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P L D 2002 SC 994

KISTAN MUSLIM LEAGUE (Q) AND OTHERS

V/S

CHIEF EXECUTIVE OF ISLAMIC REPUBLIC OF PAKISTAN AND OTHERS


Per Sh. Riaz Ahmed, C.J.

Constitution of Pakistan (1973), Arts. 184(3), 17, 25, 62 & 63-
R/w Conduct of General Elections Order [Chief Executive’s Order No. 7 of 2002] Art. 8A-

The petitioners, who are the political parties as well as politicians, have challenged the above legislation mainly on the grounds that it is not only violative of the provisions of Articles 17 and 25 of the Constitution but also travels beyond the parameters set by this Court in Syed Zafar Ali Shah’s case (PLD 2000 SC 869), it is unreasonable and irrational I view of the prevailing state of literacy in the country and tends to create an elitist class, curtail the choice and consent of the governed and take away the right of adult franchise and universal suffrage. [p. 1001] A

It was necessary to narrate this history briefly as its certain parts distinctly point to a political culture, which leaves much to be desired. It demonstrated utter disregard for the parliamentary values and deliberate attempt to injure the soul of democracy. The establishment of a democratic order and the institutions therein requires utmost responsibility on the part the elected representatives of the people but the record of most of the elected representatives of the four dissolved National and Provincial Assemblies speaks volumes about their psyche, lack of education and sense of responsibility. It also shows that the political field was dominated by a coterie of individuals representing a special class of vested interest, which ensured that if not they, their kith and kin were elected as members of the Assemblies. Regardless of the ideal standards, their main effort was directed to have their hegemony in the political field. There are known cases where through maneuvering and machination one faction deliberately wen to the opposition and the other to the treasury benches.

In the light of what has been narrated above, it is crystal clear that the political scenario in Pakistan is a sad tale of failures on the part of the public representatives. We may not go into the past but the 11 years history of the political events is an eye opener. Four National Assemblies in succession were dissolved on the ground of miscdemeanour on the part of the Government and the party forming it. The grounds on which the Assemblies were dissolved and which were upheld by this Court are sufficient for and necessitate a drastic change in the political culture of the country. No doubt it is the privilege of the public representatives to side with their party in power but it does not absolve them of their responsibility and look at the degree of responsibility that the 13th and 14th amendments were bulldozed and nobody raised his little finger against the proposed legislation. These amendments pertained to the Constitutional changes and were not germane to the ordinary law. A Constitutional amendment requires same thinking, deliberation and composition, which were totally absent and none took it seriously. In fact what was practised in those years was nothing but parliamentary dictatorship. A whim of the party leader in the House could not have become a substitute for the will of the people or their representatives in the Assemblies. Of course, it cannot be totally attributed to lack of education but nevertheless it was one of the most important factors owing to which the representatives had allowed themselves to be driven by their leaders. This Court also owes a duty to the posterity. It is matter of common knowledge that changes in the social, political and economic fields are not brought about at once with a magic wand but involve a journey of thousand miles, which requires a start with the first step. In our view, the Election Order deserves approval being the first step aimed at bringing about a change in the political culture, which has been described in the International Encyclopaedia of the Social Sciences by David L. Sills, Volume 12, page 218 as under :

“Political culture is the set of attitudes, beliefs, and sentiments which give order and meaning to a political process and which provide the underlying assumptions and rules that govern behaviour in the political system. It encompasses both the political ideals and the operating norms of a polity. Political culture is thus the manifestation in aggregate form of the psychological and subjective dimensions of politics. A political culture is the product of both the collective history of apolitical system and the life histories of the members of that system, and thus it is rooted equally in public events and private experiences.”[p. 1026 & 1027] B & C

The change in the political culture with reference to the educational qualification for members of the Assemblies is also necessitated by the fact that with the transfer of power at the grass-roots level through implementation of the devolution plan all the civic work has been assigned to the chosen representatives at different levels of the Local Government and now the business in the Parliament would mainly be confined to lawmaking. The making of new laws in the light of the changing circumstances and social and political values is an uphill task. In this view of matter, it is all the more necessary that the public representatives are well-versed with the modern trends changing social order and the events on the international scene. No doubt wisdom is not related with degrees but this is an exception to the rule. Education certainly broadens the vision, adds to knowledge, brings about maturity and enlightenment, promotes tolerance and peaceful coexistence and eliminates parochialism. We are convinced that the educational qualification prescribed for membership of Assemblies will not only raise their level of competence and change the political culture but will also be an incentive to education. [p. 1027 & 1028] D

We may now advert to the legal status of the Election Order. It was urged by all the learned counsel appearing before us that the Election Order in essence and spirit was an amendment in the Constitution which the Chief Executive was not empowered to make in view of the fetters imposed by this Court on his power to amend the Constitution. The argument is misconceived inasmuch as he Election Order does not amend the Constitution but is a law within the purview of Article 62(i) of the Constitution, which is worded thus :-

“62 . A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless-

……………………………………………………………………………………………………………………………………………………….

