1. Through this Constitutional petition, the petitioner, who is a lady voter citizen, of Pakistan, has sought a direction to the effect that the Election Commission of Pakistan may be directed to announce the schedule for holding of election to the reserved seats for women in the National and Provincial Assemblies as provided under Articles 51 and 106 of Constitution of Islamic Republic of Pakistan, 1973 read with Representation of the People Act, 1976.
2. 2.Briefly stated facts of the case out of which this petition has arisen are that Constitution of Islamic Republic of Pakistan, 1973 commenced on 14-8-1973 as per Article 265 of the Constitution of Islamic Republic of Pakistan, 1973, which reads as under:- Art.265(1).---This Constitution shall be known as the Constitution of the Islamic Republic of Pakistan.
(2) Subject to clauses (3) and (4) the Constitution shall come into force on the fourteenth day of August, one thousand nine hundred and seventy-three or on such earlier day as the President may, by notification in the Official Gazette, appoint, in the Constitution referred to as the "commencing day".
(3) The constitution shall, to the extent necessary----
(a) for the constitution of the first Senate;
(b) for the first meeting of a House or a joint sitting to be held;
(c) for the election of the President and the Prime Minister to be held; and
(d) to enable any other thing to be done which, for the purpose of the Constitution. It is necessary to do before the commencing day. come into force upon the enactment of the Constitution, but the person elected as President or Prime Minister shall not enter upon his office before the commencing day.
(4) Where by the Constitution a power is conferred to make rules or to issue orders with respect to the enforcement of any provisions or the appointment of any Judge or officer thereunder, or with respect to the person by whom, or the time when, or the place where, or the manner in which, anything is to be done under any such provision, then that power may be exercised at any time between the enactment of the Constitution and its commencement."
3. In the said Constitution as per Article 51 ten seats were reserved for the women for a period of 10 years, w,e,f, the commencement of the Constitution, or holding of the two general elections to the National Assembly whichever occurs later and as per Article 106 of the Constitution additional seats were reserved for women equal to five per centum of the total number of members of each Provincial Assembly. After the enforcement of the Constitution of 1973, first general elections were held in the year 1977 whereafter Martial Law was imposed in the country on 5th day of July, 1977.
4. The Assemblies and the elected Governments were dissolved and the country was taken over by the Chief Martial Law Administrator and 1973 Constitution was held in abeyance as per clause (a) of the Proclamation of Martial Law produced as under:- "Whereas, I, General M. Zia-ul-Haq, Chief of the Army Staff have proclaimed Martial Law throughout Pakistan and assumed the Office of Chief Martial Law Administrator, hereby order and proclaim as follows:-
(a) the Constitution of the Islamic Republic of Pakistan shall remain in abeyance;
(b) the National Assembly, the Senate and the Provincial Assemblies shall stand dissolved;
(c) the Prime Minister, the Federal Ministers, Ministers of State, Advisers to the Prime Minister, the Speaker and Deputy Speaker of the National Assembly and the Provincial Assemblies, the Chairman and Deputy Chairman of the Senate, the Provincial Governors, the Provincial Chief Ministers and the Provincial Ministers shall cease to hold office;
(d) the President of Pakistan shall continue in Office; and
(e) the whole of Pakistan will come under Martial Law."
5. The country was directed to be governed by the Chief Martial Law Administrator's Order 1 of 1977.
6. After the decision of Mrs. Nusrat Bhutto's case Provisional Constitution Order, 1981 came into force in the year 1981, whereby certain provisions of the Constitution of 1973 were made part of the Order and some new Articles were added. Article 51 was however not made as a part of the above Order.
7. On 2-3-1985 Revival of Constitution of 1973 Order, 1985 (P.O.No,14 of 1985) was enforced, in pursuance whereof the provisions of Articles 51 as well as 106 were amended. Articles 51 and 106 in amended form are reproduced as under: Article 51.-(1) The National Assembly shall consist of two hundred and seven Muslim members to be elected by direct and free vote in accordance with law.
(2) A person shall be entitled to vote if--
(a) he is a citizen of Pakistan;
(b) he is not less than twenty-one years of age;
(c) his name appears on the electoral roll; and
(d) he is not declared by a competent Court to be of unsound mind.
