SYED JAMSHED All, J. -- On 1.12.2004, we had' announced short order disposing of Writ Petitions No.
(i) 18577 of 2004,
(ii) 18652 of 2004.
(iii) 18629 of 2004.
(iv) 18578 of 2004.
(v) 18579 of 2004.
(vi) 3858 of 2004 (BWP).
(vii) 18658 of 2004,
(viii) 18866 of2004.
(ix) 18841 of 2004 and
(x) 18865 of 2004.
After hearing the parties at length we had reached the following conclusions;-
(i) The Legal Practitioners and Bar Councils Amendment Ordinance (No. III), of 2004 is not ultravires of any provision of the Constitution.
(ii) The substituted sub-section 2 of section 5 is applicable to the elections to the Punjab Bar Council scheduled for 20.12.2004.
(iii) Those petitioners who had duly been nominated as contesting candidates for the 2004 elections to the Punjab Bar Council before promulgation of Ordinance No. III of 2004 are entitled to contest the forthcoming elections and the amendment raising' the eligibility threshold to contest the said elections from 7 to 10 years is not applicable to their extent, It is accordingly directed that their names shall be included in the list of the contesting candidates to the forthcoming Punjab Bar Council elections, It is clarified that the list of the nominated candidates formulated as a result of revised schedule shall stand modified to the extent indicated above.
Through this judgment the detailed reasons for reaching the aforesaid conclusions are being recorded.
3. The Bar Council for Pakistan and the Provincial Bar Councils are created and constituted under the Legal Practitioners & Bar Councils Act (No. XXXV of 1973). Section 5 of the aforesaid Act provides for composition of Provincial Bar Councils. The constituency for the elections to the Provincial Bar Councils was the Divisional Rolls of Advocates maintained by the Provincial Bar Councils. The method to work out the number of seats for membership of the Provincial Bar Councils was also provided by section 5 in terms that there shall be one elected member from each district of fifty Advocates on the Divisional Rolls of a district and one member for every three hundred Advocates if the number of Advocates from a District exceeded three hundred. Section 5-A provided the following qualification for membership of a Provincial Bar Council:
(a) a candidate should be on the rolls maintained by the Provincial Bar Council;
(b) has, on the day of filing of nomination paper been an Advocate for not less than seven years; and (c.) has cleared all the dues payable by him to the Provincial Bar Councils.
4. Section 7 of the said Act provides for holding of election to the Provincial Bar Councils so as to conclude on or before the thirtieth day of November in the year in which the term of the Provincial Bar Council expires.
5. The manner of conduct of the election has been prescribed in the Pakistan legal Practitioners & Bar Councils Rules, 1976. Rule 3(1) of the said rules defines the Returning Officer who is the Advocate-General of the Province in relation to election to the Provincial Bar Councils and in his absence the Additional Advocate-General in order of seniority and where there is no Additional Advocate- General an Assistant Advocate-General in the order of seniority.
6. Pursuant to the mandate of section 7 of the Act, the Returning Officer issued a schedule on 29.9.2004 for election to the Punjab Bar Council. The nomination papers were scrutinized on 29.10.2004 and a list of contesting candidates was published on 1.11.2004. The date of polling, according to the said schedule was 30.11.2004.
7. On 3.11.2004, the Legal Practitioners & Bar Councils Amendment Ordinance (No. III of 2004) was promulgated. Some amendments were made in section 2 of the Act i.e. The definition clause, section 5, section 5-A, section 9 and the Schedule under section 5 (2)(b) of the Act. The challenge in this petition is to the amendments made in sections 5 and 5-A. Sub-section (2) of section 5 was substituted and instead of the formula of the seats to be worked out on the basis of the strength of enrolled Advocates, the number of seats for membership of the Punjab Bar Council was fixed at 75.
The substituted subsection (2) of section 5 also provides that the district wise allocation of seats for respective Provincial Bar Councils shall be in accordance with the schedule. Further, a seat of the Provincial Bar Council shall not be increased in future on the basis of increase in number of the Advocates of respective Provincial Bar Councils and seats allocated to a new district shall be drawn from the district out of which it was carved out. Sub-section (2-A) of section 5 was substituted according to which the Advocate entered on the roll of group of districts as mentioned in the schedule shall constitute the electoral college Sub-section (3) of section 5 was omitted and in sub-section (4) instead of the word "division" the word district or as the case may be group of districts" was substituted. Section 5-A was amended by enhancing the qualification that a person contesting the election should be on the roll of Advocates of High Court maintained by the Provincial Bar Council, In clause (b) of section 5-A instead of seven years, ten years was substituted.
