SH. RIAZ AHMAD, C.J.---These identical Constitution petitions, which are being disposed of by this common judgment, have been filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan to assail the validity of Article 8AA, titled "Disqualification from being a member of the Senate", of the Conduct of General Elections Order, 2002 (Chief Executive's Order No,7 of 2002) inserted therein on 29th October, 2002 by the Conduct of General Elections (Eighth Amendment)
Order, 2002 (Chief Executive's Order No,34 of 2002), hereinafter called the amending Order.
2. The Conduct of General Elections Order, 2002 (Chief Executive's Order No,7 of 2002), hereinafter referred to as the Order, was promulgated on 27th February, 2002 to provide for the holding of general elections in the country for the election of the members of the Majlis-e-Shoora (Parliament) and the Provincial Assemblies. The qualifications and disqualifications of the members of Majlis-e-Shoora (Parliament) and Provincial Assemblies were laid down under Article 8D of the Order. By virtue of a notification issued on 21st August, 2002 the electorate was called upon to choose their representatives for the National and Provincial Assemblies on 10th October, 2002 and for the Senate on 12th November, 2002. Election for the members of the National and the Provincial Assemblies was held in accordance with the election schedule announced by the Election Commission of Pakistan but election to the Senate was postponed and was ultimately held on 24th February, 2003 in the Provinces and on 26th February, 2003 in the Capital Territory of Islamabad and FATA. During the interregnum the Order was amended through the amending order promulgated on 29th November, 2002 whereby Article 8AA was added which is worded thus:- "8AA. Disqualification from being a member of the Senate.---Notwithstanding anything contained in the Constitution of the Islamic Republic of Pakistan, 1973, the Senate (Election) Act, 1975 (LI of 1975), the Representation of the People Act, 1976 (LXXXV of 1976), or any other law for the time being in force, a person shall be disqualified from being elected or chosen as, and from being, a member of the Senate if, having been a candidate for Election to the National Assembly or a Provincial Assembly at the elections held under this Order he has not been elected to such Assembly."
3. The disqualification envisaged by Article 8AA of the Order closed the doors of the Senate on several aspirants who had lost the election held on 10th November, 2002 for the National and the Provincial Assemblies. Resultantly, some of them invoked the original jurisdiction of this Court under Article 184(3) of the Constitution. At the outset Mr.JavedJabbar, who had lost the election for the National Assembly from Constituency No,NA-244 Karachi-VI and Mr.Muhammad Ayub Khan Khattak, a defeated candidate from PF-4, Karak-II, assailed the said Article through Constitution Petitions Nos.38 and 39 of 2002 mainly on the grounds that it was discriminatory, unjust, mala fide, arbitrary, violative of fundamental rights and had retrospectively penalized individuals for an action, i,e, defeat in an election which was not a disqualification at the time when the elections to the National and Provincial Assemblies had taken place. After hearing the learned counsel appearing for the said petitioners and the learned Attorney-General, who stated that nobody was debarred from filing nomination papers, interim relief was granted to the petitioners in the terms that if they choose to file nomination papers to contest election to the Senate and are not found disqualified on any ground other than that provided in Article 8AA of the Order their nomination papers shall be provisionally accepted subject to the final decision of the petitions. Thereafter, the remaining identical Constitution petitions listed above were filed and following the rule of consistency the petitioners therein were granted the same interim relief. However, subsequently Constitution Petition No,39 of 2002 was dismissed as withdrawn on the statement made in the Court by Qazi Muhammad Jamil, Advocate Supreme Court, that the petitioner was not awarded ticket in view of the decision of the Pakistan Muslim League (Q) not to award tickets to the losing candidates and the matter will be re-agitated if the impugned disqualification is not treated as one time legislation and made applicable in future. The learned counsel for the petitioners in a few other Constitution petitions did not press petitions by making similar statements and Constitution Petition No,6 of 2002 was also dismissed as withdrawn on the statement of Raja Muhammad Ibrahim Satti, Advocate Supreme Court, that the petitioner had not filed nomination papers as ticket had been awarded to his wife. It will be pertinent to mention here that all the Constitution petitions have been filed by the prospective candidates in their individual capacity though in the petition filed by Mr.JavedJabbar an attempt was made to create the impression that the petitioner had the backing of the Pakistan Millat Party. The impression was removed by Mr.Abdul Hafiz Prizada, learned counsel for Mr.JavedJabbar, through a statement made in the Court that although the President of the Millat Party was interested in assailing the provisions of Article 8AA of the Order yet the Constitution petition be treated as one filed by Mr.JavedJabbar in his personal capacity.
