P L D 2018 Balochistan 67
Before Mrs. Syeda Tahira Safdar and Zaheer ud Din Kakar, JJ
JAMEEL RAMZAN DEHWAR, ADVOCATE, SUPREME COURT AT QUETTA---
Petitioner
Versus
SADIQ SANJRANI and 3 others ---Respondents
Constitutional Petition No.212 of 2018, decided on 19th March, 2018.
Constitution of Pakistan ---
----Arts. 41(2), 49(2), 60, 62 & 260---Chairman Senate--- Age---Petitioner had assailed election
of respondent as Chairman Senate on the plea that he was less than 45 years of age and could not be app ointed as Acting President of Pakistan ---Validity ---None of the Articles of the
Constitution described age of persons who would hold offices of Chairman of the Senate and Speaker National Assembly, who were to be elected from amongst its member irrespectiv e of the
age---Provision of Art.62(1)(b) of the Constitution stipulated age of a person qualified to be elected as member of National Assembly as not less than 25 years, while Art.62(1)(c) described age of a person qualified to be appointed as Member of the Senate as not less than 30 years of age apart from other qualifications ---Age of Chairman of the Senate or of the Speaker of
National Assembly was not a pre -requisite nor a condition to act as President of the Pakistan---
Constitutional petition was dismissed in circumstances.
Petitioner in person.
Nemo for Respondents.
Date of hearing: 15th March, 2018.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. -This petition was filed with the relief:
"--- the election of respondent No. 1 as Chairman Senate having no qualif ied requirement
may kindly be declared as illegal and null and void. The writ of quo- warranto may be
issued in the interest of justice, equity and fairplay.
Further, this Hon'ble Court may kindly be pleased to restrain the respondent No. 1 to hold
the offi ce of President of Pakistan"
2. It was case of the petitioner that the election for Chairman of the Senate was held on 12th
March 2018, while respondent No. 1 Sadiq Sanjrani was declared as Returned Candidate, thus elected as Chairman of the Senate, and ho ld the post. That one of the duties of the Chairman of
the Senate is to hold the office of the President of Pakistan in his absence, and to perform the
duties till his return. That the qualifications to be elected as the President of Pakistan as contained in Article 41, sub- Article (2) of the Constitution of Islamic Republic of Pakistan 1973
(The Constitution) that he must be a Muslim, and not less then than forty five (45) years of age, and also qualified to be elected as a member of the National Assembly. It was his case that
Article 49 sub- Article (2) of the Constitution, the Chairman of the Senate has to hold the office
of the President in the eventualities as described, but the respondent No. 1 failed to meet the criteria, as he was born on 14th April 1978, and by now 39 years old, thus not qualified to act as President of Pakistan. That this disability to perform the duties would not only create a serious constitutional defect, but also seriously prejudice the country, and the national interest. That this serious violation of the Constitution was overlooked when the Notification of respondent No. 1, to be elected as Chairman of the Senate was issued, thus of no legal effect.
3. The petitioner repeated the averments made in the petition, while added that it is a case of
interpretation of the Constitution, thus of general importance, while need deep appreciation of the relevant provisions of the Constitution. He was of the view that if a person unable to take oath of the office of President for want of mand atory requirement, this further disqualified him to
be elected as Chairman of the Senate. The petitioner supported his averments by stating that one
of the duties of the elected Chairman is that while holding the office of the Chairman of the
Senate he has to hold the office of the President in his (President's) absence. Thus he (respondent
No. 1) has to fulfill the requirement of age as mandated by Article 41 sub- Article (2) of the
Constitution for the person to be elected as President. Thus this criteria has its bearing while
electing a member of the Senate as Chairman. He pressed that any disability to be elected as President, also disqualify a member to be elected as Chairman of the Senate. He was of the view that this principle was not observed in case of respondent No. 1, who was elected and took, oath
of the office in violation of the Constitution despite the fact he was less than forty five (45) years when elected as Chairman of the Senate.
4. The petitioner not only questioned the election of respond ent No.1 Sadiq Sanjrani as
Chairman of the Senate, but also asked for issuance of a restraint order against him to hold the office of the President of Pakistan. The prayer is of two folds firstly to declare the election of the Chairman of the Senate contra ry to the Constitution and secondly to restrain him to act as
President. The petitioner has to make out his case for both the reliefs.
