' ANWAR ZAHEER JAMALI, J.<-~This civil petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution"), is directed against the order dated 12.9.2012, in I.C.A' No. 525-W/2012 (Re: Shahid Orkzai versus Pakistan, etc.) passed by the learned Division Bench of Islamabad High Court, Islamabad, whereby said ICA was dismissed and accordingly the earlier order dated 17.8.2012:, dismissing writ petition No. 2646/2012, passed by a learned single Judge in chambers, impugned therein, was maintained.
2. In brief, relevant facts of the case are that on the petitioner invoked the jurisdiction .Of the Islamabad High Court under Article 199 of the Constitution for challenging the nomination and appointment of Chief Election Commissioner of Pakistan/respondent No. 2, being ultra vires to the Constitution. Such challenge was premised on violation/negation of Articles 179, 216(2), 207(2) and 2130) of the Constitution as well as on other grounds that, according to the petitioner, a person, who earlier remained Governor of some Province or had political affiliations with some party,, could not have been so appointed in terms of" Article 213 of the Constitution.
2. On 17.8.2012, when said writ petition came up for hearing before a learned single Judge of Islamabad. High Court, it was dismissed for the reasons incorporated in para-3 of the order dated 17.8.2012, which reads as under:-- "3. It was not disputed that the respondent No. 2 was appointed as Chief Election Commissioner keeping in view the Constitutional provisions ' embodied in Part VHI with particular reference to Chapter I of the Constitution: No Constitutional provision was referred to by. The petitioner whereunder the appointment of the respondent No. 2 as Chief Election Commissioner could be viewed as violative of the Constitution. "
3. Aggrieved by the above order, on 3.9.2012, I.C.A No. 525-W/2012, was filed by the petitioner .Before the Islamabad High Count,' which was heard and dismissed in limine vide impugned order dated 12.9.2012, for the reason that the learned Division Bench did not find any legal force in any of the contentions raised before it-by the petitioner with reference to purported disqualifications of respondent No. 2 to be appointed as Chief Election Commissioner of Pakistan by the President of Pakistan.
4. Mr. Shahid Orakzai, who appeared in person to argue this petition, has made reference to Articles 101, 103(2), 207, 213, 214 and 216 of the Constitution and on the basis of these Constitutional provisions, strongly contended that, firstly, respondent No. 2, having political affiliations with one political party in the past and having also remained Governor of Sindh, could not have been nominated or appointed by the President as Chief Election Commissioner; secondly, the office of Chief Election Commissioner, in, view of the language of clause-2 of Article 213, could not have been assigned to any individual, who, at the time of his nomination to hold the office of Chief Election Commissioner, is otherwise not eligible to be appointed as Judge of the Supreme Court, as the bar of upper age limit of 65 years would be a disqualification for him; while the newly appointed Chief Election Commissioner/respondent No. 2 is admittedly aged more than 83 years.
He lastly argued that admittedly in the past, respondent No. 2 has maintained his affiliations with a leading political party of the Country who is presently in power, and he has also remained counsel for M/s. Mian Muhammad Nawaz Sharif and Mian Muhammad Shahbaz Sharif, two well-known political figures from Punjab and it is for this political background of respondent No. 2, that he is a controversial figure, not suitable to hold such independent office.