4. The respondents in their concise statement raised a preliminary objection to the effect that the petitions were not maintainable under Article 184(3) of the Constitution as they neither involved any question of public importance with reference to the enforcement of any of the fundamental rights enshrined in the Constitution nor had been filed by major political parties. In the parawise reply it was submitted that the constitution itself provides that further, qualifications or disqualifications can be prescribed by the law-making authority, there was no legal bar on promulgation of the amending Order after the elections to the National Assembly and Provincial Assemblies, the petitioners had no vested right to contest election to the Senate particularly when the right to contest an election is not a Constitutional right, the disqualification in question did not in any manner violate Article 25 of the Constitution and the amending order aimed at good governance.
5. Mt. JavedJabbar, petitioner in Constitution Petition No,38 of 2002, who was allowed to argue the case himself on the ground that his counsel Mr.Abdul Hafeez Pirzada had proceeded abroad for medical treatment, made the following submissions:--
(1) Unlike the constitutional Packages as well as the Devolution Plan, which were circulated in advance and the views of the public were invited, the impugned legislation was made suddenly and without prior notice to the public in general as well as the candidates intending to contest the elections to the National and Provincial Assemblies and the Senate.
(2) The impugned law is anomalous in nature as a person is allowed to contest the elections to the National and the Provincial Assemblies but not the Senate. Likewise, a person is allowed to contest election from several constituencies and defeat in one or more constituencies is no bar to contesting election from other constituencies.
(3) All the laws are to be made in the public interest whereas the impugned law has been made to protect vested interests of some of the members of the Cabinet.
(4) The impugned legislation is against the spirit of the democracy.
(5) The winning candidate from a particular constituency does not necessarily represent the will of the people as he does not poll the majority of the votes in the constituency but only bags votes more than the other candidates. In vast majority of cases, the votes obtained by the losing candidates combined together outnumber the votes polled in favour of a winning candidate. The winning candidate only represents his supporters.
(6) There is a different mode of election for the National and the Provincial Assemblies and the Senate. The former is a direct election whereas the latter is indirect. The constituencies for the two elections are different and the functions of the two bodies are also different in nature. The impugned legislation has no nexus with the objects and purposes of the two bodies.
(7) The constitution and composition of the Senate rests on the federative principle. The impugned law takes away the rights of the Provinces, especially the smaller Provinces and they are being disenfranchised from choosing the candidates of their choice who live in their Provinces.
(8) The impugned law suffers from inherent inequality with respect to women and minorities candidates and attracts the provisions of Article 25 of the Constitution besides being inconsistent with the Fundamental Rights guaranteed under the Constitution.
6. Raja Ibrahim Satti, learned counsel for the petitioners in Constitution Petitions Nos.18 of 2003 and 19 of 2003, after pointing out that his clients had contested election from NA-38 (FATA) and NA-43 (Bajaur Agency) but were defeated, contended that the Chief Executive was not competent to promulgate the amending Order. He further contended that the qualifications and disqualifications laid down under Articles 62 and 63 of the Constitution, the Representation of the People Act, 1976 and the Senate (Election) Act, 1975 represented the will of the people whereas the impugned disqualification was the outcome of whims of one person and had no nexus with Articles 62 and 63 of the Constitution. He further contended that defeat in an election is a part of the democratic process as in an election only one candidate is declared elected and the rest stand defeated. If defeat in an election is treated as a disqualification for any subsequent election it will be fatal to the democracy itself and perhaps for that very reason such a disqualification does not exist in any other country of the world. He next contended that the impugned legislation was discriminatory in nature as several defeated candidates have been accommodated against the seats reserved for minorities and women. Moreover, the disqualification had deprived the political 'parties from sending those nominees of their choice to the Senate who are capable of watching their interests.
