend a legislation) made in exercise of that power unless the power comes to an end.

The argument of the learned Advocate for the petitioner on the analogy of section 309 of the Government of India Act, 1935, and on the authority of the decision in the case of Abeyesekera v. Jayutilake (1932 A C 260) is that since exercise of the power under Article 229 was not reserved under the Constitution, the same could not be exercised after the first exercise does not hold good in view of the express provision of clause (1) of Article 229. Both under section 309 of the Government of India Act and the Ceylon Legislative Council Order, 1923 which was the subject of consideration in the reported decision, reservation was necessary as otherwise the exercise of the power in the first instance would have meant parting with the power. Here the argument advanced is that the first exercise puts an end to the power and any change in the law made by the President is to be made by the Legislature which has since come into existence. We are unable to accept this argument. This argument is negatived not only by the clear provision of Article 229 but also by the scheme of the Constitu tion. The approach in this Constitution appears to be that so far as the elections whisk are to be held for bringing into existence the first legislatures in the, country, the President will make the laws relating to them and not only such laws will remain in force until the Electoral College contemplated by Article 158 comes into existence but the powers of the President in this regard would also continue until such time. We, therefore find no substance in the first contention of Mr. Hamidul Huq Chowdhury.

The second point urged in this case is that the amendment not being retrospective in operation the petitioner does not come within its mischief. The learned Attorney General has not contested the proposition that the amendment of Article 77 is not retrospective in operation. It appears that wherever it was intended to make the provision retrospective in President's Order No. 39 of 1962 express words were used. To illustrate this we may refer to Articles 3 and 4 of Order No. 39 of 1962. We are, therefore, of the opinion that the amendment of Article 77 of the President's Order No. 4 of 1962 of Order No. 39 of 1962 is c prospective and not retrospective. The further question that remains to be considered even then is whether the petitioner's case is governed by the amended provision. The election in this case was held on the 28th April 1962. 'The corrupt practice oh which the petitioner has been found guilty was committed on the 16th April 1962. The Tribunal gave its decision on the 8th February 1963, and the amendment in question came into force on the 8th December 1962. Mr. Hamidul Huq Chowdhury's argu ment in this connection is that as the amendment imposes an additional penalty on the petitioner it cannot be operative against him as the act in question was committed low; before tits: day when the law was changed. Learned Attorney General does not dispute the proposition that if the amendment is construed to have imposed an additional penalty then the petitioner will not come under its mischief. He has, however, contended that disqualifica tion does not amount to imposition of penalty. In support of his contention Mr. Hamidul Huq has relied upon the decision of the Supreme Court of the United States of America reported as "John A. Cummings v. The State of Missouri in U. S. Supreme Court Report Lawyers' Edition, Volume 18 page 356." In this case the Supreme Court also considered the question of disqualification and whether the same could be imposed with retrospective opera tion. The point that arose for consideration is whether the post facto law imposing certain disqualification in respect of acts which had already taken place was hit by the Constitutional provision of the United States of America which prohibited imposition of penalty with retrospective effect. In delivering the opinion of the Court in this connection Mr. Justice Field, observed as follows:‑---

"Qualifications relate to the fitness or capacity of the party for a, particular pursuit or profession. Webster defines the term to mean any natural endowment or any acquirement which fits a person for a place, office or employment, or enables him to sustain any character, with success'. It is evident from the nature of the pursuits and professions of the parties, placed under disabilities by the Constitution of Missouri, that many of the acts, from the taint of which they must purge themselves, have no possible relation to their fitness for those pursuits and professions. There can be no connection between the fact that Mr. Cummings entered or left the State of Missouri to avoid enrolment or draft in the military service of the United States, and his fitness to teach the doctrines or, administer the sacra ments of his church; nor can a fact of this kind or the ex pression of words of sympathy, with some of the persons drawn into the Rebellion; constitute any evidence of the unfitness of the attorney or counseller to practice his profession, or of the professor to teach the ordinary branches of education, or of the want of business knowledge or business capacity in the manager of a corporation, or in any director or trustee. It is manifest, upon the simple statement of many of the acts and of the professions and pursuits, that there is no such relation between them as to render a denial of the commission of the acts at all appropriate as a condition of allowing the exercise of the professions and pursuits. The oath could not, therefore, have been required as a means of ascertaining whether parties were qualified or not for their respective callings or the trust with which they were charged. It was required, in order to reach the person, not the calling. It was exacted not from any notion that the several acts designature indicated unfitness for the callings, but it was thought that the deserved punishment, and that for am by of them there was no way to inflict punish ment except by depriving the parties who had committed them of some of the rights and privileges of the citizen.

