' JUSTICE MUHAMMAD BASHIR JEHANGIRI, (MEMBER)---This is a petition under Article 218 of the Constitution of Islamic Republic of Pakistan, 1973 filed by Dr. Naila Rehman Cheema, petitioner, against the Federation of Pakistan and 9 others for holding elections to the 20 reserved seats for women to the National Assembly as provided for under Article 51(4) and additional seats equal to 5 per centum of the number of members of each Provincial Assembly as provided under Article 106(4) of the Constitution.
2. Shorn of unnecessary details and repetitions, the case of the petitioner precisely is that the population of women in Pakistan is more than 52 per cent. Nonetheless, this community remains unrepresented in the elected Assemblies `for various reasons'. It is not disputed that 20 seats for the National Assembly and equal to 5 per centum of the number of members of each Provincial Assembly were reserved under Articles 51(4) and 106(4) of the Constitution.
3. The following three propositions were raised in the petition itself:-
(a) Whether the 'commencing day' for the provision relating to the elected bodies re-constituted by the Revival Order remains the same as contemplated by Article 265 of the Constitution or else it would be altered in view of the provisions of the Revival Order which came into force on March 2, 1985?
(b) Whether the 'three general elections' as introduced on the 19th of November, 1985 by Eight Constitutional Amendment Act shall be reckoned retrospectively or from the 'commencing day'?
(c) What is the 'commencing day' for the purposes of elections to the women seats in the National Assembly and the Provincial Assemblies?
4. The petitioner conceded that there are two judgments on the propositions which are in the field:
(1) Mrs. Memoona Sibghat's case (PLD 1991 Journal 76), decided by the Election Commission of Pakistan and (ii) Begum Shireen Bahar Cheema v. Federation of Pakistan and 14 others (PLD 1993 Lahore 822). According to the petitioner, in re: Memoona Sibghat, the commencing day was held to be 12th April, 1973, and that 10 years have passed and that no law or authority has been cited to exclude the period during which Martial Law remained imposed in the country. It was further held therein that the first general election was held in 1977, second in 1985 and the third was in 1988, therefore, the second condition was also not available. The Lahore High Court, according to the petitioner, following the law laid down in re: Memoona Sibghat also held that both the conditions were not available and the election to the reserved seats for women could not be held.
5. The petitioner has challenged the ratio of the two cited cases as ultra vires the Constitution on the following grounds:--
(a) That the period of ten years has been reckoned from 14-8-1973 (commencing day) which is not correct.
(b) That Article 265 has no application for holding election to the reserved seats for women in that clause (2) of Article 265 is subject to clauses (3) and (4).
(c) That first meeting of the Joint Sessions of National Assembly and the Senate was held on 23-3- 1985 under Article 3 of the Revival Order; therefore, the commencing day cannot go behind 23-3- 1995.
(d) That the election of the President was held on 19th December, 1984 under the Referendum Order of 1984. Article 47 of the Constitution was amended to include clause (7) whereby the President elected under the Referendum Order, 1984, was to enter upon the Office from the date of Joint sitting and was to be for a period of 5 years.
' Therefore, the commencing day cannot go beyond the Revival Order i.e, 2nd of March, 1985.
(e) That the Constitution had to come into force upon the enactment of the Constitution which dates back to 12-4-1973.
(f) That all powers contemplated in clause (4) of Article 265 had to be exercised between the enactment of the Constitution and its commencement but in this case Article 8 of CMLA Order No,1 revived all the services of Pakistan including the Judges of the Superior Courts in Pakistan.
Therefore, on any standard of interpretation the commencing day is 2nd of March, 1985 and not 14th of August, 1973.
(g) That the National Assembly, Senate and the Provincial Assemblies were dissolved on 5-7-1977.
The Laws (Continuance in Force) Order, 1977, CMLA Order No,1 of 1977, was promulgated on the same day. All laws were revived except the Constitution of Pakistan, 1973. This was contemplated by Article 5 of this Order. This order remained the source of power throughout Martial Law and was repealed on 30-12-1985 through the revocation of Martial Law Order. Therefore, the Constitution remained dead for all practical purposes till this Order was repealed. Therefore, the question of enforcement of the Constitution cannot go back than 30-12-1985.
(h) That the re-enactment of Article 51 cannot be retrospective but has to be treated as prospective. Therefore, the commencing day for the purpose of Article 51 (4) cannot go behind the day when th evival Order came into force on 2-3-1985. The commencement of this provision cannot be treated beyond the date when the Eighth Constitutional Amendment came into force.
Therefore, the amendment made in Article 51 has to be considered from the day when this amendment came into force and beyond it.
(i) That the Revival Order, the Referendum Order and other orders of the CMLA which the President had promulgated during the Martial Law have been made part of the Constitution by Article 270-A which was enforced on 29-12-1985 by a Notification issued by the President under Article 4 of the Revival Order. The Revival Order being the part of the Constitution can only be amended in the manner the Constitution is amended as provided by clause (6) of Article 270-A of the Constitution.