8. (2-A) In addition to the number of seats referred to in clause (1), there shall be in the National Assembly ten additional seats reserved as follows for the persons referred to in clause (3) of Article 106---- Christians. ...4 Hindus and persons belonging to the Scheduled Castes. ...1 Sikh, Buddhist and Parsi communities and other non-Muslims ...1 Persons belonging to the Qadiani group or the Lahori group (who call themselves Ahmadis)....1
(3) The seats in the National Assembly shall be allocated to each Province, the Federally Administered Tribal Areas and the Federal Capital on the basis of population in accordance with the last preceding census officially published.
(4) Until the expiration of a period of ten years from the commencing day or the holding of the third general election to the National Assembly, whichever occurs later, twenty seats in addition to the number of seats referred to in clause (1) shall be reserved for women and allocated to the Provinces in accordance with the Constitution and law.
9. (4-A) The members to fill the seats referred to in clause (2A) shall be elected, simultaneously with the members to fill the seats referred to clause (1), on the basis of separate electorates by direct and free vote in accordance with law.
(5) As soon as practicable after the general election to the National Assembly, the members to fill seats reserved for women which are allocated to a Province under clause (4) shall be elected in accordance with law on the basis of the system of proportional representation by means of a single transferable vote by the electoral college consisting of the persons elected to the Assembly from that province.
(6) Notwithstanding anything contained in this Article, the President may by order, make such provision as to the manner of filling the seats in the National Assembly allocated to the Federally Administered Tribal Areas as he may think fit. Article 106.-(1) There shall be a Provincial Assembly for each province consisting of the number of members hereinafter specified to be elected by direct and free vote in accordance with law.
10. Balochistan 40 The North-West Frontier Province 80 The Punjab 240 Sindh 100
(2) A person shall be entitled to vote if--
(a) he is a citizen of Pakistan;
(b) he is not less than twenty-one years of age;
(c) his name appears on the electoral roll for any area in the Province; and
(d) he is not declared by a competent Court to be of unsound mind.
(3) In addition to the seats in the Provincial Assemblies for the .Provinces of Balochistan, the Punjab, the North-West Frontier and Sindh specified in clause (1), there shall be in those Assemblies the number of seats hereinafter specified for non-Muslims: Province Christians Hindus and persons belonging to the scheduled castesSikh Budhhist Parsi communities and other non-MuslimsPersons and belonging to the Qadiani group or the Lahori group (who call themselves Ahmadis)
11. Baluchistan 1 1 1 -- The North-West Frontier Province 1 -- 1 1 The Punjab 5 1 1 1 Sindh 2 5 1 1 Explanation.---"Where no independent seat is allocated to a minorityin a Province for being very small in number, the seat allocated jointly to all other non-Muslims in that Province shall be deemed to include that minority.
(4) Until the expiration of a period of ten years from the commencing day or the holding of the third general election to the Assembly of a Province whichever occurs later, there shall be in the Assembly a number of additional seats reserved for women equal to five per centum of the number of the member of that Assembly specified in clause (1).
(5) The member to fill the seats referred to in clause (3) shall be elected, simultaneously with the members to fill the seats referred to in clause (1), on the basis of separate electorates by direct and free vote in accordance with law.
(6) As soon as practicable after the general election to a Provincial Assembly, the members to fill seats in that Assembly reserved for women shall be elected in accordance with law on the basis of the system of proportional representation by means of a single transferable vote by the electoral college consisting of the persons elected to that Assembly."
12. The Constitution of 1973 as amended uptodate, was revived on 10-3-1985 in pursuance of the enforcement of Constitution Order, 1985, which is reproduced as under:- "ENFORCEMENT OF CONSTITUTION ORDER, MARCH 10, 1985 In exercise of the powers conferred by Article 4 of the Revival of the Constitution of 1973 Order, 1985 (P.O.No,14 of 1985), the President is pleased to appoint the tenth day of March, 1985, to be the day on which the provisions of the Constitution, as amended by the said Order, other than those specified below, shall come into force.