8. There are primarily three grievances in these petitions. Firstly that the seats for Punjab Bar Council have been reduced, secondly, the qualification for candidates has been enhanced as an advocate of High and thirdly instead of seven years, ten years standing has been prescribed.
9. On 6.11.2004, the Returning Officer issued a revised notification on the basis of the aforesaid Ordinance by which the nomination papers were required to be submitted within seven days (upto 13.11.2004). 18.11.2004 was the date fixed for the scrutiny, final list of the contesting candidates was to be published on 20.11.2004 and the polls were scheduled to be held on 18.12.2004. The effect of the notification was that the proceedings earlier taken under the election schedule announced on 29.9.2004 stood nullified.
10. Writ petitions at serial Nos. (i) to (vii) are by the candidates who had filed nomination papers on the basis of the schedule issued on 29.9.2004. In Writ Petitions at serials No. (viii) to (x) the petitioners are not personally affected by the amending Ordinance but are aggrieved of the reduction of seats for the Punjab Bar Council and enhancement of qualifications for contesting the election. The petitioners in first seven cases essentially seek tile relief of being permitted to contest the election on the basis of their nomination which stood perfected before promulgation of Ordinance No. III of 2004. However, in all the petitions the validity the amending Ordinance and the notification dated 6.11.2004 giving out a revised schedule for the election to the Punjab Bar Council have been questioned on a number of grounds which are being noted hereunder.
11. Mr. A.K. Dogar, Ch. Mohammad Arif Mr. Afzal Ali Haider, Mr. Mubeen-ud-Din Qazi, Dr. Hameed Ahmad Ayyaz, Mr. Tariq Aziz, Riaz and Hanif Rahi and Ch. Naseer Ahmad Bhutta, Advocates made submissions in support of these petitions. The validity of the Ordinance has been challenged on the ground that while the National Assembly has been in a Session upto 27.10.2004, the Senate was in Session upto 3.11.2004 was prorogued on 3.11.2004 and, therefore, there was no urgency to satisfy the conditions laid down by Article 89 of the Constitution. Mr. A.K. Dogar, Advocate emphasized that the expression "necessary to. Take immediate action" in Article 89 refers to a physical necessity and unavoidable, inescapable and inevitable circumstances from the standpoint of reason.
According to him the word "necessary" was interchangeable with the word "necessity" so as to make lawful which is not otherwise lawful. He referred to the Black's Law Dictionary in support of the definition of "necessity" and contended that it will be for the respondents to demonstrate that the situation was emergent as to justify issuance of the impugned Ordinance. Definition of "immediate action" from Black's Law Dictionary was also cited. Reliance was placed on Sardar Faruq Ahmad Khan Leghari and others Vs. Federation of Pakistan and others (P.L.D 1999 SC 57) to contend that the satisfaction of the President was justiciable. He also submitted that an Act of the Parliament, which is framed by the chosen representatives should have precedence over an Ordinance. He further submits that associations and unions can be formed under Article 17 (1) of the Constitution and therefore, this right could not be restricted or curtailed by an Ordinance except in accordance with Article 17 under which reasonable restrictions could be imposed by law in the interest of sovereignty, integrity of Pakistan, public order or morality. He explained that the Punjab Bar Council was a statutory body created by virtue of Act XXXV of 1973 and those who fulfilled the eligibility threshold to contest election could not have been ousted by virtue of the amending provision. He contends that a statute which is not merely procedural but touches upon and affects the existing rights could not be applied with retrospective effect. Article 264 of the Constitution and section 6 of the General Clauses Act were referred to. Reliance was placed on M. Asad Ali and others Vs. Federation of Pakistan through Secretary Law, Justice and Parliament Affairs. Islamabad and others (P.L.D 1998 SC 161). He also contended that the Ordinance was mala fide inasmuch as that the matter had been referred to the Federal Government about to years back and a Standing Committee of the Pakistan Senate was considering suitable amendments in Act XXXV of 1973.