(i) he possesses such other qualifications as may be prescribed by Act of Majlis-e-Shoora (Parliament)”.[p.
1028] E

Section 99 of the Representation of the People Act, 1976 also deals with the qualifications for membership of the Parliament and is pari materia with Article 62 of the Constitution. A perusal of the Constitution. A perusal of the Constitutional provision highlighted above clearly shows that further qualifications in addition to those laid down in Article 62, which deals wit h the qualifications for membership of Majlis-e-Shoora (Parliament), can be prescribed by a law enacted by the lawmaking authority. The Election on the strength of the powers conferred on him by this Court in Syed Zafar Ali Shah’s case is thus a validly promulgated law and does not suffer from any legal defect or infirmity. It also does not transgress the limits laid down in the aforesaid scase as it is linked with the holding of general election in the country and aims at good governance which is the hallmark and soul of democracy and the ultimate outcome of general election. [p. 1028 & 1029] F

Article 17 clearly allows a citizen to have the right to form associations or unions subject to any reasonable restrictions imposed by law. Similarly, every citizen not being in the service of Pakistan has the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan. In this context, we are reminded of the following observations made by this Court in Mian Muhammad Nawaz Sharif’s case at page 558 while interpreting Article 17 of the Constitution :

“This approach was again in evidence in the Symbol’s case (PLD 1989 SC 66) wherein it was observed that the ‘Fundamental Right’ conferred by Article 17(2) of the Constitution whereby every citizen has been given ‘the right’ to form or to be a member of a political party comprises the right to participate in and contest an election.”

There is no cavil with the proposition laid down by this Court that every citizen has a right to contest election but the principle enunciated therein does not confer an unbridled right on every citizen to contest an election. The right to contest an election is subject to the provisions of the Constitution and the law and only those citizens are eligible to contest election who possess the qualifications contained in Article 62 and the law including the law made under Article 62(i) and do not suffer from disqualifications laid down in Article 63 of the Constitution and the law. [p. 1029 & 1030] G

Article 25 of the Constitution, which is equality before law clause and is equivalent to ‘due process of law and equal protection of law’ clause of the United States Constitution, has been interpreted by this Court in various cases. The leading judgment on the subject was delivered in I.A. Sherwani’s case. It was laid down therein that under Article 25 all citizens are equal before law are entitled to equal protection of law but the State is not prohibited to treat its citizens on the basis of a reasonable classification. The concept of reasonable classification its basis and criteria for classification to avert violation of Article 25 were also highlighted. The Court held that Article 25 of the Constitution enshrines basic concept of religion of Islam. However, this is now known as the golden principle of modern jurisprudence, which enjoins that all citizens are equal before law and are entitled to equal protection of law. In the case of I.A., Sherewani at page 1086this Court with regard to equal protection of law and reasonableness of classification laid down the following principles :-

(i) That equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike ;

(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;

(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;

(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances may be unreasonable in the other set of circumstances;

(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification, which is arbitrary and is not founded on any rational basis, is no classification as to warrant its exclusion from the mischief of Article 25 ;

(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed ;

(vii) that in order to make a classification reasonable, it should be based –

(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;

(b) There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the Constitutional principles. The person, therefore, who pleads that Article 14 (corresponding to Article 25 of Pakistan Constitution) has been violated, must make out that not only has he been treated differently from others but he has been so treated from persons similarly circumstanced without and reasonable basis and such differential treatment has been unjustifiably made. However, it is extremely hazardous to decide the question of the Constitutional validity of a provision on the basis of the supposed existence of facts by raising a presumption. Presumptions are resorted to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact ;

(c) it must be presumed that the Legislature understand and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based on adequate grounds ;

(d) the Legislature is free to recognize the degrees of harm and may confine its restriction to those cases where the need is deemed to be clearest ;

(e) in order to sustain the presumption of constitutionality, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation ;

(f) while good faith and knowledge of the existing conditions on the part of the Legislature are to be presumed, if there is nothing on the face of the law of surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of the constitution may reasonably be regarded as based, the presumption of the constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation :

(g) a classification need not be scientifically perfect or logically complete;

(h) the validity of a rule has to be judged by assessing its overall effect and not by picking up exceptional cases. What the Court has to see is whether the classification made is a just one taking all aspects into consideration.[p. 1032 & 1033] H

We need not refer to the plethora of case-law on the subject because the above principles summarize the entire case-law. Judging the Election Order in the light of the above principles, we are of the view that the education-related qualification is reasonable and not arbitrary or whimsical because firstly, being a step towards transformation of the political culture it is founded on reasonable basis and secondly, it equally applies to all the graduates and does not discriminate any graduate or create a class within the graduates. [p. 1032] I

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