13. Articles 6, 8 to 28 (both inclusive) clauses (2) and 2(a) of Article 101, Articles 199, 213 to 216 (both inclusive) and 270-A" and on 29-12-1985 proclamation of the 5th day of July, 1977 was revoked vide the following Notification: ENFORCEMENT OF CONSTITUTION NOTIFICATION BY THE MINISTRY OF JUSTICE, DECEMBER 29, 1985 `In exercise of the powers conferred by Article 4 of the Revival of the Constitution of 1973 Order, 1985 (P.O.No,14 of 1985) the President is pleased to appoint the day on which the Proclamation of the fifth day of July, 1977, is revoked to be the day on which the following provisions of the Constitution, as amended by the said order, shall come into force namely: Articles 6, 8 to 28 (both inclusive), clause (2) of Article 101, Articles 199, 213 to 216 (both inclusive) and 270-A.'. And the Martial Law was lifted on 30-12-1985. General Elections were held in the country in the year 1985 for a period of 5 years. However, the Assemblies were dissolved by the President of Pakistan under Article 58 of the Constitution on 29-5-1988 and again general elections were held in November, 1988. The Assemblies were again dissolved in the year 1990 under the same provisions and general elections were held during the same year. Assemblies elected in the year 1990 were dissolved on 18-4-1993 by the President of Pakistan under the provision of Article 58 of the Constitution of Islamic Republic of Pakistan, 1973. Some of the Provincial Assemblies were also dissolved. However, after a period of 39 days in case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473, the order of dissolution of National Assembly passed by the President of Pakistan was set aside and the Assembly was restored. Vide order dated 18-7-1993, the National Assembly was again dissolved on the advice of the Prime Minister of Pakistan by President of Pakistan and similarly, the Provincial Assemblies were also dissolved. Simultaneously, the Care- taker Governments took over with a mandate to hold free and fair general elections in the country which have been scheduled to be held on 6th and 9th of October, 1993 for National Assembly and Provincial Assemblies respectively, by the Election Commission of Pakistan. Nomination papers are being filed. The last date for the filing of nomination papers to National Assembly is 29-8-1993 whereas for Provincial Assemblies is 30-8-1993. It may be mentioned here that election to the reserved seats for women were held in 1977, 1985 and 1988. However, election to reserved seats for women were not held during the general election held in 1990 for the obvious reason that period of 10 years for which the seats had been reserved had already expired and, the election held in 1990 was considered as fourth general election. Provisions of section 47 of the Representation of the People Act, 1976 which relates to holding of elections to reserve seats for women had also been omitted/amended by the Legislature. Nobody had challenged the omission to hold election to the reserved seats for women or had demanded the election to the reserved seats for woman. After general elections of 1990 were held the matter was taken to the Election Commission of Pakistan in case of Mrs. "Memoona Sibghat" PLD 1991 Journal 76, wherein a direction was sought for holding of election to the reserved seats for women on the ground that period of ten years as mentioned in Article 51 as well as 106 of the Constitution shall commence with effect from the commencing day of Revival of Constitution Order, 1973 of 1985 and not from 1973 and at any rate the general election held in 1990 was since not even the second general election, the Assemblies are not complete unless and until the election is held for reserved seats for women in each Assembly. The case was examined at length by the learned Election Commission of Pakistan who after dilating on all the issues raised, dismissed the petition holding that elections of 1990 being fourth general elections and the period of 10 years having already expired w,e,f, the commencing day of the Constitution of Pakistan, 1973, no election for filling up of the so-called reserved seats for women can be held. This order was not challenged in any other forum and it stands established therefore, that everyone in the country accepted the factual and legal position that as per Constitution, there are no longer any reserved seats for women. It is in this background that the present Constitutional Peitition was filed yesterday. It has been heard at length today. Keeping in view the urgency as well as the importance of the questions raised in this petition, I called upon Mr. Faqir Muhammad Khokhar, Deputy Attorney-General of Pakistan to assist this Court, who appeared today at limine stage.