He also contended that the impugned legislation was ultra vires the fundamental rights guaranteed under the Constitution as well as Articles 62 and 63 thereof inasmuch as in the case of Mian Muhammad Nawaz Sharif (PLD 1993 SC 473), wherein the earlier judgments in Benazir Bhutto's case reported as PLD 1988 SC 416 and the Symbols' case reported as PLD 1989 SC 66 were approved by this Court, it was held that the fundamental right to form or to be a member of a political party includes the right. To participate in and contest an election. He lastly contended that the amending Order was tainted with mala fides.
7. Mr. Ahmed RazaKasuri, learned counsel for the petitioner in Constitution Petition No, 24 of 2003 after describing the amending Order as a midstream legislation argued that the amending Order fully attracted the doctrine of double jeopardy as it punishes a person who has already been punished by the voters of his constituency and as such was violative of Article 13 of the Constitution and was also hit by Article 12. He further argued that it was a settled principle that laws pertaining to the fundamental rights have to be prospective and not retrospective in their application. The impugned law was retrospective in application. He lastly argued that the impugned legislation offended the provisions of Article 25 of the Constitution because several women and minorities candidates, who were defeated in the general election, have been accommodated against reserved seats.
8. Mr.M.Bilal, learned counsel for the petitioner in Constitution Petition No,14 of 2003 submitted that the power to amend the Constitution in this case does not flow from the Constitution. It flows from the judgment of this Court in Zafar Ali Shah's case, which restricts making of laws against Federation. The electoral college in both the cases, is entirely different. The impugned law restricts entry to the federating units which was forbidden in Mahmood Khan Achakzai's case (PLD 1997 SC 426).
9. Syed Iftikhar Hussain Gillani, learned counsel for the petitioner in Constitution Petition No, 23 of 2003, while adopting most of the arguments already raised, submitted that the country was put on notice about the general elections for the first time on 21st August, 2002 when the Legal Framework Order was issued. The dates for holding of election, i,e, 10th October, 2002, for the National and Provincial Assemblies and 12th November, 2002 for the Senate were explicitly mentioned therein.
Thus, his client's right to contest the election, which fell within the ambit of fundamental rights, accrued to him on 21st August, 2002. The candidates who intended to contest election to the National Assembly or the Provincial Assemblies would have taken a different decision if it had been provided in the Legal Framework Order or the Order that if they failed to win the election they would not be eligible to contest the Senate election. He further submitted that the impugned legislation was totally against the entire democratic process. He next submitted that the disqualification envisaged by the impugned article was in the nature of punishment for participation in the democratic process besides being discriminatory in its application and had caused grave injustice to the whole political and social fabric of the country. He also submitted that the parts of the Constitution revived on 16th November, 2002 include Article 270-B, which states that the elections held under the Conduct of General Elections Order, 2002 shall be deemed to have been held under the Constitution, therefore, the moment Article 27-B came into .Operation, Article 8AA of the Conduct of General Elections Order, 2002 stood omitted from the Statute book as it is a temporary, i,e, one time legislation. The nomination papers for election to the Senate were filed in January, 2003. Had the same been filed before 16th November, 2002, the position would have been different.
He next submitted that there was a conflict between the provisions of Articles 62 and 63 of the Constitution and Article 8AA of the Order.
10. Mr. Makhdoom Ali Khan, learned Attorney-General for Pakistan formulated his contentions as under:--
(1) The 1985 elections were held in February, 1985 and the Revival of the Constitution of 1973 Order, 1985 (President's Order No,14 of 1985) was promulgated on 2nd March, 1985. In the instant case, the Legal Framework Order was promulgated on 21st August. 2002 and the elections were held on 10th October, 2002. Thus, one major difference between the Revival of the Constitution of 1973 Order, 1985 (RCO) and the Legal Framework Order, 2002 (LFO) is that the former was promulgated after the holding of elections whereas the latter preceded the elections. In 1985 those provisions of the RCO and other Orders amending the Constitution, which were altered by the Constitution (Eighth Amendment) Act, 1985 plus the provisions which were not touched by this amendment, remained part of the Constitution and survived. The LFO has amended the Constitution and each and every one of these amendments is now a part of the Constitution.
(2) Although this Court has lowered the barriers of locus standi in the matter of exercise of its jurisdiction under Article 184(3) of the Constitution, yet the Court has always insisted on making a distinction between the parameters of Article 184(3) and Article 199 of the Constitution. The jurisdiction under Article 184(3) of the Constitution has always been allowed to be invoked only in matters where the issue involved affects the public at large. The present petitions raise individual grievances. Most of the petitions have not survived on the non-grant of tickets by the political parties and have been withdrawn.
