The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Muhammad Mujeebullah Siddiqui, J-

Constitution of Pakistan (1973) Arts. 25 & 199-

Before we proceed further, we would like to observe that the contention is contradictory in terms and amounts to blow hot and cold at the same time. On one hand learned counsel for the petitioner contended that the policy decision is discriminatory and the classification is not justified and on the other hand he wants the inclusion of the petitioner in the same classification.

In support of his contention, the learned counsel for the petitioner has placed reliance on a recent judgment of the Hon’ble Supreme Court in the case of Fecto Belarus Tractors v. Government of Pakistan PLD 2005 SC 65. We have gone through the judgment with the assistance of the learned counsel and we have found that the cited case was in respect of a plea that the Government of Pakistan and its functionaries have committed contempt of Court by not refunding the taxes paid by Fecto by not refunding the taxes paid by Fecto Belarus Tractors. The Hon’ble Supreme Court did not agree with the contention and held that no case of the contention and held that no case of the commission of the contempt of Court was made out and further held that the petitioner was not entitled for the refund. The judgment is not an authority on the point of reasonable classification for the purpose of Article 25 of the Constitution. The learned counsel has further placed reliance on the judgment of the Hon’ble Supreme Court in the case I.A. Sherwani v. Government Pakistan 1991 SCMR 1041 and has particularly placed reliance on the following observations made by the Hon’ble Supreme Court :

“(25) As pointed out hereinabove earlier that the case of the petitioners is not founded on the ground of violation of any provisions of the Civil Servants Act or the relevant statutory rules but is grounded on the violation of Article 25 of the Constitution. It would, therefore, be advant5ageous to reproduce hereinbelow the above Article, which reads as follows : —

“25. (1) All citizens are equal before law and are entitled to

(2) There shall be no discrimination on the basis of sex alone.

(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.”

It may be noticed that above-quoted clause (1) enshrines the 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. The above clause corresponds to 14th Constitutional Amendment of the American Constitution, which inter alia provides that ‘no State shall deny to any person within its jurisdiction the equal protection of law’. However, the above clause does not prohibit treatment of citizens by a State on the basis of a reasonable classification. The question, therefore, arises what should be the basis or criterion for classification as to avert violation of the above clause. In this regard, it may be pertinent to refer the following cases of this Court and of the Indian Supreme Court :–

(i) Brig. (Retd) F.B. Ali and another v. The State PLD 1975 SC 506;

in which this Court considered the scope of Fundamental Right No. 15 of the late Constitution of 1962 in context with article 25 of the Constitution and Hamoodur Rehman, C.J. who delivered the leading judgment, made the following observation :–

“Equal protection of laws does not mean that every citizen, no matter what his condition, must be treated in the same manner. The phrase ‘equal protection’ of the laws means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other class of persons in the like circumstances in respect of their life, liberty, property, or pursuits of happiness. This only means that persons, similarly situated or in similar circumstances, will be treated in the same manner. Besides this, all law implies classification, for, when it applies to a set of circumstances, it creates thereby a class and equal protection means that this classification should be reasonable. To justify the validity of a classification, it must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests on real or substantial difference of distinction. Thus different laws can validly be made for different sexes, for persons in different age groups, e.g. minor or very old people; different taxes may be levied from different classes of persons on the basis of their ability to pay. Similarly, compensation for properties acquired may be paid at different rates to different categories of owners. Such differentiation may also be made on the basis of occupations or privileges or the special needs of a particular locality or a particular community. Indeed the bulk of the special laws made to meet special situations or a particular community. Indeed the bulk of the special laws made to meet special situations come within this category. Thus, in the field of criminal justice, a classification may well be made on the basis of the heinousness of the crime committed or the necessity of preventing certain anti-social effects of a particular crime. Changes in procedure may equally well be effected on the ground of security of the State, maintenance of public order, removal of corruption from amongst public servants or for meeting an emergency.”