14. 2.Ch. Abdul Rehman Cheema, Advocate has appeared on behalf of the petitioner and has raised the following contentions:-
(i) that Constitution of Pakistan, 1973, stood annulled by virtue of enforcement of C.M.L.A. Order 1,1977, and it was for the first time in the year 1985 by virtue of Revival of the Constitution of 1973, Order 1985 that almost a new Constitution was enforced, hence, the period of ten years as mentioned in Article 51(4) shall commence from 1985 and not from 1973. Therefore, the reserved seats are still in existence, hence, petitioner is entitled to contest election against a reserved seat for women in the general elections which are being held in October 1993 and as no schedule has been announced by the Election Commission for holding of elections to the reserved seats for women, the respondents have failed to perform their lawful and Constitutional duty and, therefore, a direction may be issued to the respondents to issue schedule and to hold elections for reserved seats for women as provided under Articles 51 and 106 of the Constitution of Islamic Republic of Pakistan, 1973;
(ii) that Provisional Constitution Order, 1981 came into force in the year 1981 and Article 51 as it originally stood in 1973 Constitution conspicuously stood omitted. This Article according to the learned counsel became a part of the Constitution of Islamic Republic of Pakistan, 1973 in 1985, therefore, the commencing day for computing the period of ten years for holding of election to the reserved seats for women shall start w,e,f, 1985 and not w,e,f, 1973;
(iii) that the elections of 1977 were rigged. Election of 1985 were held under Martial Law regime.
15. Election of 1988 were held as a result of illegal dissolution of Assemblies by the President of Pakistan, which dissolution was held illegal. Similarly, election of 1990 were also held in pursuance of illegal dissolution of Assemblies. Therefore, all the aforementioned elections cannot be said to be the "general elections" in the real sense of the word. According to the learned counsel as per provision of Article 224 of the Constitution of Islamic Republic of Pakistan, 1973, a general election is only that election which is held either after the expiry of the normal term of five years of the Assembly or as a' result of Assembly dissolved on the advice of the Prime Minister. Hence the coming elections being held in October 1993 are the only first general elections being held after the commencement of the Constitution of Islamic Republic of Pakistan, 1973 as amended uptodate.
16. Therefore, without holding elections to the reserved seats for women, the Assemblies cannot be said to be complete. Therefore, the petitioner is entitled to the issuance of a direction sought for. In support of his contentions learned counsel has placed reliance on the following cases:-
(1) Federation of Pakistan and others v. Haji Muhammad Saif Ullah Khan and others PLD 1989 SC 166;
(2) Kh. Muhammad Sharif v. Federation of Pakistan and others PLD 1988 Lah. 725;
(3) Kh. Ahmad Tariq Rahim v. Federation of Pakistan and another PLD 1991 Lah. 78.
(4) Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473.
17. 3.Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General of Pakistan, who has appeared at limine stage, has vehemently opposed the writ petition. Learned counsel has contended had the words used in Articles 51 and 106 of the Constitution of Pakistan, 1973 are very clear which say that period of 10 years is to commence from the day of commencement of the Constitution. He contends that the Constitution of Islamic Republic of Pakistan, 1973 came into force on 14-8-1973 and the period of limitation of ten years having once started running it could not stop due to any intervening disability or incident, therefore, period of ten years for which the seats for women were reserved has already expired. In support of his contention, learned Deputy Attorney-General has placed reliance on case of Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Karachi 404. Learned counsel has further contended that Constitution of Islamic Republic of Pakistan, 1973 was never annulled. It was held in abeyance and was revived in the year 1985 in the amended form and by virtue of the amendment in the Constitution although word "second" was substituted by "third" and "ten" by "twenty", the word "commencing day" which is the terminus qua to compute a period of ten years was not amended or substituted, therefore, period of ten years shall have to commence w,e,f, the day of commencement of the Constitution of 1973 i,e, 14-8-1973 and not year 1985. Learned Law Officer has further contended that argument of the learned counsel for the petitioner that coming general election are the first general elections, is also fallacious. It is contended that elections of 1977 were the general elections held under 1973 Constitution and merely because they were not accepted as valid will not make the said elections as not "general elections" for the purpose of interpreting the provisions of Articles 51 and 106 of the Constitution. Reliance is placed on case of Niaz Ahmad Khan v. Province of Sindh and others PLD 1977 Karachi 604. Learned counsel has further argued that elections of 1977, 1985, 1988, 1990 and coming general elections have been announced to be held by the President of Pakistan. The elections which are announced to be held by the President are general elections as is clear from the provisions of Article 58 read with section 11 of the Representation of the People Act, 1976. "Other election," than the "general elections" are to be announced to be held by Election Commission of Pakistan. As admittedly all the