12. Mr. Arif Chaudhry. Advocate however contended that he will confine his challenge to the action taken by the Returning Officer under the amended Ordinance so as to oust the already duly nominated candidates. His contention, was that the learned Returning Officer assumed the Ordinance to be retrospective whereas it was not. He placed reliance on Smt. Indira Nehru Gandhi Vs. Shri Raj Narain (A.I.R 1975 SC 2299), His Holiness Keshvananda Bharati Sripadagalvaru and others Vs. State of Kerala and another (AIR 1973 SC 1461), Shankari Prasad Singh Deo and others vs. The Union of India and others (AIR 1951 SC 458) and Javed Jabbar and 14 others Vs. Federation of Pakistan and others (PLD 2003 SC 955).
13. Mr. Riaz Hanif Rahi, Advocate, who appeared in person besides questioning the application of the amended provisions to the already nominated candidates, was also critical of the Constitution of the Bench. He had filed this petition at the Bahawalpur Bench and a learned Single Judge vide order dated 11.11.2004, had admitted the petition to regular hearing. According to him, that learned Judge should have been on the Bench. He submitted that election to the Provincial Bar Council of N.W.F.P had already been held under the unamended Act No. XXXV of 1973 and, therefore, as far as the Provincial Bar Council of Punjab is concerned, -it could not be differently treated. According to him, reduction of the seats of the Punjab Bar Council will ultimately affect the election to the Pakistan Bar Council. He maintained that according to the unamended law 150 candidates were nominated but by virtue of applying the amended provisions the number of seats stands reduced to 75 but there has not been any notification reducing the number of seats. Another contention raised by him was that according to section 7 of the Act the date of election has been fixed as 30th November, 2004 and, therefore, the revised schedule for holding the election on 18.12.2004 is otherwise ultravires of the said section. He maintained that once the Returning Officer had issued the schedule on 29.9;2004 under section 5, his power stood exhausted and, therefore, he had no authority to issue the revised schedule. He also. Contended that for the fresh schedule permission of the Punjab Bar Council was necessary. He also contended that in any case the amended provision of the Ordinance could not be so applied to affect the existing right of the petitioner to contest the election as a duly nominated candidate. Reliance was placed on Muhammad Ishaq Vs. The State (P.L.D 1956 SC (Pak) 256), Malik Gul Hasan & CO. And 5 others Vs. Allied Bank of Pakistan)
(1996 S.C.M.R 237), Secretary to the Government of Punjab Housing Physical and Environmental Planning Department Lahore Versus Mehr Muhammad Amin, Advocate and to others (1997 S.C.J 779), Federal Bank for Co-Operatives. Islamabad Us. Ehsan Muhammad (2004 SCJ 626), (PLD 1969 S.C 786) and The University of Dacca through its Vice Chancellor and (2) The Registrar. University of Dacca Versus Zakir Ahmed (PLD 1965 S.C 90).
14. Mr. Sarfraz Hussain, Advocate, who had applied to become party to Writ Petition No. 18658 of 2004 was also heard. Dr. Hameed Ahmed Ayaz, Advocate, who is himself a duly nominated candidate, was critical of the reduction of the number of seats, He questioned the conduct of the Returning Officer in filing I.C.A No. 544 of 2004. He submitted that the learned Advocate-General is the representative of the Government ex-officio, Chairman, Punjab Bar Council, and he should conduct himself in such a manner so as not to give any impression that he was partisan. He maintains that in the absence of any express words or clear intendment of the legislature that the amending Ordinance was retrospective the learned Returning Officer could not have issued the revised schedule. He contended that section 5 of the Act prescribed the formula for determination of the seats while the amended provision fixes the number of seats with a rider that a seat will not be increased in future. According to him, the amendment was arbitrary and unreasonable on the face of it. He went to the extent of submitting that the amending Ordinance could be examined on the touchstone of reasonableness. His next contention was that by virtue of the amended section 5-A, only the Advocates of High Court are entitled to contest the election thereby the Advocates of subordinate Courts have completely been eliminated, which brings about unfair discrimination. He also questioned allocation of seats to the districts and contended that at places like Chaghi, Kot Abdullah, Lasbela, Qilla Saif Ullah there is no legal community but still these districts have been allocated seats. He also referred to the election to the Provincial Bar Council of N.W.F.P. Reliance was placed on Hakim Ali Zardari vs. State and another (PLJ 1998 SC 658), Muhammad Bachai Vs. Deputy Rehabilitation Commissioner, Hyderabad and others (PLD 1962 WP) Karachi 889) and Ch. Sir Muhammad Zafrullah Khan and three others Vs. The Custodian of Evacuee Property West Pakistan and others (PLD 1964 SC 865).
