The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Jamat-e-Islami through Amir and others

versus

Federation of Pakistan and others

Per Muhammad Nawaz Abbasi, J–

Constitution ofPakistan(1973) Art. 184(3)–

There are two essential conditions for invoking the jurisdiction of Supreme Court of Pakistan under Article 184(3) of the Constitution.  The first condition is that subject mtter of the petition under this Article must be of public importance and second condition is that it must relate to the enforcement of any of the fundamental rights conferred by Part-II Chapter-1 of the Constitution.  We, therefore, in the light of law laid down by this Court on the subject, would like to examine the question whether the present petitions qualify the above test to entertain the same under ARticle 184(3) of the Constitution.

 There is no cavil to the principle that original jurisdiction of this Court under Article 184(3) of the Constitution cannot be exercised in a matter brought before it unless it is of public importance involving the enforcement of fundamental rights conferred by Part-II Chapter 1 of the Constitution (Articles 8 to 28) and in absence of any of the above condition, this Court is not supposed to entertain a petition under Article 184(3) of the Constitution.  The object of Article 184(3) of the Constitution is the enforcement of the fundamental rights referred therein and no question, other than relating to the enforcement of a fundamental right, can be brought before this Court for determination in its original jurisdiction and an aggrieved person may avail other remedies upon to him under the law.  This Court will not entrtain a petition under Article 184(3) if infringement of any of the fundamental rights conferred by Part II, Chapter 1 of th eConstitution is not involved as the remey under this Article is only for the enforcement of fundamental rights.  The validity of any law or a provision of Statute if is challenged on the ground other than being in contravention of fundamental rights, the Supreme Court would not entertain such challenge in the proceedings under Article 184(3) of the Constitution, even if the law is found in contravention of some provisions of the Constitution.  The rule is that Supreme Court will not interfere under this Article unless it is satisfied that infringment of the right being complained is the fundamental right and there is a breach of such right.  The constitutional jurisdiction of the Supreme Court under Article 184(3) of the Constitution also cannot be invoked for the correctness of a judgment of the Court in which a question of law was decided unless it is established that in consequence to the judgment of this Court, a fundamental right falling in Part II Chapter 1 of the Constitution has been violated.  The Supreme Court indeed has power to rectify its own mistake but the provision of Article 184(3) of the Constitution is invokeable only in the matter of public importance relating to the enforcement of fundamental rights. The question relating to the determination of the legislative competence or vires of a particular enactment can only be gone into in the jurisdiction under Article 184(3) of the Constitutio if a case is made out for interference of this Court by establishing that the law enacted was beyond the competence of the legislature which was not covered by the legislative list and also has invaded the fundamental rights guaranteed in Part-II, Chaptr-1 of the Constitution.  There is always presumption in favour of constitutionality of an enactment and Courts are not supposed to struck down a law merely on technical grounds, therefore, a question relating to the correctness or validity of an order and judgment of the Supreme Court which has otherwise attained finality, cannot be entertained in the proceedings under Article 184(3) of the Constitution but the Court may in an appropriate case in which a fundamental right is being infringed, can entertain an original petition as right to move the Supreme Court in a case of violation of fundamental right is itself a fundamental right.  It is thus essential that extence of a fundamental right and its breach actual or threatened, must be established to entertain a petition under Article 184(3) of the Constitution.  The power of the Supreme Court under Article 184(3) of the Constitution for enforcement of fundamental right is not confined to the extent of issue of prerogative writ and also is not necessdarily circumscribed by the conditions to limit the exercise of power rather this Article is wide enough to consider the question of public importance relating to the violation of fundamental rights.

 The scope of judicial review of the Supreme Court perhaps is most extensive known to the world of law as the Supreme Court in exercise of this power, can examine the validity even of an amendment in the Constitution which is violative of the basic structure of the Constitution.  However, the Supreme Court in its original jurisdiction under Article 184(3) of the Constitution is not supposed to give a declaration which has no useful purpose so far as the public interest is concerned and this power is also not invlkeable in absence of a direct and casual violation of fundamental right guaranteed under the Constitution.  The right to vote or right to contest the election is a statutory right and is subject to the limitation imposed by the Statutes, therefore, the provision of law relating to such rights may not be challengeable with reference to the fundamental rights as the right to file a petition under Articel 184(3) of the Constitution arises only in a case of infringement of the fundamental right or a serious threat to infring such a right but mere apprehension of breach of fundamental right is not enough to invoke these extra-ordinary provisions. This is also settled  principle of law that under this provision the Court will not answer a hypothetical question even if such a question in its substantial context may be of public importance relating to the fundamental rights and similarly the Supreme Court may refuse to grant relief in exercise of its original jurisdiction in a case, filed with delay although delay does not take away the jurisdiction of the Court.