previous elections have been held under the orders of the President of Pakistan, it cannot be said that the said elections were not the general elections for the purpose of Articles 51 and 106 of the Constitution of Islamic Republic of Pakistan, 1973. It is further contended that dissolution of Assemblies can be either by the President himself in exercise of his own discretion or on the advice of the Prime Minister. Article 224 does not make any distinction between the two types of dissolution of Assembly and as admittedly last general elections were held after the dissolution of Assemblies by the President of Pakistan, it cannot be said that the elections of 1985,1988 and 1990 were not the general elections as contemplated under the provisions of the Constitution. Lastly, the learned Law Officer has contended that the elections were not held for reserved women seats even during the last general elections held in the year 1990 and nobody had challenged this omission of the Election Commission of Pakistan, therefore, the petitioner is not entitled to raise this question at the time when the arrangements for holding of coming general elections in accord with the Constitution and the Laws of the country are in full swing. It is contended that the writ petition is not based upon bona fides and object thereof appears to be just to cause hindrance in the smooth arrangements being made for holding of the next general elections, therefore, the writ petition is not maintainable on this ground as well. Reliance is placed on Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396.
4. I have considered the arguments addressed by the learned counsel for the parties and have gone through the record as well as various Constitutional provisions and the case-law referred to at the Bar by both the learned counsel. Articles 51 and 106 of the Constitution of Islamic Republic of Pakistan, 1973, unequivocally provide that the period of 10 years for which the seats for A women are reserved shall commence from the day of commencement of the Constitution of 1973. As is clear from the perusal of provision of Article 265 admittedly Constitution of 1973 commenced on 14- 8-1973. This was never annulled although it was held in abeyance for certain period of time and some provisions had been added and substituted therein by amendments at various times.
18. However, the fact remains that the main Constitution remained intact, and, therefore, by no stretch of imagination it can be said that the Constitution of 1973 whereunder coming general elections are being held commenced later than 14-8-1973. This view is also supported by certain observations made in case of Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Karachi 404 at page 444 of the report which are reproduced as under:-- "Saleem Akhtar. J.-- I had the privilege of reading the learned judgment of my Lord the Chief Justice and entirely agree with it. However, I wish to record additional reasons for reaching the same conclusion and granting the same reliefs. The facts and contentions of the learned counsel for the parties have been lucidly and clearly set out in the judgment of the learned Chief Justice and I need not repeat them here. The petitioners wish to enforce the provisions of the Constitution with regard to judiciary and in that regard reference has been made to Article 175 which requires progressive separation of the Judiciary from the Executive within a period of 14 years which has expired as far back as on 14th August, 1987. The very words of Article 173 clearly establish that the Judiciary is not separate from the Executive and it ought to have been done progressively. It is not the claim of any party that it has already been separated."
19. Hence, I hold that period of 10 years as prescribed under the provisions of Articles 51 and 106 of the Constitution has already expired as the period shall commence w,e,f, 14-8-1973.
20. 5.The second limb of the argument of the learned counsel for the petitioner to the effect that coming general elections are the first general elections is also misconceived. Election of 1977 were general elections and by no interpretation it can be said that these elections were not the "general elections" within the meanings of the-Constitution. Learned counsel for the petitioner in fact is not in a position- to point out any reason on the basis whereof it could be said that 1977 elections were not the "General elections" within the meanings of the Constitution. Election 1985 were also the general elections and the learned counsel for the petitioner has rather conceded that even according to his interpretation those elections can be said to be "general elections" for the purpose of Constitution of Islamic Republic of Pakistan, 1973. Elections 1988 and 1990 are also held to be the general elections inasmuch as "the same" have been held after the dissolution of Assemblies by the President of Pakistan as well as the Governors of the Provinces. Merely because the Assemblies were dissolved without the advice of the Prime Minister or the Chief Minister or that the orders of dissolution were held illegal, does not make any difference for the purpose of determination of nature of the elections in question as is clear from the plain language of Article 224 of the Constitution which is reproduced below:-- "Article 224.---(1) A general election to the National Assembly or Provincial Assembly shall be held within a period of sixty days immediately preceding the day on which the term of the Assembly is due to expire. Unless the Assembly has been sooner dissolved, and the results of the election shall be declared not later than fourteen days before that day.