15. Mr. Naseer Ahmad Bhutta, Advocate contended that reduction of the seats will adversely affect the strength of the Punjab Bar Council and curtailment of representation of the Punjab Bar Council is arbitrary and discriminatory.
16. We wanted to hear the learned Attorney- General for Pakistan but we were informed by Mr. Danishwar Malik, the learned Deputy Attorney General, that the learned Attorney-General is not in the country. He also stated that he had written instructions to make submissions. He contended that an Ordinance and an Act of Parliament are synonymous and the same principles apply to examine the validity of an Ordinance which are applicable to an Act of the Parliament. He submits that the satisfaction as to the existence of the circumstances requiring immediate legislation by way of an Ordinance is subjective the courts cannot put it to the test of objectivity and is, therefore, not justiciable. He further submits that no law can be struck down on the alleged ground of mala fide or that it was unreasonable. Reliance was placed on Mehr Zulfiqar Ali Babu and others Vs. Government of the Punjab and others (PLD 1997 SC 11), Pir Sabir Shah Vs. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P, and another (PLD 1995 SC 66), Fouji Foundation and another Versus Shamimur Rehman (PLD 1983 SC 457) and Sardar Faruq Ahmad Khan Leghari and others Versus Federation of Pakistan and others (PLD 1999 SC 57). He next submits that the legislation could be retrospective as was spelt out by the intention of the amending Ordinance. He referred to subsection (3) of section 1 of the amending Ordinance according to which provision of the said Ordinance shall have effect notwithstanding anything contained in any other law or rules for the time being in force. He submits that according to the accepted principles of interpretation all efforts have to be made to make a law workable so as to save it rather than to destroy it.
According to him the amendments made in the Act were based on the recommendations of the Pakistan Bar Council. He also submitted that the dictum in .Javed Jabbar's case supra relied upon by the petitioners is not applicable. He further contended that Undisputedly on 3.11.2004 the National Assembly was not in session and since the elections had been announced for 30.11.2004 it necessitated promulgation of the impugned Ordinance to give effect to the recommendations of the Pakistan Bar Council and thus, the conditions of Article 89 were duly satisfied. He maintained that in any case, the satisfaction as to the circumstances contemplated by the said Article is immune from judicial scrutiny. Apart from relying on the case of Zulfiquar Ali Babu, Shamim-ur- Rehman and Pir Sabir Shah supra he also referred to Haji Ghulam Rasool and others Vs. The Chief Administrative of Auqaf West Pakistan (PLD 1971 SC 376) He also contends that the Courts could not go behind the intention of the legislature. Reliance was placed on Molasses Trading & Export (Pvt.)
Limited Vs. Federation of Pakistan and others (1993 SCM R 1905) .His next limb of submission was that the effect of the amending Ordinance was the repeal of the substituted provisions of the Act which was within the competence of the legislature. He also contended that Article 17 of the Constitution was not applicable to the election of a statutory body and, therefore, no violation of any fundamental right of the petitioners is involved.
17. Mr. Muhammad Hanif Khatana, Addl. Advocate-General, contended that the constituency contemplated by the Act was the rolls prepared on the basis of revenue divisions. However, by virtue of Punjab Land Revenue Act Amendment Ordinance XLV of 2001, section 5 of the said Act was amended, the revenue divisions were abolished and since the constituency was not in existence, no election was possible. Therefore, a number of districts were pooled in groups to create the constituency necessitating the Ordinance and the revised schedule of election. He brought to our notice and placed on record the minutes of the meeting of the Law Reforms Executive Committee of the Pakistan Bar Council held on 31.5.20O2 in which inter alia the representatives of the Provincial Bar Councils had participated and the to impugned amendments i.e. Fixing the number of seats for the Punjab Bar Council at 75 and enhancing the qualifications to contest the election were duly recommended. He explained that in the previous election there were 101 seats for the Punjab Bar Council and in accordance with the formula given in original section 5 of the Act the number of seats had risen to 150 which was unmanageable involving huge expenditure. According to him there were 28 committees of the Punjab Bar Council and the expenditure on TA/DA alone during the previous term was Rs. 2.46 crore. He submitted that the savings in the expenditure would be available to be spent for the welfare of the members of the legal community. He submits that the justification to enhance the qualification was to maintain the standard of representation of the Punjab Bar Council and in the resolution dated 9.11.2004 of the Pakistan Bar Council inter alia the impugned amendments were affirmed. He explained that the members of the Enrolment Committee and Disciplinary Committee of the Punjab Bar Council should be Advocates of this Court to decide the matters of' enrolment and discipline of the Advocates. A member who is not enrolled as an Advocate of the High Court cannot properly discharge the said function.