In the light of foregoing discussion, there can be no departure to the Constitutional mandate that unless a matter of public importance concerning with the enforcement of fundamental rights conferred by Part II, Chapter-1 of the Constitution is involved in a petition under Article 184(3) of the Constitution, it is not entertainable.

The ratio of the judgment referred hereinabove is that unless the matter is of public importance relating to the enforcement of any of the fundamental rights conferred by Part II Chapter 1 of the Constitution (Articles 8 to 29), the jurisdiction of the Court under Article 184 (3) of the Constitution, cannot be invoked. The mere importance of a matter, without enforcement of any fundamental right or reference to a fundamental right without any public importance, will not attract the jurisdiction of this Court under Article 184 (3) of the Constitution.  Consequently, we having considered the matter in the light of the law laid down by this Court in the judgments referred hereinabove, find that these petitions under Article 184(3) of the Constitution are not maintainable and we are not persuaded to agree with the assertion that in view of the nature of dispute and importance of the matter, the Court may ignore the objection and decide these petitions on merits.  This may be pointed out that in the light of constitutional mandate as contemplated in Article 184(3) of the Constitution this Court may not entertain a direct petition under Article 184(3) in a matter not involving the enforcement of any of fundamental rights mentioned therein.  The question raised in the present petitions do not as such relate to the fundamental rights conferred by Part II Chapter 1 of the Constitution and most of these questions even otherwise are speculative and presumptive in nature at this stage.  There is clear distinction between Article 199 and Article 184(3) of the Constitution and this Court has repeatedly held that in the matters which do not involve enforcement of the fundamental rights of the public at large as envisaged in Article 184 (3) of the Constitution, a direct petition in original jurisdiction is not entertainable.

The exercise of jurisdiction under Article 184 (3) of the Constitution is certainly subject to the condition that matter i of public importance and is also related to the enforcement of fundamental rights conferred by Part II Chapter 1 of the Constitution and these fundamental rights are incorporated in Articles 8 to 28 as under :-

             “(8)  Laws inconsistent with or in derogation of Fundamental Rights to be void, (9) Security of person (10)   Safeguards as to arrest and detention, (11) Slavery, forced labour, etc., prohibited, (12) protection against retrospective punishment, (13) Protection against double punishment and self-incrimination, (14) Inviolability of dignity of man, etc. (15) Freedom of movement, etc. (16) Freedom of assembly, (17) Freedom of association, (18) Freedom of speech, etc. (19) Freedom to profess religion and to manage religious institutions, (2) Safequard against taxation for purpose of any particular religion, (21) Safeguard as to educational institutions in respect of religion, etc., (22) Safeguards as to educational institutions in respect of religion, etc., (23) Provision as to property, (24) Protection of property rights, (25) Equality of citizens (26) Non-discrimination in respect of access to public places, (27) Safeguard against discrimination in services and (28) Preservatioin of language, script and culture.” [p. 574, 582, 586, 587]A, B,E,F,G & H

Constitution of Pakistan(1973) Art. 184(3) & Part. II,

Chap.  [Arts. 8 to 28]–

 In the present case, the matter to the extent of the Presidential election is certainly has public importance but we have not been able to digest that the questions raised therein really relates to the enforcement of the fundamental rights conferred by Part II Chapter 1 of the Constitution (Articles 8 to 28).

 In the present case, the petitioners have sought a declaration against General Pervez Musharraf, a prospective candidate in the forthcoming Presidential election, that under the Constitution he while holding the office of Chief of Army Staff, is not eligible to participate in the election and have challenged his candidature before the start of election process in these petitions.  The learned counsel for the petitioners, however, have not been able to satisfy us that in what manner the candidature of General Pervez Musharraf causes infringment of any of the fundamental rights guaranteed under the Constitution and how it relates to the enforcement of such rights under Article 184(3) of the Constitution.

