Find a Lawyer

Civil Appeal No. 39‑D of 1963, decided on 7th December 1964.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 9th April 1963, in Writ Petition No. 177 of 1963).

(a) Interpretation of Statutes ‑--

(Constitutional instrument) Effect to be given to every part and every word of Constitution "Whole instrument" to be considered while ascertaining true intent and meaning of particular provision.

An elementary rule of construction of constitutional instruments is that effect should be given to every part and every word of the Constitution. Further, in construing constitutional provisions it is the duty of the Courts to consider the whole instrument for ascertaining the true intent and meaning of any particular provision.

(b) National and Provincial Assemblies (First Elections) Order (4 of 1962)‑

Order not confined to "very first election"‑National and Provincial Assemblies (First Elections) Order (4 of 1962), preamble and Art. 81, read with Art. 230, Constitution of Pakistan (1962).

Held, that Article 81 in Chapter VIII of the National and Provincial Assemblies (First Elections) Order, 1962 provides for a Bye‑election. The fact that this Order is not confined to the very first election is therefore patently obvious from the provisions of the Order.

Moreover, Article 230 of the Constitution (1962), provides that the life of the first Assembly will be for a term of 3 years from the day on which the first meeting of that Assembly, is held'. Reading this Article with the preamble of Order 4 of 1962; namely, that it is necessary to provide for the conduct of the aforesaid elections and for matters ancillary thereto or connected therewith' one cannot escape the conclusion that Order No. 4 was not confined to the very first election.

(c) National and Provincial Assemblies (First Elections) Older (4 of 1962),

Art. 76‑Intra vires the President tinder Art. 229 (8), Constitution of Pakistan (1962)‑President competent to add further disqualification to those mentioned in Art. 103, Constitution of Pakistan (1962)‑Woman member of Assembly marrying a person in service of Pakistan no longer remains such member‑Article 224(3), Constitution of Pakistan (1962), not applicable while considering vires of Art. 76, National and Provincial Assemblies (First Elections) Order (4 of 1962).

The intent of clause (8) of Art. 229, Constitution of Pakistan. (1962), was to give power to the President to make provisions with respect to elections before constitution of the Electoral College.

By Article 76 of President's Order No. 4 of 1962 a further disqualification to those already mentioned in Article 103 of the Constitution was added. This therefore, involves no inconsistency With the concept underlying the Constitution.

Held that the President in promulgating Article 76 acted within the scope of his Constitutional powers.

[By virtue of Art. 76, National and Provincial Assemblies (First Elections) Order, (1962), a woman member of Provincial Assembly marrying a person in service of Pakistan no longer remains such member.]

Article 224(3), Constitution of Pakistan (1962) has no application to the exercise of powers by the President conferred upon him by Art. 229(8), Constitution of Pakistan (1962).

S. R. Pal Senior Advocate Supreme Court instructed by Shahabuddin Ahmad Senior Attorney for Appellant.

A. B. Mahmud Hussain Advocate‑General East Pakistan (T. H. Khan Advocate Supreme

Court with him) instructed by A. W. Mallik Attorney for Respondent No. 1.

Respondent No. 2 : Ex parte.

Date of hearing: 7th December 1964.

This certificated appeal from a judgment of the High Court of East Pakistan at Dacca raises the question of the vices of Article 76 of the President's Order No. 4 of 1962.

The appellant Begum Shamsunnehar was elected as a Member of the Provincial Assembly of East Pakistan on 27th May 1962 and sometime thereafter she was married to Mr. Ali Ahmad, Commissioner, Khulna Division. As under Article 76 of the President's Order No. 4 of 1962 the wife of a person in the service of Pakistan is disqualified from being elected as a Member of the Assembly, the Speaker of the Assembly referred the matter to the Chief Election Commissioner in accordance with clause (2) of Article 104 of the Constitution. The Commissioner ruled that the appellant had become disqualified to continue as a member of the Assembly by reason of her marriage to .a person who was in the service of Pakistan. Thereupon the Speaker issued a Notification dated 26th March 1963, in the Dacca Gazette declaring "that the said Begum Shamsunnehar is not a member of the Assembly". She then moved the High Court under Article 98 of the Constitution for a writ calling upon the respondents to cancel or withdraw the said notification.

The main contentions of the appellant before the High Court were firstly that Article 76 of the President's Order No. 4 of 1962, was limited to the holding of the first Election and secondly that the President acted beyond his constitutional powers by prescribing a further disqualification in the said Article. 76 in addition to those already specified in Article 103 of the Constitution, The High Court repelled the above contention and dismissed the petition.

The appellant now seeks to challenge the correctness of the decision of the High Court upon substantially the same grounds that were urged before the High Court.

Mr. S. R. Pal, the learned Advocate for the appellant has contended that the disqualification mentioned in Article 76 of the President's Order contemplated the very first election and could have no effect in relation to events which took place after the first election. In support of his contention he has relied on the expression for the holding of first elections to the National Assembly and each Provincial Assembly' occurring in the preamble of the Order. He has also drawn our attention to the fact that this Order is called The National and Provincial Assemblies (First Elections) Order, 1962'. The question which is posed by this argument is whether its provision can apply to a bye‑election or not.

Now an elementary rule of construction of constitutional instruments is that effect should be given to every part and every word of the Constitution. Further in construing constitutional provisions it is the duty of the Courts to consider the whole instrument for ascertaining the true intent and meaning of any particular provision.

President's Order No. 4 of 1962 consists of 8 Chapters dealing with various subjects such as preparation of Electors' List, Conduct of Elections, Meetings, Election Expenses, Offences, Penalty and Procedure and Disqualifications, etc.

Article 81 in Chapter VIII provides for Bye‑election. Thus the fact that this Order is not confined to tire very first election is patently obvious from the provisions of the Order.

In this connection reference may also be made to Article 23 of the Constitution which provides that the life of the first Assembly will be for a term of 3 years from the day on which the first meeting of that Assembly is held'. Reading this Article with the preamble of Order 4 of 1962 which sets out in clear terms that it is necessary to provide for the conduct of the aforesaid elections and for matters ancillary thereto or connected therewith' one cannot escape the conclusion that the above Order No. 4 was not confined to the very first election.

We are therefore, not prepared to impute such an absurd intention to the framer of the Constitution as suggested by the learned counsel.

The next question is: Whether there was power in the President to make this order.

Mr. Pal has challenged the power of the President to add to the disqualifications already mentioned in Article 103 of the Constitution. He has contended that Article 224(3) of the Constitution could not be called to in aid because there was no express statement in the Order that it was promulgated for the purpose of removing any difficulties in the way of bringing the Constitution or any of its provisions into operation.

The preamble in clear terms says that this Order was made by the President in exercise of the power under clause (8) of Article 229 to make provisions with respect to elections as under the Constitution is permitted or required to be made by law.

Clause (8) of Article 229 says:

"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 "

Clause (1) of the said Article provides that:

"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."

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.

By Article 76 of the President's Order No. 4 of 1962 a further disqualification to those already mentioned in Articles 103 of the Constitution was added. This therefore, involves no inconsistency with the concept underlying the Constitution.

It is thus clear that the President in promulgating Article 76 acted within the scope of his Constitutional powers.

In conclusion we may observe that in view of the cleat provision in clauses (I) and (8) of Article 229 empowering the President to make provision for election, the learned counsel was compelled to concede that Article 224(3) had no application to the present case.

For the reasons stated above we dismiss this appeal with costs.

A. H. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.