(3) No doubt, the jurisdiction under Article 184(3) of the Constitution can be invoked by an individual in view of the judgments reported as PLD 1988 SC 416, PLD 1989 SC 66 and PLD 1993 SC 473 as well as Malik Asad Ali's case (PLD 1998 SC 161) where the matter had been agitated by an individual, but the important consideration was that it related to the independence of judiciary.
However, the present petitions need to be examined on the touchstone of the judgments of this Court reported as WukalaMahaz case (PLD 1998 SC 1263) and Zulfiqar Mehdi's case 1998 SCMR 793, which have been quoted with approval in a recent judgment .Of this Court reported as Watan Party's case (PLD 2003 SC 74). Moreover, none of the members of the National Assembly or any Provincial Assembly has come forward and none of the major political parties has invoked jurisdiction of this Court either. The National Alliance of which the Pakistan Millat Party is a component has not supported the petition filed by Mr.JavedJabbar and even the Millat Party of which Mr. JavedJabbar is the Secretary-General, has not fully supported his petition. The major political parties with one or two exceptions have not awarded tickets to the losing candidates. The petitioners are a group of individuals, who have not been awarded tickets by the political parties and want redressal of their individual grievances for which the remedy lies through the appropriate proceedings in the High Court or the Election Tribunal. The issues discussed and debated in the judgments relied upon by the petitioners affected the public at large and are of no avail to them in these proceedings.
(4) Participation in an election is a statutory right and not a Constitutional right. This is not the first or the last time that a qualification or a disqualification has been added. Articles 62 and 63 make room for the Legislature to add more qualifications and disqualifications. If the right to contest an election is held to be a Constitutional/Fundamental Right and jurisdiction under Article 184(3) allowed to be invoked in such matters, it would open the floodgates of direct litigation before the Supreme Court and the adequate remedies provided under the Constitution and the law would be rendered redundant and nugatory. The judgment of Pakistan Muslim League (Q)'s case reported as PLD 2002 SC 994 directly deals with this issue.
(5) Assuming but not conceding that any fundamental right of the petitioners has been violated, the matter needs to be examined on the touchstone of the provisions of Article 25 of the Constitution, which permits reasonable classification. There is no inter se discrimination inasmuch as women and minorities candidates have been treated alike. Moreover, there is a distinction in the two cases: the nomination papers for the general seats as well as the reserved seats were filed simultaneously, which is not the case in the Senate election; under Article 8F of the conduct of General Election Order, 2002, the political parties were required to submit a list of women candidates during the period when the nomination papers were to be filed; on completion of the election, reserved seats for women were allocated on the basis of the parties strength; and where a person got elected both on a general seat as well as a reserved seat, choice was given to surrender one of the seats.
(6) The law making Authority has the right to create a class. In the case of women and minorities, the entire purpose of creating reserved seats was an affirmative action and it was acknowledgement of the fact that those classes of people who could not be elected against the ' general seats get their due representation. In their case the Legislature had moved to provide relief to the less advantageous persons.
(7) In the case of bye-elections where a losing candidate is allowed to contest such election, the candidate returns to the people as such whereas in the case of Senate, the elections are held on the indirect mode.
(8) The impugned legislation has been introduced to cut down the political patronage and influence.
(9) There are certain core values which prohibit distinctions on the basis of race, colour, sex, etc. But there are other areas where the Courts the world over take less strict approach and do not sit in judgment over the wisdom of the Legislature. The test for classification has been exhaustively laid down in I.A. Sharwani's case (1991 SCMR 1041), which has been quoted with approval in a recent judgment of this Court reported as PLD 2002 SC 994.
(10) Articles 12 and 13 of the Constitution are not at all attracted to the facts of this particular case.