5. The term Chairman defined in Article 260 of the Constitution, with the meaning the
Chairman of the Senate, and except in Article 49 of the Constitution, includes a person acting as
a Chairman of the Senate. Article 59 of the Constitution deals with the Senate, and contained the procedure for appointment of members of the Senate. While Article 60 of the Constitution is with election of offices of Chairman and Deputy Chairman of the Senate. Re -production would
be beneficial:
"60. (1) After the Senate has been duly constituted, it shall, at its first meeting and to the exclusion of any other business, elect from amongst its m embers a Chairman and a
Deputy Chairman and, so often as the Office of Chairman or Deputy Chairman becomes vacant, the Senate shall elect another member as Chairman or, as the case may be, Deputy Chairman.
(2) The term of office of the Chairman or Deputy C hairman shall be three years from the
day on which he enters upon his office."
While Article 62 contained the qualifications for member of the Parliament, the National
Assembly and the Senate. While Sub- Article (1) clause (c) of the Article pertained to t he
requirements to be fulfilled by a person to qualify to be elected or chosen as member of Senate.
Reproduction of clause (c) would be beneficial for better understanding of the issue. It reads as under:
"(c) he is, in the case of the Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership; "
For better understanding of the issue that a member if not qualify the age required to be
elected as President whether could he be elected as Chairman of the Senate? The referred to provisions of the Constitution are to be read co -jointly, not in isolation. The Articles 60 and 62 of
the Constitution if read co- jointly the only logical inference which could have been drawn that a
person apart from other qualifications might not be less than thirty years of age to be qualified to be elected as Member of the Senate. While a Chairman or a Deputy Chairman of the Senate have
to be elected from amongst its members. No age to elect as Chairman or Deputy Chairman is separately described in any other Article of the Constitution.
6. As far the President is concerned, Article 41 of the Constitution stipulates the
qualifications of a person to be elected as President. While sub -Article (2) of the Article 41 of the
Constitution described the limit of age, it reads as under:
"(2) A person shall not be qualified for election as President unless he is a Muslim of not less than forty -five years of age and is qualified to be elected as member of the National
Assembly."
While Article 49 of the Constitution is to meet with the requirement to continue the office
of the President in his absence for the stated reasons. The Art icle reproduced for better
understanding:
"49. (1) If the office of President becomes vacant by reason of death, resignation or removal of the President, the Chairman or, if he is unable to perform the functions of the office of President, the Speaker of t he National Assembly shall act as President until a
President is elected in accordance with clause (3) of Article 41.
(2) When the President, by reason of absence from Pakistan or any other cause, is unable to perform his functions, the Chairman or, if he too is absent or unable to perform the
functions of the office of the President, the Speaker of the National Assembly shall perform the functions of President until the President returns to Pakistan or, as the case may be, resumes his functions."
Plain re ading of the referred to Articles shows that there is no mention of the age of a
person to act as President while holding offices of the Chairman or the Speaker as the case may
be in the given circumstances.
7. The cumulative effect of the referred to Arti cles would be that a person qualified to be
elected as President, must not be less than forty -five (45) years of age, apart from other
qualifications as described. While to deal with the situation when the office of the President is
vacant due to his absen ce for the stated reasons, the Chairman of the Senate shall occupy the
office and perform the duties till re -election or return as the case may be. To further meet with
the situation the Speaker of the National Assembly is marked as an alternate. Article 4 9 of the
Constitution while dealing with alternate of the President to act in his absence for the stated reasons, provided no limit of age except the reasons of vacation of office and the alternate to fill it (Office) by designation of the posts i.e. the C hairman of the Senate and the Speaker of the
National Assembly. None of the Articles of the Constitution described age of the persons who shall hold the offices of the Chairman of the Senate and the Speaker of the National Assembly, who are to be elected f rom amongst its members irrespective of the age. Article 62 (1) clause (b)
of the Constitution stipulates the age of a person qualified to be elected as member of National Assembly as not less than twenty -five (25) years, while Article 62 (1) clause (c) describe the age
of a person qualified to be appointed as Member of the Senate as not less than thirty (30) years of age apart from other qualifications. In view of the language as used in Article 49 of the
Constitution, the age of Chairman of the Senate or of the Speaker of the of the National
Assembly not a pre -requisite, nor a condition to act as the President of the Country in stated
circumstances.
In view what has been stated hereinabove no case is made out for the relief claimed, thus
the petition is d ismissed in limine.
MH/49/Bal. Petition dismisseThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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