The disabilities created by the Constitution of Missouri must be regarded as penalties they constitute punishment. We do not agree with the counsel of Missouri that to punish one is to deprive him of life, liberty or property, and that to take from him anything less than these is no punishment at all'. The learned counsel does not use these terms life, liberty, and property as comprehending every right known to the law. He does not include under liberty freedom from outrage on the feeling as well as restraints on the person. He does not include under property those estates which one may acquire in profes sions, though they are often the source of the highest emolu ments and honours. The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circums tances attending and the causes of the deprivation determining this fact. Disqualification from office may be punishment, as in cases of conviction upon impeachment. Disqualification from the pursuits of a lawful avocation, or from positions of trust, or from the privilege of appearing in the Courts, or acting as an executor, administrator or guardian, may also, and often has been, imposed as punishment. By Statutes 9 and 10 William III., Chap. 32, if any person educated in or having made a profession of the Christian religion, did, by writing, printing, teaching or advised speaking' deny the truth of the religion, or the Divine authority of the Scriptures, he was for the first offence rendered incapable to hold any office or place of trust; and for the second he was rendered incapable of bringing any action, being guardian, executor, legatee or purchaser of lands, besides being subjected to three years' imprisonment without bail.

By Statute 1 George I., Chap. 13, contempts against the King's title, arising from refusing or neglecting to take certain prescribed oaths, and yet acting in an office or place of trust for which they were required, were punished by incapacity to hold any public office; to prosecute any suit, to be guardian or executor, to take any legacy or deed of gift; and to vote at any election for members of Parliament; and the offender was also subject to a forfeiture of 500 to any one who would sue for the same.

"Some punishments," says Blackstone, consists in exile or banishment, by adjuration of the realm or transportation; others in loss of liberty, by perpetual or temporary imprisonment. Some extend to confiscation, by forfeiture of lands or movables, or both, or of the profits of lands for life; others induce a disability of holding offices or employments, being heirs, executors and the like'.

In France, deprivation or suspension of civil rights or of some of them, and among these of the right of voting, of eligibility to office, of taking part in family councils, of being guardian or trustee, of bearing arms, and of teaching or being employed in a school or semenary of learning, are punishments prescribed by her Code.

The theory upon which our political institutions rest is, that all men have certain inalienable rights that among these are life, liberty and pursuit of happiness; and that in the pursuit of happiness all avocations, all honours all positions, are alike open to everyone, and that in the protection of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined.

Punishment not being, therefore, restricted, as contended by counsel, to the deprivation of life, liberty or property, but also embracing deprivation or suspension of political or civil rights, and the disabilities prescribed by the provisions of the Missouri Constitution being, in effect, punishment, we proceed to consider whether there is any inhibition in the Constitution of the United States against their enforcement."

Mr. Hamidul Huq Chowdhury has also relied on the case, "in the matter of James J. Medley" reported in U. S. Supreme Court Reports Lawyers' Edition, Volume 33, page 835, where solitary confinement was considered to be an additional punish ment of the most important and painful Character and, therefore, it was held that imposition of such punishment with retrospective effect forbidden by the Constitution of the United States of America.

In the present case under the original provision contained in Article 77 of the President's Order No. 4 of 1962, a person could be disqualified form being or being elected as a Member of any assembly if he was convicted of any offence under the said Order. The amendment of this Article made by President's Order No. 39 of 1962, however, added that even if a person was found guilty of any corrupt or illegal practice by a Tribunal under paragraph A of clause (2) of Article 26 of the President's Order No. 13 of 1962 such disqualification could be imposed by the Election Commis sioner. We are of the view that there is much force in the contention of the learned Advocate for the petitioner that th amendment imposed an additional penalty for an act of corrupt or illegal practice, and as the amendment is not 'retrospective in operation, it did not apply to an act of corrupt or illegal practice which had already been committed before the said amendment came into force. In this view of the matter we are of opinion that the Notification No. F/21 (87)/62 ELC issued by the Chief Election Commissioner was done without any lawful authority. We, therefore, make this Rule absolute and declare that the above Notification is of no legal‑effect. We, however, direct the parties to bear their own costs.

I agree.

K. B. A. Rule made absolute.

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