The keywords in Article 12, which prohibit retrospective punishment are, 'punishment offence' and 'penalty'. This is not a case where either an offence has been created or the law is providing for a punishment. Here, civil liability has been created. Article 8AA does not provide punishment for any offence. Similar is the position with regard to Article 4 of the 1962 Constitution (Article 13 of the 1973 Constitution), which has been interpreted in Nabi Ahmed's case (PLD 1969 SC 599). In section 9 of Article 1 of the Constitution of the United States of America, by saying 'No Bill of Attainder or ex post facto Law shall be passed' very wide language has been used. The US Supreme Court while interpreting this provision observed that the restriction on ex post facto laws applies only in the area of criminal laws. In Syed Akhlaque Husain's case (PLD 1965 Lahore 147) the bar on practicing law by a former Judge in the Court after he ceases to be a Judge of that Court was not held to be 'double jeopardy'. In Mir Ghous Bakhsh Bizenjo's case (PLD 1976 Lahore 1504) the Lahore High Court held that disqualification from contesting election did not attract the provisions of Article 12 of the Constitution because it was not a punishment or a penalty.
(11) It is not a case where there is a conflict between two Constitutional provisions and the question of prevailing of one provision over the other would not arise as held in the Judges' case (PLD 1996 SC. 324). Article 8AA does not make an amendment in either Article 62 or Article 63 of the Constitution. It is an exercise of power granted under Article 63(s) of the Constitution. Being a sub- Constitutional legislation, Article 8AA only adds to the list of disqualifications. Article 8AA is governed by para 6 (i), (a), (b) and (c) of the short order in Zafar Ali Shah's case.
(12) The principle of generis essentially is a principle of interpretation of statutes, which is not applicable to the present case. The qualifications and disqualifications given in Articles 62 and 63 of the Constitution are different in nature and content inter se and the question of Article 8AA having nexus therewith does not arise. If this principle is read into Articles 62 and 63 of the Constitution, it would be placing fetters on the power of the Legislature to add a qualification or a disqualification. The Constitution makers never intended that the qualifications or disqualifications to be added in future must be similar to the categories enumerated in Articles 62 and 63 of the Constitution.
(13) It is a well-established principle of interpretation of statutes that this Court will not knock down a statute, which suffers from a defect that is curable. The test in such cases is to put the statute next to the Constitution and see if the statute can be saved on any ground. The Courts will generally lean in favour of the constitutionality of a statute and will not strike it down if they do not find it unpalatable. Of course, the Court can declare a statute null and void if it finds no way out.
(14) The judgments in Ata Muhammad Mari v. Federation of Pakistan (1994 CLC 409) and Pir Shujaat Hasnain Qureshi v. Raees Ahmad Qureshi (PLD 1988 SC 118) upheld the disqualifications imposed in those cases. In the latter case, the disqualification had been imposed after the holding of the election.
11. Syed Shabbar RazaRizvi and Mr. Jehanzeb Rahim, learned Advocates-General, Punjab and N.- W.F.P. Adopted the arguments made by the learned Attorney-General for Pakistan. The latter, however, referred to the following judgments to supplement the submissions made by the learned Attorney-General:--
(i) Maintainability of petitions: Manzoor Elahi v. Federation of Pakistan (PLD 1975 SC 66 at 144 M), Mrs. Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632 at 659 G).
(ii) Addition of qualifications/disqualifications: Ch.Muhammad Yusuf v. The State (2002 CLC 1130).
(iii) Mala fides attributed to the Legislature: MehrZulfiqar Ali Babu v. Government of the Punjab (PLD 1997 SC 11) and Sh.Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504).
(iv) Retrospectively of law: Mir Ghous Bakhsh Biozenjo v. The Islamic Republic of Pakistan (PLD 1976 Lahore 1504) and NurAlam v. Special Judge (2001 PCr.LJ 669). Qazi Muhammad Anwar and learned counsel for the remaining petitioners adopted the arguments addressed by Raja Ibrahim Satti.
12. Before adverting to the main thrust of the contentions of the learned counsel for the petitioners, it is necessary to deal with the preliminary objection raised by the learned Attorney-General that the petitioner were not maintainable in view of the pre-conditions contained in Article 184 (3) of the Constitution which reads as under:-- "(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
13. The preliminary objection and the supporting contention is threefold. First, that although the scope of Article 184(3) of the Constitution has been enlarged and jurisdiction of this Court thereunder can be invoked by an individual yet in view of The peculiar nature of the controversy involved, the petitions ought to have been filed by major political parties instead of individuals.