Distinguishing the case of Javed Jabbar supra his contention was that the basis of the said judgment was the plea of discrimination and the right in the said case to contest the election had its roots in the Constitutional provisions, which cannot be equated with a right to contest the election of a statutory body created by a subordinate legislation.
18. The submissions made by the learned counsel for the parties have been considered. The grounds to assail Ordinance III of 2004 are summarized as under:-
(a) The conditions of Articles 89 of the Constitution were not satisfied and that it was justice- able.
(b) An Act of the Parliament is to be preferred to an Ordinance.
(c) The said Ordinance was mala fide.
(d) Enhancement of standing at the bar from 7 to 10 years, reduction of seats for the Punjab Bar Council and ousting the Advocates of subordinate Courts from contesting the election are arbitrary, discriminatory and are therefore, hit by Articles 17 and 25 of the Constitution.
(e) Holding the election to the N.W.F.P Bar Council under the unamended law results in discrimination.
19. As-far as the first three grounds are concerned none has merit There is a chain of precedent cases that promulgation of an Ordinance under the Constitution is a legislative act and an Ordinance and an Act of the Parliament stand at the same footing. As far as the plea of the mala fide is concerned, it is not available against a legislative' act. The sole judge of existence of circumstances rendering it necessary to take immediate action under Article 89 of the Constitution is the President and it lies within his subjective satisfaction, It is, therefore, beyond the reach of the Court in exercise of Constitutional jurisdiction. The first judgment on the question to be noted is a Full Bench judgment of this Court in the matter of Syed Akhlaque Hussain Advocate (PLD 1965 (WP)
Lah. 147). This Court relied on the observations of the Privy Council in the case of Bendoari Lal Sharma (72 1A 57) and held that satisfaction of the President was essentially subjective and the vires of an Ordinance could not be attacked on that ground. The other case to be noted is the case of Fouji Foundation and another supra in which the above said principle was reiterated. The following observations illustrate the principle: "Pard 72." From the review of cases it becomes abundantly clear that both in America and England, the Courts refrain from exercising an inquiry into the motives of the legislation and the same legal position obtains here because of the inherent limitation on the judicial power not to encroach upon the legislative field. If an inquiry involving proof is outside its scope then how can a presumption be drawn and that to one of fact such as malice."
"Para 89." The legal justification for issuing a legislative instrument is a matter solely within the competence of Legislature or the law-giver. It is not one which can be judicially reviewed as will appear from the discussion which follows elsewhere in the judgment.
"Para 136" In conclusion and for all the reasons hereinbefore given, I am of the view that neither mala fides has any nexus with the legislative power nor there is any distinction between an Act and a legislative measure promulgated by an individual in whom the power is reposed. The contention of the counsel for the appellants, accordingly succeeds. I have deliberately examined the legality of the contention because the High Court had given a finding which had to be dealt with despite the reason that on facts, I had earlier concluded that personal malice was not established.
In para 347 of the said judgment it was further observed;- "The past and closed transactions have a Constitutional protection. Accordingly, it is not open to the respondent to challenge the effect of the repeal., The High Court seems to have got over the repeal of these legislative instruments by holding that as they were enacted mala fide they were void and .The first appellant acquired no right in the Mill from its inception. This assumption is wholly erroneous as no mala fides can be pleaded against a statute and for that reason it cannot be regarded as being void"
20. The aforesaid principles were' reiterated in the case of Pir Sabir Shah supra in the following words:- "A legislative act is distinguished from an executive action with, reference to the power of a superior Court to examine its validity in exercise of its power of judicial review. A legislative act cannot be struck down by a superior Court on the grounds of mala fides, or lack of bona fides or non- application of mind in exercise of such power.
