Justice Mansoor Ali Shah opines PTI should have appeared before SC
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00:00And Raja sahib, you have to take a specific position whether PTI candidates, 86 of them
00:08that contested elections as independents, they contested the elections as candidates of a
00:16political party PTI. You cannot change that stance. There is the legal position and there
00:24is other position. The legal position is that the election commission treated us as independents,
00:28gave us symbols out of the symbols. Raja sahib, as my Lord Justice Mansoor Ali Shah
00:36correctly stated that it is such a great public importance issue that your petition was probably
00:43more important. That could not have been returned. Now if you are abandoning that.
00:49I'm not abandoning that. I'm saying that issue is before your lordship.
00:53If we do not take notice of this matter under article 184.3 of the constitution,
01:01the people, their rights will be affected. I bow, I bow and I say so. You have to take a
01:06very clear stance. My Lord, I don't know what will find favour with your lordship,
01:10so I'm making two submissions, two alternative submissions.
01:54I was relying on me. I suppose they thought I have raised this issue and then when elections
02:09had happened and what happened to us, we were immediately involved before the election
02:12commission with our applications for recount and for re-examination and so on. The whole scenario
02:18changed after the election. Now, kindly let us see.
02:30Then I would submit. As my Lord is pointing out, Justice Atar Manilal, this is in your lordship's
02:34favour. Please argue your case. Yes, Your Lordship. I have not moved ahead.
02:39I'm placing reliance on a Privy Council judgment, which is then approved in our
02:50own jurisprudence. This is at page 61 of this paper book that I've placed before your lordships.
02:54And the question here was whether a proviso, what is the function of a proviso?
03:02Whether it is always... Which case are you referring to?
03:04This is, the case is titled the Commissioner of Stamp Duties versus Alan Cave Atwell.
03:10And this is 1973 Appeal Cases 558 Privy Council.
03:19And this has been noted with approval in 2017 PTD page one. I've placed that judgment here as well.
03:27Now, kindly see on the question of what a proviso does.
03:36This matter had come to the Privy Council from Australia, where the High Court had taken the
03:42view that a proviso can only restrict what precedes it and do nothing more. And I read at page 63.
03:50Their lordships are not able to agree with this conclusion. While in many cases,
03:57that is the function of a proviso. It is the substance and content of the enactment,
04:02not its form, which has to be considered. And that which is expressed to be a proviso may itself add
04:09to and not merely limit or qualify that which precedes it. Then I skipped the next paragraph.
04:16I go down to the paragraph thereafter. In my view, that is not the case here.
04:24And as Lord Herschel pointed out in the same case, of course, a proviso may be used to guide
04:29you in the selection of one or other of two possible constructions of the words to be found
04:34in the enactment and show when there is doubt about its scope, when it may reasonably admit
04:40of doubt as to its having the scope or that which is the proper view to take of it. My Lords, that
04:45is precisely the method of construction, which in my view is applicable in the present case.
04:51I will add that the words beginning, provided that are in my opinion, additional and explanatory
04:56words necessary for the purpose of giving a more definite meaning to the preceding words,
05:02that is of removing doubt as to its scope. And they might easily have been incorporated in the
05:07earlier part of the section at the risk of making it rather more cumbrous than it is.
05:12We are not dealing here with a true proviso or at any rate, not with such a proviso as this
05:17House was considering in the case cited. It cannot, I think, be disputed that in
05:22construing a section of an Act of Parliament, it is constantly necessary to explain the meaning
05:27of the words by an examination of the purport and effect of other sections in the same Act.
05:32This principle is equally applicable in the case of different parts of a single section.
05:36And nonetheless, that the latter part is introduced by the words provided that are like words.
05:41There can, I think, be no doubt.