(2) When the National Assembly or a Provincial Assembly is dissolved, a general election to the Assembly shall be held within a period of ninety days after the dissolution, and the results of the election shall be declared not later than fourteen days after the conclusion of the polls.
(3) An election to fill the seats in the Senate which are to become vacant on the expiration of the terms of the members of the senate shall be held not earlier than thirty days immediately preceding the day on which the vacancies are due to occur.
(4) When, except by dissolution of the National Assembly or a Provincial Assembly, a seat in any such Assembly has become vacant not later than one hundred and twenty days before the term of that Assembly is due to expire, an election to fill the seat shall be held within sixty days from the occurrence of the vacancy.
(5) When a seat in the Senate has become vacant an election to fill the seat shall be held within thirty days from the occurrence of the vacancy."
21. No distinction has been made regarding nature of general elections to be held keeping in view the manner in which the Assemblies are dissolved. Therefore, the elections which are to be held after dissolution of Assemblies either in exercise of discretionary powers of the President or on the advice of the Prime Minister and Chief Minister respectively will be legally considered to be general elections for all intents and purposes. Hence the coming "general elections" are the 5th general elections in the country, hence, seats for women having been reserved up to third general elections only, the elections to such seats cannot be held during the coming general elections. There is no provision for holding of elections to the reserved seats for women even in the Representation of the People Act, 1976. Hence, it cannot be said that by not holding elections to alleged reserved seats for women, Election Commission is failing to discharge its Constitutional and legal duty. Even from another angle, the petitioner is not entitled to grant of any indulgence in exercise of the discretionary jurisdiction of this Court. As during the general elections held in the year 1990, no election was held to fill up the reserved seats for women, as the view of the Election Commission was that holding of election to the reserved seats for women is no longer a Constitutional and legal requirement, the matter was taken to the Election Commission on the judicial side in case of Memoona Sibghat PLD 1991 Journal 76 wherein it has been held that the elections of 1990 being fourth general election and the period of ten years having expired election to the reserved seats for women cannot be allowed. This order was never challenged either by the petitioner or any other citizen of the country. This factual and legal position, therefore, appears to have been accepted by everyone including the petitioner as well as all the political parties of the country. Present petition has been filed yesterday when the election machinery is in full gear and only days are left for filing of the nomination papers and a very short time is left for polls. The petition appears not to be bona fide and at any rate is barred by the principles of laches. In the above circumstances, no writ can be issued in view of certain observations made in case of Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396 at page 416 of which report it has been held as under:-- "In enacting Article 225 in the Constitution the purpose of Legislature is obvious that it did not contemplate two attacks oa matters connected with the election proceedings; one while the election process is on and has not reached the stage of its completion by recourse to an extraordinary remedy provided by Article 199, and another when the election has reached the stage of completion by means of an election petition. It is also of utmost consideration that in the case of two attacks on a matter connected with the election proceedings there is likelihood of there being two inconsistent decisions; one given by the High Court and the other by the Election Tribunal which is also an independent Tribunal and this could not be the intention of the Legislature. Again the words except by an election petition in Article 225 of the Constitution do not refer to the period when it can be called in question but point to the manner and the mode in which it can be called in question. It is, therefore, that the Constitutional provision is expressed in the negative form to give exclusive jurisdiction to the Tribunals appointed by the Election Commissioner and thus to exclude or oust the jurisdiction, of all Courts in regard to election matters and to prescribe only one mode of challenge. The purpose is not far to seek as in all democratic Constitutions such as is ours the Legislatures have an important role to play. And.
22. Therefore, it is of utmost importance that the election should be held as scljeduled without being unduly delayed or prolonged by challenging matters at the intermediate stage.
23. (Underlining is mine).
24. Resultantly, I see no force in this writ petition, the same is, therefore, dismissed in limine.