It was further observed that ;- The Ordinance promulgated by the President can be attacked only on the ground of being repugnant, either to the fundamental rights or any of the provisions of the Constitution of 1973. I am, therefore, of the view that the power of the President to promulgate an Ordinance conferred under Article 89 of the Constitution of 1973 is a legislative power and not an executive fiat".
21. Reference may also be made to the following observations of the Hon'ble Supreme Court in the case of Mehr Zulfiqar Ali Babu and others supra:-- "From the review of the above case-law, it is evident that the Court is not at liberty to inquire into the motives or mala fide @ the part of the Legislature. Once a statute is competently made, the Court is not entitled to question the wisdom or fairness of the Legislature. Nor the Court can refuse to enforce a law competently made on the ground that the result would - be to nullify its own judgment".
22. The observations of the Hon'ble Supreme Court in para 20 of Mehr Zulfiqar Ali Babu may also be noted:-- "From the above celebrated treaties on the construction of statutes, it is patent that the primary source to ascertain the legislative intent is the language employed in the statute itself. If the legislative intent be clear, plain, unequivocal and capable of only one meaning, it is not permissible to have resort to the materials aliened i.e. Outside the statute involved, In such a case, the Court cannot decline to enforce a provision of a statute on the ground that it is harsh, or absurd, or contrary to. Common sense. The Court must give effect to it whatever may be the consequences."
23. The Petitioners had relied on the case of Faruq Ahmad Khan Leghari to contend that the satisfaction of the President as to the circumstances justifying immediate legislation was justice- able. The rule laid down therein is not attracted for the reason that the observations therein were relatable to the powers of the court to review an action taken under Article 232(1) and 233(1) of the Constitution. The action taken by the President under the aforesaid provisions is an executive act and not a legislative act. Our conclusion, therefore, is that the amending Ordinance could not be assailed on the ground of mala fides, unreasonableness or that conditions of Article 89 were not satisfied.
24. As far as the plea based on infraction of Articles 17 and 25 of the Constitution is concerned, it will be necessary to first examine the nature of the right to elect and to be elected to the Punjab Bar Council. The petitioners have vehemently relied on the observations in the case of Javed Jabbar supra that right to contest an election is a fundamental right. These observations were made in connection with election to the Pakistan Senate and the basis was Sub-Article 2 of Article 17 of the Constitution whereby every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party and that right to be a member of a political party includes right to contest an election. Elections to the Parliament are rooted in a number of provisions of the Constitution such as Articles 50, 59, 62, 63, 63-A, 218, 222, 224 and 226. However, it may be observed that Article 17 of the Constitution does not contemplate that right to contest an election to a statutory body created by the statute itself will be a fundamental right. The nature of such a right was explained in the case of Bidhu Bhusan Bagchi and another Vs. The State of West Bengal (AIR 1952 Calcutta 901) which involved super-cession of the District Board of Murshadabad by the Government. Article 19(c) of the Indian Constitution which is in parimateria to Article 17 of our Constitution was pressed in support of the contention that the action was unconstitutional. The challenge was repelled with the following observations:-- In the first place, Article 19 (1)(c) which speaks of the right of a citizen to form associations or unions refers to the ordinary right which is enjoyed by all citizens, It has no reference to a right which is conferred by a particular statute to act as members of a body which is the creation of the statute itself."
25. In the case of Hindu rao Balwant Patil and other Vs. Krishna rao Parshuram Patil and others (AIR 1982 Bombay 216) a no confidence motion against the Chairman and Vice-Chairman of a Co- operative Society was involved. The following observations reiterate the principle laid down in the above noted Calcutta Case:-- "So far as the contentions raised by Shri Paranjape based on the provisions of Art. 19 (1)(c) of the Constitution are concerned, it is not possible for us to accept any of these contentions, In substance it is contended by Shri Paranjape that a person who has a right to form an association and to elect the office bearers has a component right to remove them in case of loss of confidence. As already observed, the right to contest the election and the right to move for setting aside an election or right to recall the person already elected are not common law rights. These rights must be conferred by the statute and therefore can be enforced only in accordance with and subject to the conditions laid down therein by the statute concerned. The right guaranteed by Art. 19(1)(c) is a fundamental right common to all citizens, It is a right which can be enjoyed by all and every body. This has no reference to the right conferred or created by a particular statute."
