The ongoing debate on whether elections to the office of Chairman and Deputy Chairman Senate can be held without the four members from FATA needs to be decided conclusively by our Supreme Court which is entrusted with the duty and responsibility of interpreting the Constitution. The words “duly constituted” used in Article 60 of the Constitution of Pakistan, 1973, are of paramount significance while deciding this controversial issue.
By way of Articles 54 and 59 our Constitution has given representation to six distinct territories in Parliament, these being Punjab, Sindh, Balochistan, Khyber Pakhtunkhwa, FATA and the Federal Capital. While said representation is based on population for National Assembly, in the Senate it is based on equal representation for all provinces in addition to eight seats for FATA and four for Federal Capital.
The constitution of senate is governed by Article 59(1) whereby clauses (a) to (f) provide for six essential elements to comprise a duly constituted Senate;
1. 14 general seats from all four provinces.
2. 8 seats from FATA.
3. 2 general, 1 technocrat and 1 woman from capital.
4. 4 women seats from all four provinces.
5. 4 technocrats from all four provinces.
6. 1 non-Muslim seat for each of the four provinces.
Since for the purposes of perpetual existence, elections to the senate are held every three years, elections are held to half the total membership of Senate. Thereby in effect reducing the numbers provided for in clauses (a) to (f) of Article 59(1), to half for each such election.
The word “duly” in normal parlance would mean: after fulfilling all essential requisites. According to Black’s Law Dictionary, it means: ” In due or proper form or manner ; according to legal requirements..”
Since the Constitution has, by way of Article 59(1), provided for six distinct requisite elements for Senate, a Senate constituted in the absence of any one of these requisites should not qualify as a “duly constituted” Senate.
It should be noted that members of Senate from FATA have not resigned or otherwise been disqualified. Four members have retired after due completion of their term. Consequently it is essential to elect four new members from FATA, as per the Constitution, to fill the vacated seats in Senate.
It may also be noted that in Article 53(1) for election of the Speaker and Deputy Speaker of National Assembly and Article 108 for election of the Speaker and Deputy Speaker of Provincial Assemblies the law makers have used the words: “After a general election..” and have not made the elections of Speakers and Deputy Speakers conditional upon a duly constituted National or Provincial Assembly. Therefore Speakers and Deputy Speakers of National and Provincial Assemblies may be elected even if membership of the respective houses is incomplete.
Senate, on the other hand, is the upper house of Parliament, it is the supreme legislative organ of the State. Unlike National and Provincial Assemblies, the Senate is a perpetually existing house which cannot be dissolved. The use of words: “After the Senate has been duly constituted…” instead of “after the Senate elections..” cannot be deemed meaningless and unintentional. It is therefore, in my opinion, essential to elect members from FATA to duly constitute the Senate, and thus an election to the office of Chairman and Deputy Chairman without election of members from FATA would be unconstitutional.