Secondly, the petitions raise individual grievances and do not involve any question of public importance or an issue which affects the public at large and, thirdly, the petitioners have not identified as to which of their fundamental rights has been violated by the disqualification in question as the right to contest election is a statutory and not a fundamental right.
14. The first part of the objection relates to locus standi to invoke the jurisdiction of this Court under Article 1,84(3) of the Constitution which is a variable element being not regulated by any hard and fast rule. Its existence depends upon the nature of the case and the in-built provisions of Article 184(3) of the Constitution relating to violation of fundamental rights and question of public importance. It is by now well-settled that jurisdiction of this Court under Article 184(3) of the Constitution can be invoked by an individual and the Constitution petition filed by him is maintainable if the matter assailed involves a question of public importance with reference to the enforcement of any of his fundamental rights. Reference in this context may be made to Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324, Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263, Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 as well as Ms. Benazir Bhutto's case PLD 1988 SC 416 wherein the following observations were made:-- "The plain language of Article 184(3) shows that it is open-ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is confined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of a group or a class of persons whose rights are violated."
15. The expression "public importance" has been interpreted in a number of cases including Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; Ms. Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416, General Secretary, West Pakistan Salt Miners Labour Union (CBA), Khewra, Jhelum v. Director Industries and Mineral Development, Punjab 1994 SCMR 2061 and Mrs. Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632. The relevant portion of the judgment mentioned last reads as under:-- "From above-quoted passages, it is quite clear that whether a particular case involved the element of 'public importance' is a question which is to be determined by this Court with reference to the facts and circumstances of each case. There is no hard and fast rule that an individual grievance can never be treated as a matter involving question of public importance. Similarly it cannot be said that a case brought by a large number of people should always be considered as a case of 'public importance' because a large body of persons is interested in the case. The public importance of a case is determined as observed by this Court in Manzoor Ellahi's case (supra) by decision on question affecting the legal rights and liberties of the people at large, even though the individual who may have brought the matter before the Court is of no significance. Similarly, it was observed in Benazir Bhutto's case (supra), that public importance should be viewed with reference to freedom and liberties guaranteed under Constitution, their protection and invasion of these rights in a manner which raises a serious question regarding their enforcement, irrespective of the fact whether such infraction of right, freedom or liberty is alleged by an individual or a group of individuals."
16. In view of the above interpretation of the expression "public importance", the status and importance of the Senate which is an integral part of Majlis-e-Shoora (Parliament) and consists of the chosen representatives of the people, mode of election of members of the Senate, prerogative of the political parties to award tickets to persons of their choice and solicited scrutiny of the amending Order there is no difficulty in holding that the petitions involve a question of public importance within the contemplation of Article 184(3) of the Constitution. As regards infringement and enforcement of a fundamental right of the petitioners, suffice it to say that right to contest an election is not only a statutory but also a fundamental right conferred by Chapter 1 of Part II of the Constitution. Every citizen who fulfills the conditions laid down under Articles 62 and 63 of the Constitution and the related law is eligible to contest an election and to participate in the ensuing formation of Government either in his individual capacity or as a member of a political party. Such right is guaranteed under Article 17(2) of the Constitution and has been recognized as such in Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 and Pakistan Muslim League (Q) v. Chief Executive of Islamic Republic of Pakistan PLD 2002 SC 994. The observations made in the case of Pakistan Muslim League (Q) read as under:-- "24. It was next urged before us that the Election Order is ultravires Articles 17 and 25 of the Constitution. We will first reproduce Article 17 of the Constitution, which reads as under:-- "17. (1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.
(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of thesovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.
(3) Every political party shall account for the source of its funds in accordance with law."
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."
The preliminary objection is thus devoid of substance and the Constitution j petitions are maintainable.
17. This leads us to the contentions of the learned counsel for the petitioners and the submissions made by the learned Attorney-General. The contention with regard to the legal status of the amending Order is without merit for the short reasons that the Chief Executive was competent to promulgate the same in view of the observations made in Zafar Ali Shah's case PLD 2000 SC 869.
The contention based on mala fides also cannot prevail in view of the principle enunciated in Mehr Zulfiqar Ali Babu v. Government of Punjab PLD 1997 SC 11 and Sheikh Liaqat Hussain's case PLD 1999 SC 504 that a law can be struck down if it violates any provision of the Constitution but it cannot be struck down on the ground of mala fides if promulgated by the competent authority. Out of the remaining contentions there are two common contentions which stand out prominently and require consideration. The first contention relates to the discriminatory nature of the amending Order with reference to Article 25 of the Constitution and the second to its belated promulgation.