(ii) Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M.N.A. Former President of Defunct National Awami Party PLD 1976 SC 57 ;

In the above case, Hamoodur Rehman, C.J. while dealing with the reference made by the Government against the National Awami Party, touched upon the question of equal protection of law and made the following observations:–

“….What is unreasonable in one given set of circumstances may well be reasonable in another different set of circumstances. In order to test the reasonableness of such restrictions, therefore, no general standard exists. It will depend upon a variety of circumstances including the interest and urgency of the action proposed and the nature of the safeguard, if any, provided to prevent possibilities of abuse of power. The investment of arbitrary power in the executive to put to an end to the existence of a political party on the basis of its own satisfaction which may or may not be capable of being proved in a Court of Law may well be an unreasonable restriction having regard to the importance of the right of association guaranteed by the Constitution. The safeguard that such a declaration by the Executive will be subject to the decision of the Supreme court is, however, a sufficient safeguard of the interest of the political party and adequately protects it from being dealt with either arbitrarily or whimsically or out of political vengeance. This can, in no sense, be considered to be an unreasonable restriction.”

(iii) Mst. Aziz Begum and aothers v. Federation of Pakistan and others PLD 1990 SC 899;

in which, this Court has dilated upon Article 25 of the Constitution and observed as follows : —

“Article 25 also is not attracted to the claim made by the petitioners in the Constitution petition. It relates to equality of citizens before law and the equality enjoined by the Constitution permits reasonable classification and the adjudication by the Shariat Appellate Bench, recognizes and gives effect to the categories where the rights are to be protected as a class and not so protected as a class. There is no element of discrimination or arbitrariness in the same. The decision follows an elaborate line of reasoning for giving effect to or for declaring a portion of the law or the whole of it repugnant to a the Injunctions of Islam.”

(iv) Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another PLD 1990 Sc 295 ;

In the above case this Court, while declaring reservation of lesser seats for girls in Medical Colleges of Punjab as compared to boys as violative of Article 25 of the Constitution, observed as follows as to reasonable classification :–

“(17) The harmony and the consistency between Article 25 and Article 22 of the Constitution is obvious notwithstanding the generality of the one and the particularity of the other, only if we keep this important fact in view that classification based on intelligible and reasonable standards is permissible within the framework of Article 25 on the ground of sex and sex alone. If in Article 22 the word ‘sex’ had also been introduced then there would have occurred a conflict instead of consistency between Article 25 and Article 22 inasmuch as the classification permissible under article 25 would have become impermissible in educational institutions with regard to admission therein. The right would have sought admission in institutions exclusively reserved for boys and the boys would have sought admission in institutions reserved exclusively for girls unless it was shown as a fact that the institution for girls was kept exclusive for the purpose of and within the limitation of clause (3) of Article 25. as the two Article 25 and 22 stand at present, the general rule is that ‘sex’ cannot be adopted as the sole criteria for discrimination except for advancing the cause of women and children as permitted by clause (3) of Article 25. On that principle of reasonable and intelligible classification it is possible to have educational institutions exclusively catering to the needs of the male population and also educational institutions catering exclusively the female population in our context and in our society. However, when an educational institution is thrown open for co-education, as has been done in the case of six medical institutions excluding Fatima Jinnah Medical College, then a further restriction of numbers on the ground of sex is permissible only as a protective measure of women and children but in no case so as to protect comparatively less meritorious boys to the prejudice and exclusion of women. This amounts to gross violation of constitutional mandate.”

(v) Charanjit Lal Chowdhury v. TheUnion of India and others (AIR 1951) SC 41);

in which Fazl Ali, J of the Indian Supreme Court, while dealing with Article 14 of the Indian Constitution, made the following observations: —

“Many different classifications of persons have been upheld as constitution. A law applying to one person or one class of persons is constitutional if there is sufficient basis or reason for it.”