Therefore by all standards of interpretation the commencing day would be the 2nd of March, 1985, when the revival order was promulgated. Therefore, the period of ten years for the purposes of Article 51 (4) is to be counted from the 2nd of March, 1985.
(j) That Article 51 (4) was amended by Eighth Amendment of the Constitution which was promulgated in 1985. It was provided that this allowance of the reserved seats shall be extended to third general election. The elections to the National Assembly held in 1971 were the first general elections as contemplated by Article 51 (unamended Constitution) and Article 271 of the Constitution. The second general elections held under the Constitution were in 1977. The third general election was held in 1985 under the election orders which were deemed to be under the Constitution under Article 270-B.
6. It has been then averred that as the 'general election' has not been defined under Article 218 of the Constitution, therefore, the first general election as contemplated under Articles 271 and 273 of the Constitution would be that which had been held earlier than the commencing day and that any election that takes place when dissolved on the advice of the Prime Minister without completing its Constitutional tenure would not be taken to be general election, inter alia, for the following reasons:--
(i) That Article 51 (4) as amended by Eighth Amendment provided that the reserved seats for women shall be extended to the third general election and that as the elections to the National Assembly held in 1971 were the first general elections within the contemplation of Article 51 (unamended Constitution) and Article 271, and further that the second general elections were held in 1977 under the Constitution and that third general elections in 1985 were not the general elections for the purpose of Article 51 (4) of the Constitution providing for the women seats in the Assembly.
(ii) That the word 'until' has no application to the holding of the third general elections in that the Eighth Constitutional Amendment came into force on 19th of November, 1985 when three general elections had already been held and the period of ten years had elapsed, therefore, the amendment would become redundant which cannot be attributed to the Legislature. In fact, the elections held in 1988 were the first general elections the second in 1990 and the third in 1993.
7. On the 3rd of March, 1994 Advocate-Generals of the 4 provinces were issued notices but none of them could put up appearance before the Commission, therefore fresh notices were issued to them for 9th February, 1995.
8. We have heard Mr. Abdur Rehman Cheema, learned counsel for the petitioner, Raja Muhammad Bashir, Deputy Attorney-General on behalf of Attorney-General for Pakistan, Mr. Saifur Rehman Kiyani, Advocate-General N.-W.F.P. And Mr. Yaqoob Yousufzai, Advocate-General, Balochistan, assisted by Raja Abdul Ghafoor, Advocate for Local Government Department, Balochistan.
9. The learned counsel for the petitioner has reiterated the grounds before us which he had taken up in his petition and contended that since the amendment in Article 51 of the Constitution providing for 20 seats for women was promulgated on 19-11-1985, therefore, the third general election would be that which had been held in 1993 and not that which had been held in 1988. It was next contended that the Constitution had come into force on 12-4-1973, therefore, ten years period had expired on 11-4-1983 but as the Constitution had been held in abeyance till 29th December, 1985, therefore the period from 5th July, 1977 to 29th December, 1985 shall be excluded for the third general elections within the contemplation of Article 51 ibid. It was then argued that the general election held in 1977 had become ineffective and should be altogether ignored for the general election held in 1985 was not held under the Constitution but it was under the Houses of Parliament and Provincial Assemblies (Election) Order, 1977 (President's (Post-Proclamation) Order No, 5 of 1977), therefore, it should not be taken as general election for the purpose of Article 51 of the Constitution.
10. As against this, the learned Advocates-General have implicitly placed reliance on the dictum of this Commission (i) in re: Mrs. Memoona Sibghat (PLD 1991 Journal 76) and that of the Lahore High Court in (ii) Begum Shireen Bahar Cheema v. Federation of Pakistan and 14 others (PLD 1993 Lahore 822). According to them the words employed in Articles 51(4) and 106(4) of the Constitution of Pakistan, 1973 are unambiguous saying that the period of ten years is to commence from the day of commencement of the Constitution. They contended that the Constitution of Islamic Republic of . Pakistan, 1973 came into force on 14th of August, 1973 and that the period of ten years having once started running it could not be stopped due to any intervening disability or instance therefore, the period of ten years for which the seats reserved for women had already expired. Reliance was also placed in re: Begum Tahira Sultan (1989 MLD 4701) as to what was the commencing date of the Constitution. In this context it was submitted that the Constitution of Islamic Republic of Pakistan, 1973 was never annulled. According to them, it was held in abeyance and was revived in the year, 1985 duly amended by virtue of the amendment in the Constitution although the word 'second' was substituted by the 'third' and the word 'ten' by the word 'twenty', therefore, the period of ten years shall commence with effect from the date of commencement of the Constitution i,e, 14-8-1973 and not from the year 1985.