18. Elucidating the first common contention, the learned counsel for the petitioners submitted that the provisions of Article 8AA were discriminatory within the import of Article 25 of the Constitution as the petitioners stood disqualified to contest election to the Senate for the reasons that they had lost the election to the National Assembly and the Provincial Assemblies held on 10th October, 2002 whereas similarly placed candidates were not debarred from contesting bye-election as well as election against the special seats reserved for women and non-Muslim. The learned Attorney- General, on the other hand, submitted that Article 8AA was not discriminatory in any manner because the Constitution permits reasonable classification and there was no inter se discrimination as to women and non-Muslim candidates. He further submitted that as required under Article 8F of the Order the political parties had submitted lists of women candidates within the period fixed by the Election Commission of Pakistan for submission of nomination papers. On completion of the election to the National and Provincial Assemblies reserved seats for women were allocated on the basis of strength of the political parties. The candidates declared elected both on general seats and the reserved seat were given choice to surrender one of the seats and in the case of bye-election the candidates who were defeated in the general elections had returned to the people.
19. Having considered the contentions of the learned counsel for the petitioners and the learned Attorney-General we have come to the conclusion that Article 8AA of the Order, added by the amending Order, is discriminatory within the contemplation of Article 25 of the Constitution as it is not based on reasonable classification and equals have not been treated equally. In other words all the candidates defeated in the general elections have not been treated equally. Those defeated candidates who wanted to contest election to the Senate have been disqualified but no embargo at all has been placed through any provision of the Order on those defeated candidates who want to contest bye-election or seek adjustment against the seats reserved for women and non- Muslims. The contention of the learned Attorney-General for Pakistan that in a bye-election the defeated candidates once again resort to the voters for re-election is of no consequence, inasmuch as the members of Senate are also representatives of the people despite the fact that they are elected through a different mode.
20. There is abundant case-law which deals with the concept of reasonable classification but we would like to refer only to the case of I.A. Sharwani and others v. Government of Pakistan 1991 SCMR 1041 at 1086 wherein the following principles in respect thereof were enunciated:-- "(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) that the differentia must have rational nexus to the object sought to be achieved by such classification."
21. It is an admitted position that a person who possesses the qualifications enumerated in Article 8D of the Order and is not hit by the disqualifications laid down therein is eligible to be elected or chosen as a member of a House of the Majlis-e-Shoora (Parliament) or a Provincial Assembly. The disqualifications mentioned therein do not include the disqualification in question which, as mentioned earlier, has adversely affected only those candidates defeated in the general election who intended to contest election to the Senate. The discrimination is not only spelt out by Article 8AA itself but is also borne out by the following instances:--
(i) Ms. Tehmina Daultana had lost election from Constituency No,NA168, Vehari-II, but was elected against a seat reserved for women.
(ii) Maulana Atta-ur-Rehman had lost election from Constituencies Nos.NA-24, D.I. Khan and NA- 25, D.I.Khan-cum-Tank, but was elected in the bye-election of Constituency No,NA-25, D.I.
Khancum-Tank against the seat vacated by Maulana Fazalurttehman.
(iii) Mr.Saeed Ahmad Chaudhry had lost election from Constituency No,NA-163, Sahiwal-IV, but was elected in the bye-election of the same constituency against the seat vacated by SardarFarooq Ahmed Khan Leghari.
(iv) Syed Javed Ali Shah had lost election from Constituency No,NA-216, Khairpur-II, but was elected in the bye-election of the same constituency against the seat vacated by Syed Saddaruddin Shah.
(v) Mr. Muhammad Basharat Raja had lost election from Constituency No,PP-6, Rawalpindi-VI, but was elected in the bye-election of Constituency No,PP-110, Gujrat III against the seat vacated by Chaudhri Pervez Elahi.
(vi) Mr.Imtiaz Ahmed alias Tarique Shaikh had lost election from Constituency No,PS-11, Shikarpur III, but was elected in the bye- election of Constituency No,PS-1 8, Jacobabad-VI against the seat vacated by Sardar Saleem Jan Khan Mazari. It may be mentioned here that these parliamentarians belong to the same class of candidates who have been debarred from contesting election to the Senate.