There can be no doubt that Article 14 provides one of the most valuable and important guarantees in the Constitution which should not be allowed to be whittled down, and, while accepting the statement of Professor Willis as a correct exposition of the principles underlying this guarantee, I wish to lay particular emphasis on the principle enunciated by him that any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed.”

(vi) Shri Ram Krishna Dalmia and others v. Shri Justice S.R. Rendolkar and others (AIR 1958 SC 538);

In the above case, the Indian Supreme Court repelled the contention that the reference made by the Government for holding enquiry against the appellant Company under section 3 of the Commissions of Enquiry Act, 1952, was violative of Article 14 of the Indian Constitution.

(vii) The Anant Mills Co. Ltd. State of Gujarat and others (1975) 2 SCC 175);

In the above case, section 406(2)(e) of the Bombay Municipal Corporation Act, which was amended by Gujrat Act No. 5 of 1970, and which provided making deposit of the tax amount in dispute as a precondition for filing of an appeal, was impugned as being violative of Article 14 but the Indian Supreme Court held that it was not so and that the provision has not the effect of making invidious distinction or creating two classes with the object of meting out differential treatment to them but it only spelled out the consequences flowing from the omission and default of a person.

(viii) State of Kerala and another v. N.M. Thomas and others (1976) 2 SCC 310) ;

In the above case inter alia the question before the Indian Supreme Court was, whether a rule which provides that given the necessary requisite merit, a member of the backward class shall get priority to ensure adequate representation, was violative of Article 14 and 16 of the Indian Constitution. It was held that the classification of employees belonging to scheduled castes and scheduled tribes for allowing them as extended period of two years for passing the specified test for promotion is a just and reasonable classification having retionale nexus to the object of providing equal opportunity for all citizens in matters relating to employment or appointment of public office.

(ix) In re: Special Courts Bill, 1978 (Special Reference NO. 1 of 1978) (AIR 1979 SC 478);

In the above case also inter alia Article 14 of the Indian Constitution was the subject-matter before the Indian Supreme court. In this regard, the following observations are pertinent:–

“(4) The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one persons and another if as regards the subject-matter of the legislation their position is substantially the same.”

(x) Ajay Hasia and others v. Khalid Mujibh Sehravardi and others (AIR 1981 SC 487);

in which the question was, whether the procedure adopted by the Society for granting admission to its educational institutions not to take into account marks obtained by the candidate in the qualifying examination but to regulate admission by relying on entrance test was violative of Article 14 of the Indian Constitution, it was held it was not so. However, it was also held that allocation of a high percentage as 33-1/3 of the total marks for the oral interview, was arbitrary and consequently, allocation of more than 15% marks was struck down as constitutionally invalid.

(xi) D.S Nakara and others v. Union of India (AIR 1983 SC 130);

in which the Indian Supreme Court made the following observations as to the reasonable classification with reference to Article 14 of the Indian Constitution :

“The fundamental principle is that Art. 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by a statute in question.”

A perusal of the law laid down by the Hon’ble Supreme Court as above shows that a classification can be held to be unreasonable if in one given set of circumstances the persons placed in similar situation are given different treatment. However, if persons placed in different circumstances and in different set of facts are given different treatment, it would not be treated as unreasonable classification.