11. The first proposition as to what is the commencing day of the Constitution has been settled in the cases, namely, in re: Begum Tahira Sultan (1989 MLD 4701), Mrs. Memoona Sibghat (PLD 1991 Journal 76) and Begum Shireen Bahar Cheema v. Federation of Pakistan and 14 others (PLD 1993 Lah. 822). In re: Begum Tahira Sultan, Tufail Ali A. Rehman, C.J., as his Lordship then was, held that Article 265 of the Constitution of Pakistan, 1973 itself says that the Constitution shall come into force on the 14th August, 1973 or on such earlier day as the President may by notification appoint and that day is referred to in the Constitution as the 'commencing day' if, therefore, Article 266 uses the present tense it uses it with reference to the point of time at which Constitution itself came into force and the words 'is hereby repealed' mean is hereby repealed when the Article in question, that is to say, 266 itself, has any force and until the commencing day Article 266 as the rest of the Constitution, subject to its own provision, is not in force at all. In re: Mrs. Memoona Sibghat, this Commission has held that the Constitution came into force on 12th April, 1973. We regret to observe with all humility that the commencing day as held in re: Begum Tahira Sultan would be 14-8-1973 and not 12-4-1973. Again in Begum Shireen Bahar Cheema's case cited above after reviewing plethora of case-law, it was unequivocally held that the commencing day was 14-8-1973. We are, therefore, clear in our mind that the commencing day of the Constitution is 14-8-1973.
12. The next proposition falling for determination is whether ten years had elapsed since the commencing day. Again relying on the case of Mrs. Memoona Sibghat cited above, we have no doubt in our mind that the period of ten years had elapsed on 13th August, 1983, therefore, the period during which the Martial Law remained in force in the country i,e, from 5th July, 1977 to 29th December, 1985 could not be excluded because 'once time for the purpose of Article 51 of the Constitution had started running, it did not stop.'
13. It is fallacious to argue that the general elections having not been defined only those elections would be taken to be general elections which were held after the completion of their tenure and that the intermediary elections held in consequence of the dissolution of the National Assembly and the C Provincial Assemblies, respectively, under Articles 58 (2) and 112(2) of the Constitution were not the general elections. We have, therefore, no hesitation to hold that before the general elections in October, 1990, three general , elections were held: the first in March, 1977 the second in February, 1985 and the third in November, 1988. The learned counsel for the petitioner has miserably failed to cite any authority in support of his proposition that the elections held in February, 1985 and November, 1988 were not the 'general elections'. We, therefore, fmd no substance in the contentions raised on behalf of the petitioner in this context. Again we can do no better than quote the following excerpt from the authority of this Commission in re: Mrs. Memoona Sibghat cited above:-- "It is ascertainable from our record that the first election to the seats reserved for women in National Assembly and the Provincial Assemblies was held in March, 1977 under the constitution pursuant to and in accordance with provisions of section 47 of the Representation of the People Act, 1976 and the second election to the seats reserved for women in the National Assembly and Provincial Assemblies was held in 1985 and the third election to the seats reserved for women was held pursuant to and in accordance with the same provisions in 1988. Since the Constitutional provision for reserved seats for women had exhausted itself by afflux of time and by holding general elections as required under the Constitution, section 47 of the Representation of the People Act, 1976 was omitted from the Representation of the People Act, 1976 and because of this omission the Commission was no more under obligation to hold general election to the women seats."
14. Again the learned counsel for the petitioner has taken contradictory stances as to when the first 'general election' was held. In para. 3 of the petition the petitioner invoked the provisions of Article 271 and pleaded that the first general elections were those which were held before the enactment of the Constitution i,e, 12-44973. But in para. 7 of the petition the first general elections were said to have been held on 2nd March, 1985 in pursuance of the Revival of the Constitution Order, 1985 (President's (Post Proclamation) Order No,14 of 1985). Even on 'commencing day' of the Constitution, learned counsel for the petitioner is suffering from confusion. In para. 2 of the petition, 14-8-1973 has been described to be the commencing day whereas from para. 8 onwards the petitioner has taken 2-3-1985 as the commencing day.
15. We have, therefore, not been pursuaded to hold that the period of ten years has not elapsed since 14-8-1973. In this context we are fortified, besides the precedents of Lahore High Court cited, by the case of Sharaf Faridi and 3 others v. Federation of Islamic Republic of Pakistan and another (PLD 1989 Karachi 404) wherein it was ruled that period of ten years has already expired since 14- 8-1973 which was the commencing day of the Constitution.
16. Looking from any angle, we are of the considered view that the `commencing day' of the Constitution is 14-8-1973; that for the purposes of Articles 51(4) and 106(4) ibid a period of ten years has already elapsed when it, is reckoned from 14-8-1973 and; that the third general election within the contemplation of Articles 51(4) and 106(4) of the Constitution was the one held in 1988.
17. As a sequel to what has been observed above we do not find any substance in this petition and accordingly dismiss it.
18. For the reasons to be recorded a short order to this effect was passed by us on 9th February, 1995. The present order provides the reasons therefor.