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P L D 2005 LAHORE 150

MUHAMMAD RAFIQUE
V/S
FEDERATION OF PAKISTAN
Per Syed Jamshed Ali, J-

Constitution of Pakistan (1973) Arts. 17,25,89 & 199-

The submissions made by the learned counsel for the parties have been considered. The grounds to assail Ordinance No III of 2004 are summarized as under :–

(a) The conditions of Articles 89 of the Constitution were not satisfied and that it was justiciable.

(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 un-amended law results in discrimination.

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. 162] A & C.

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 assailed on the ground of mala fides, unreasonableness or that conditions of Article 89 were not satisfied. [p. 164] D

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 status itself will be a fundamental right.[p. 165] E

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. [p. 166] F

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 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. [p. 166] G

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. [p. 166] H

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 No. III of 2004 have become part of the Act itself but even in the scheme of the entire aforesaid Act thee is no provision for nullifying a valid nomination already made right to be elected is the creation of Act No. 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 relief upon by the learned Deputy Attorney General. It may also be noted that incase of doubt, it has to be resolved against retrospectivety to save to existing rights. [p. 167] I

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 along 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. [p. 167] J

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 the election to the Punjab Bar Council and the amended section 5-A(b) of Act (No. XXXV of 1973 does not apply to their case. [p. 168] K

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 ultra vires of any provision of the Constitution but also on the ground that the petitioners therein are not persons aggrieved to maintain these petitions. [p. 168]L

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