Mr. Naqvi has further placed reliance on another judgment of the Hon’ble Supreme Court in the case of Shaukat Ali v. Government of Pakistan PLD 1997 SC 34. On perusal of this judgment we find that the facts relevant in this case were entirely different and, therefore, the direction of the Hon’ble Supreme Court that while discharging official functions, efforts should be made to ensure that no one is denied to earn his livelihood because of the unfair or discriminatory act on the part of any said functionary is in the context of the facts and circumstances of the said case. The ratio in this judgment revolves around the facts in that case which is not attracted to the fact so the present case. In the present case we find that the ECC has taken a policy decision and a classification has been given to wit the import of tractors shall be allowed only to those companies who have their tractor manufacturing units in Pakistan or are in the process of installing these. Such concessions in the realm of taxes, direct and indirect, are very common and this is not the only case in which a treatment is being meted out to the manufacturers and in being denied to the others. There are large number of concessions under the Income Tax Law and the other indirect taxes where concessions are allowed to the manufacturers only in order to boost the industrial sector in the country. So far classification is concerned, it is neither monopolistic, as contended by the learned counsel for the petitioner, nor the classification can be held to be arbitrary or unreasonable. The reason being that it has been extended to all the manufacturers including those who are in the process of installing manufacturing units. The manufacturers belong to a class distinct from the traders and businessmen. We have further asked Mr. Naqvi, whether the total demand of the tractors in country is confined to 10,000 tractors, to which he has replied in negative. He has stated that the demand is much more and, therefore, we are of the opinion that the other commercial importers and businessmen are not going to be ruined with the impugned decision taken by the ECC. Although under the concept of judicial review of administrative action the superior Courts always examine the decision taken by the executive to ascertain that they are not violative of the protections given in the Constitution, but at the same time a balance is to be struck keeping in view the principles enshrined in the Constitution of Islamic Republic of Pakistan. One of the fundamental features of the Constitution is of checks and balances and the separation of powers. All the three organs of the State, namely, legislature, executive and judiciary are required to function within their specified jurisdiction and the one organ of the State should never encroach upon the jurisdiction and powers of the other organ. The superior judiciary shall always be slow in interfering with the policy decision of the executive, so long the policy decision is within the domain of jurisdiction of the authority taking the policy decision or making executive order. The Hon’ble Supreme Court has considered this aspect in the case of Farzand Ali v. Province of West Pakistan, PLD 1970 SC 98. It has been held that in the matter of policy decisions the Government is the best Judge and it is not possible for the Court to sit on judgment over the action of the Government, if from materials disclosed it does not appear that the action taken was merely a colourable exercise of or in abuse of power. It was further held that, it must of necessity be left to the Government itself to decide and take policy decisions. It would be pertinent to observe that whenever any policy decision or executive order passed by the executive is assailed before the Courts, the question of Courts’ jurisdiction is determined by the court itself and, therefore, it is always incumbent upon every such court to determine its jurisdiction before embarking upon to consider the legality of such decisions/orders. In determining the question of jurisdiction in such matters it is always imperative to exercise judicial restraint keeping in view the principle of separation of powers firmly embedded and enshrined in the Constitution of the Islamic Republic of Pakistan. The judiciary has always safeguarded its jurisdiction jealously and has expanded it according to exigencies of time. However, while exercising the jurisdiction falling within the ambit of judicial review of administrative actions, it is equally important to ensure that no encroachment is made on the powers vested in executive and no interference is made until and unless any such decision/executive order is shown to be violative of any provisions of the Constitution or is established to be in derogation of or violation of the statutory law. We would further like to observe that the above principles are applicable when there is any case of judicial review of administrative action. However, the principles are different when the question relates to the jurisdiction of Civil Court for the reason that the Civil Court is the Court of ultimate, plenary and general jurisdiction, which shall exercise the jurisdiction in respect of all the civil matters unless the jurisdiction is expressly barred.

Taking guidance from the dictum laid down by the Hon’ble Supreme Court in the cases of I.A. Sherwani and Farzand Ali (supra) and the above principles, we are of the considered opinion that the classification given by the ECC in the policy decision, impugned in this petition, is reasonable. We do not find it either to be arbitrary or unreasonable or suffering from colourful exercise of the authority. Every manufacturer is entitled to apply for it and for that purpose the notice has been published in Daily Down, dated 13-8-2005. Thus the principle of transparency, which is hallmark of such matters, is also being observed. [pp. 234, 239,240,241]A,B,C,D,E,F,G,I & K

Amer Raza Naqvi for Petitioner.

Date of hearing : 23rd September, 2005.