The preamble to the amending Order does not disclose them rationale behind the disqualification prescribed by Article 8AA and the omission, coupled with the application of the disqualification to a particular class of the defeated candidates, goes a long way to suggest that the' disqualification has been introduced without any justification and intelligible differentia having rational nexus to the object sought to he achieved by such classification. Even if any rationale is presumed it is negated by certain noticeable factors. A contesting candidate may lose an election, by a single or a few votes, a winning candidate may be defeated by means of a corrupt or illegal practice and defeat may be turned into victory by the Election Tribunal. In the general elections some candidates had contested election from two constituencies but had lost election from one constituency. Moreover, the Senate and the National Assembly are two Houses of the same Parliament but the mode of election of their members is not identical. The members of the National Assembly are elected directly on the basis of popular vote whereas the members of Senate are elected indirectly by the members of Provincial Assemblies/National Assembly/FATA. A small constituency of the National Assembly or a Provincial Assembly, as the case may be, cannot be equated with the electoral college for election of the members of the Senate, namely, a Provincial Assembly which represents all the voters of a Province. The choice of the voters of a small constituency can have no bearing on the choice of the members of a Provincial Assembly/National Assembly/FATA who have a different criteria for election of Senators.
22. Adverting to the second common contention we find that Article 8AA of the Order not only offends the provisions of Article 25 of the Constitution, which guarantees that all citizens are equal before law, but is also unjust as its promulgation after completion of the process of general elections has left the petitioners high and dry. Participation in an election is a positive act which advances the cause of democracy and flows from the fundamental right of a person to contest an election which is enshrined in the Constitution and acknowledged in the Statutes on the subject. It is indeed unfair to sideline a candidate defeated in the general elections through a belatedly prescribed disqualification which is discriminatory in nature, militates against the spirit of democracy and tends to frustrate the process of Senate election. The amending Order was promulgated after completion of the process of general elections and those who intended to contest elections to the National Assembly and the Provincial Assemblies were not aware that in the event of defeat they would be disqualified to participate in the Senate election. We are convinced that had the disqualification in question been incorporated in the Order at the I outset the candidates desirous of contesting the Senate election would not have contested election to the National Assembly and the Provincial Assemblies and thus could have opted for a different course of action. The timing of the impugned legislation is crucial in the facts and circumstances of the present case and is fatal to the case of the Federation. Resultantly, the impugned legislation, although competently enacted and immune from challenge on the ground of mala fides, cannot be allowed to remain on the Statute book being violative of the provisions of Article 25 of the Constitution and having been introduced belatedly.
23. Before concluding we deem it necessary to deal with the contention raised by the learned Attorney-General that a similar disqualification was provided through Article 10(4) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 P.P.O. 5 of 1977) which was held to be valid in the case of Pir Shujaat Hasnain Qureshi v. Raees Ahmed Qureshi PLD 1988 SC 118. The cited judgment is distinguishable for the reasons that the disqualification was held to be one time disqualification and Article 10(4) of P.P.O. 5 of 1977, whereby it was envisaged, was not examined on the touchstone of Article 25 of the Constitution.
24. Hereinabove are the reasons for our &ion Order dated 10-2-2003 whereby the petitions were allowed. The Short Order reads as under:-- "Through this common Short Order, we propose to dispose of the captioned petitions which were filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, assailing insertion of Article 8AA in the Conduct of General Elections Order, 2002 -(Chief Executive's Order No,7 of 2002) whereby it was enacted that a person who had been defeated in the elections of National and Provincial Assemblies held in October, 2002, shall be disqualified to contest the election for a seat in the Senate. After hearing learned counsel representing the petitioners in these petitions and Mr.Makhdoom Ali Khan, the learned Attorney-General for Pakistan, and for reasons to be incorporated subsequently through-a detailed Order, we hold that Article 8AA (ibid) is discriminatory in nature and as such is violative of Article 25 of the Constitution of Islamic Republic of Pakistan. We further hold that disqualification attributable to defeat in consequence of lawful act of contesting election of the National and Provincial Assemblies should have been provided in the original Order itself, being impugned herein, so that, the affected persons should have an opportunity to avoid to suffer such disqualification."