5. We have carefully considered the above submissions made before us by the petitioner and perused different Articles of the Constitution referred to by him. Article 101 of the Constitution relates to the appointment of Governor for each Province, who is to be appointed by the President on the advice of Prime Minister; Article 103 of the Constitution amplifies the conditions for a person to hold the Governor's Office and provides that the incumbent shall not hold any office of profit in service of Pakistan or occupy any other position carrying the right to remuneration for the rendering of services. Moreover, he shall not be a candidate for election . As a member of Parliament or a Provincial Assembly and, if any member of Parliament or a Provincial Assembly is appointed as Governor, his seat in the Parliament or, as the case may be, the Provincial Assembly shall become vacant on the day he enters upon his office. Article 207 next referred to by the petitioner deals with the conditions for a Judge of the High Court, that cannot hold any other office of profit in the service of Pakistan if his remuneration is thereby increased; or occupy any other position carrying the, right to remuneration for the rendering of services; clause 2 of Article 207 further provides that a person who held office as a Judge of the Supreme Court or of a High Court shall not hold any " office of profit in the service of Pakistan, not being a judicial or quasi-judicial office or the office of - Chief Election Commissioner or of Chairman or' Member of a Law Commission or Of Chairman or member of the Council of Islamic Ideology, before the expiration of two years after he has ceased to hold that office. Article 213 of the Constitution further referred to by the petitioner deals with the appointment of Chief Election Commissioner and it lays down as under "213. (1) There shall be a Chief Election Commissioner (in this Part referred to as the Commissioner)-, who shall be appointed by the President.
(2) No person shall be appointed to be Commissioner unless he is, or has been, a Judge of the Supreme Court or is, or has been, a Judge of a High Court and is qualified under paragraph (a) of clause (2) of Article 177 to be appointed a Judge of the Supreme Court.
(2A) The Prime Minister shall ill consultation with the Leader of the Opposition in the National Assembly, forward three names for appointment of the Commissioner to a Parliamentary Committee for hearing and confirmation of any one person.
(2B) The Parliamentary Committee to be constituted by the Speaker" shall comprise fifty percent members from the Treasury Be fiches and fifty percent from the Opposition Parties, based, on their strength in Majlis-e-Shoora (Parliament), to be nominated by the respective Parliamentary Leaders: ' Provided: that in case there is no consensus between the Prime Minister and the Leader, of the Opposition, each shall forward separate lists to the y Parliamentary Committee for consideration which may confirm any one name: ' Provided further that the. Total strength of the Parliamentary Committee shall be twelve members out bf which one-third shall be from the Senate: ' Provided also that when the National Assembly is dissolved and a vacancy occurs in the office of the Chief Election Commissioner, the total membership of the Parliamentary Committee shall consists of the members from the Senate only and the foregoing provisions of this clause shall, mutatis mutandis, apply.
(3) The Commissioner shall have such powers and functions as are conferred on him by the Constitution and law."
' Article 216 of the Constitution lastly referred to by the petitioner deals with the Commissioner and Members of Election Commission of Pakistan that they shall not hold any other office in the service of Pakistan; or occupy any other position carrying the right to remuneration for the rendering of services while holding such position.
7. A bare reading of the above-referred Articles of the Constitution leads us to a definite conclusion that all the grounds urged and submissions made by the^ petitioner in support of his plea to challenge the appointment of respondent No. 2 as Chief Election Commissioner of Pakistan, are entirely baseless, misconceived and devoid of merit. It could be seen from the language of Articles 101 and 103 of the Constitution, relating to appointment of Governor of the Province and conditions of holding such office that as a matter of fact, these two provisions of the Constitution go against the submission of the petitioner that respondent No. 2 is a political figure. Clause-2 of Article 101 provides that no person shall be appointed as Governor unless, he-is qualified to be elected as a member of the National Assembly and is not less than, thirty-five years of age, while clause-2 of Article 103 emphasizes upon his non-politician status so much so that even if he is an elected member of Parliament or Provincial Assembly, before entering upon the office of Governor, he has to vacate such office and further to take oath of office as contemplated under Article 102 of the Constitution, in the form set out in the Third Schedule; Thus, the appointment of respondent No. 2 as Governor of Sindh in the past could only be considered as his non-political status during the tenure of such office and not otherwise. Reference to Article 213 of the Constitution With further reference to clause (2) of Article 207 of the Constitution qua the age of respondent No. 2, is again misleading inasmuch as clause-2 of Article 213 provides two categories of qualifications for appointment as Chief Election Commissioner, that no t person shall be appointed as Chief Election Commissioner