26. The nature of the right to elect came under consideration of Supreme Court of India in Jyoti Basu and others Versus Debi Ghosal and others (AIR 1982 SC 983) and the following observations were made;- "A right to elect fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right, It is pure and simple, a statutory right. So is the right to be t, elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation."
27. The Bar Councils are the creation of the statute and right to elect or to be elected is the creation of the statute. Article 17 of the Constitution does not refer to a statutory right to elect or to be elected. Therefore, the right to elect and to be elected to the Bar Councils being a creation of the statute could be lawfully regulated by the Statute. A salient feature of this case is that the impugned Ordinance was promulgated on the basis of the recommendations of the Pakistan Bar Council, which is duly represented by the Provincial Bar Councils. Therefore, the impugned amending Ordinance is not violative of Article 17 of the Constitution.
28. As far as the plea of discrimination is concerned, enhancement of the qualifications as an Advocate of this Court and the standing from 7 to 10 years only regulates the right to be elected.
The qualifications were laid down by Act XXXV of 1973 and could, therefore, be lawfully altered by the legislature. Likewise, the electorate had no vested right to the number of seats for which election to the Punjab Bar Council is to be held. Therefore, the amending Ordinance is not ultra vires of Article 25 of the Constitution. Reference to the election to the N.W.F.P Bar ,Council under the old law is out of place as the impugned Ordinance could not be struck down on this ground.
29. As far as the petitioners in the first seven cases are concerned, the question left to be determined is whether the amended section 5-A enhancing the qualification from 7 to 10 years standing could be applied to them so as to give retrospective effect to the impugned Ordinance.
Our answer to this question is in the negative for the reasons to follow.
30. The revised schedule issued on 6.11.2004 by the learned Returning Officer had the effect of nullifying the valid nominations of the said petitioners. The amendment made by Ordinance III of 2004 have become part of the Act itself but even in the scheme of the entire aforesaid. Act there is no provision for nullifying a valid nomination already made. Right to be elected is the creation of Act XXXV of 1973 and as a result of acceptance of the nomination papers and publication of the list of the contesting candidates, the right of the said petitioners to contest the election stood perfected and that right could not be taken away except by express words or unequivocal intendment of the legislature which we were unable to find in section 1 (3) of amending Ordinance relied upon by the learned Deputy Attorney- General. It may also be noted that in case of doubt, it has to be resolved against retrospectivity to save the existing rights.
31. The legal proposition that the legislature could legislate retrospectively even to take away the existing rights is not open to any controversy. However, the question whether a statute is to be applied retrospectively or prospectively has been subject matter of considerable debate in a large number of cases. The consensus is that a legislative measure which is a matter, of procedure alone operates retrospectively so as to be applied to the pending matters but it is not the case if it takes away or affects an existing right. The first case to be noted is Muhammad Ishaq supra, which was based on the observations of the Privy Council as noted therein. Adnan Afzal Vs. Capt. Sher Afzal (PLD 1969 S.C 187) explains as to what are the matters of procedure in the following words:-- "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford to takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus, a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only.
Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not' even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute.
On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of tile parties concerned, the courts would favourably incline towards giving effect to such procedural statutes retroactively."
32. Similar view was taken in Malik Asad Ali and others Vs. Federation of Pakistan through Secretary.
Law. Justice and Parliament Affairs. Islamabad and others (PLD 1998 SC 161), Hakim Ali Zardari Vs. State and another (PLJ 1998 SC 658) and Mir Abdul Bagi Vs. The Government of Pakistan through the Cabinet Secretary, Rawalpindi and five others (PLD 1968 SC 313). Applying the aforesaid test, we are of the view that after having been validly nominated, the petitioners in the first seven cases had a vested right to contest tile election to the Punjab Bar Council and the amended section 5-A(b) of Act (XXXV of 1973) does not apply to their case.
33. For what has been stated above, the first seven writ petitions are allowed. The names of the petitioners shall be included in the list of contesting candidates for the forthcoming election to the Punjab Bar Council. Petitions at serial Nos. (viii) to (x) are dismissed not only on the basis of our findings that the amending Ordinance is not ultra vires of any provision of the Constitution but also on the ground that the petitioners therein are not persons aggrieved to maintain these petition.