(a) unless he is, or has been, a Judge of the Supreme Court or (b) is, or has been, a Judge of the High Court and is qualified under paragraph (a) of clause (2) of Article 177 to be appointed a Judge of the Supreme Court. In the context of qualification (b), (not applicable in the present case), when we look at the language of paragraph (a) of clause (2) of Article 177, we find that it contemplates that a person shall not be appointed a Judge of the Supreme Court unless he is a citizen of Pakistan and has for a period of, or for periods aggregating, not less than five years been, a Judge of High Court.(including a High Court which existed in. Pakistan at any time before the commencing day) ^ From the plain reading of above Constitutional provisions, it is evident that^ the two categories of qualification, with the insertion of word "or" in between, are disjunctive, therefore, a person who is or has been a Judge Of the Supreme Court ; in the past, is out rightly eligible to hold the office of the Chief Election Commissioner without any condition of upper age limit. It is for this clear legal position that in the past also many retired Judges of the Supreme Court of Pakistan, at least in double' figure, mostly after their retirement, have held this prestigious office without any such objection from any corner.
8. To fortify the above view, here a reference to the case of Malik Hamid Satfraz v. Federation of Pakistan and another (PLD 1979 SC 991) will also be useful. In this case, with reference to Articles I0O and 207 of the Constitution, further appointment of the then Attorney General for Pakistan as Minister for Law and Parliamentary Affairs in the Federal Government, was challenged with reference to the language of Article I0O of the Constitution, which provided' that a person to.Be appointed as Attorney General had to be one who is qualified to be appointed as a Judge of the Supreme Court. The contention raised in this context was that in, view of such required qualification the Attorney-General was deemed to be under the same disability as has been placed by Article 207 of the Constitution on a fudge of the Supreme Court in the matter of accepting/holding another office of profit, carrying alright to remuneration. This submission on behalf of the petitioner was repelled by the Bench with the following observation:- ,"The argument is clearly misconceived as merely prescribing a certain qualification for appointment as Attorney General for Pakistan does not mean that he would be governed by the same disability as applies to a Judge of the Supreme Court."
' Similarly, the requirement of qualification to hold the office of Chief Election Commissioner, being a Judge of the Supreme Court or has been a Judge of the Supreme Court, in terms of Article 213 of the Constitution Will not "ipso facto''' attract the disabilities visualized under Articles 179 and 207(2) of the Constitution in the case of appointment of Chief Election Commissioner. Moreso, when this aspect of the office of Chief Election Commissioner is separately dealt with under Articles 215 and 216 of the Constitution.
9. Besides, the Chief Election Commissioner, before entering into' his office, has to take oath of his office in terms of Article 214 of the Constitution, which reads as follows:- "(In the name of Allah, the most Beneficent, the most Merciful do solemnly swear that as Chief Election Commissioner or, as the case may be, member of the Election Commission of Pakistan I will discharge my duties, and perform my functions, honestly to the best of my ability, faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law, and without fear or favour, affection or ill-will, and that I will not allow my personal interest to influence my official conduct or my official decisions.
' May Allah Almighty help and guide me. (Ameen)."
' Taking oath of the office of Chief Election Commissioner in the above form, is yet another significant factor, which makes it abundantly clear that if the new incumbent had any political affiliation in the past, he had denounced such affiliation and is required to - hold the office of Chief Election Commissioner strictly in terms of oath of his office. The two Courts below, in their concurrent findings against the petitioner, contained in their respective judgments dated 17.8.2012 and 12.9.2012, have precisely taken into consideration all these aspects of the case judiciously thus, it cannot be said that any illegality was committed by them.
10. In view of the above discussion, no case for grant . Of leave to appeal is made out. Leave to appeal is, therefore, I refused and this petition is dismissed.
High Court Upheld/. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.