 The ratio of the judgment referred hereinabove is that unless the matter is of public importance relating to the enforcement of any of the fundamental rights conferred by Part II Chapter 1 of the Constitution (Articles 8 to 29), the jurisdiction of the Court under Article 184 (3) of the Constitution, cannot be invoked. The mere importance of a matter, without enforcement of any fundamental right or reference to a fundamental right without any public importance, will not attract the jurisdiction of this Court under Article 184 (3) of the Constitution.  Consequently, we having considered the matter in the light of the law laid down by this Court in the judgments referred hereinabove, find that these petitions under Article 184(3) of the Constitution are not maintainable and we are not persuaded to agree with the assertion that in view of the nature of dispute and importance of the matter, the Court may ignore the objection and decide these petitions on merits.  This may be pointed out that in the light of constitutional mandate as contemlated in Article 184(3) of the Constitution this Court may not entertain a direct petition under Article 184(3) in a matter not involving the enforcement of any of fundamental rights mentioned therein.  The question raised in the present petitions do not as such relate to the fundamental rights conferred by Part II Chapter 1 of the Constitution and most of these questions even otherwise are speculative and presumptive in nature at this stage.  There is clear distinction between Article 199 and Article 184(3) of the Constitution and this Court has repeatedly held that in the matters which do not involve enforcement of the fundamental rights of the public at large as envisaged in Article 184 (3) of the Constitution, a direct petition in original jurisdiction is not entertainable.

 The exercise of jurisdiction under Article 184 (3) of the Constitution is certainly subject to the condition that matter i of public importance and is also related to the enforcement of fundamental rights conferred by Part II Chapter 1 of the Constitution and these fundamental rights are incorporated in Articles 8 to 28 as under :-

             “(8)  Laws inconsistent with or in derogation of Fundamental Rights to be void, (9) Security of person (10)   Safeguards as to arrest and detention, (11) Slavery, forced labour, etc., prohibited, (12) protection against retrospective punishment, (13) Protection against double punishment and self-incrimination, (14) Inviolability of dignity of man, etc. (15) Freedom of movement, etc. (16) Freedom of assembly, (17) Freedom of association, (18) Freedom of speech, etc. (19) Freedom to profess religion and to manage religious institutions, (2) Safequard against taxation for purpose of any particular religion, (21) Safeguard as to educational institutions in respect of religion, etc., (22) Safeguards as to educational institutions in respect of religion, etc., (23) Provision as to property, (24) Protection of property rights, (25) Equality of citizens (26) Non-discrimination in respect of access to public places, (27) Safeguard against discrimination in services and (28) Preservatioin of language, script and culture.”

This may be pointed out that most of the questions raised in these petitions relate to the eligibility of President General Pervez Musharraf, a prospective candidate in the forthcoming election for the office of President are speculative and presumptive in nature which otherwise fall in the domain of Election Commissioner of Pakistan, a constitutional forum and thus these petitions before this Court being premature are not maintainable.  In the light of above discussion, we may conclude as under : —

                         (i)         That notwithstanding the public importance of the matter, the questions raised in these petitions do not as such relate to the enforcement of any of the fundamental rights guaranteed in Part II, Chapter-1 of the Constitution (Articles 8 to 28) therefore, these petitions under Article 184(3) of the Constitution are not maintainable.

                         (iv)The question relating to the application of Article 63 read with Article 62 of the Constitution to determine the eligibility of a person to contest the election for President cannot be raised before this Court at this stage as the matter squarely falls within the jurisdiction and domain of Election Commissioner of Pakistan, a constitutional forum of exclusive jurisdiction.

 In the light of above discussion and in view of the facts and circumstances of the present cases, we are of the considered opinion that the questions raised therein are beyond the scope of Article 184(3) of the Constitution and these petitions being not maintainable, are accordingly dismissed. [pp. 584,586,587,589,590] C,D,E,F,G,H,L,M,P & Q

 Constitution of Pakistan(1973) Arts. 184(3) & 25–

 In the light of nature of rights guaranteed under Articles 17 and 25 of the Constitution, the learned counsel for the petitioners have not been able to point out that which particular right under these Articles required enforcement and in what manner these rights of the petitioners of any other person, were infringed to bring the matter within the ambit of Article 184(3) of the Constitution.  Article 25 of the Constitution envisages that all persons are equal before law and a person aggrieved of any discriminatory treatment in respect of any of his right may approach the High Court and avail the remedy of writ petition for redressal of his grievance under Article 199 of the Constitution and if the question relating to the discriminatory treatment in respect of any of fundamental rights concerns with public at large, a direct petition under Article 184(3) of the Constitution is entertainable.  In the present case, petitioners have questioned the eligibility of the respondent to contest the election for the office of President which has no nexus with the rights guaranteed under Article 17 and 25 of the Constitution.

 The principle of equality and equal protection of law embodied in Article 25 of the Constitution envisages that All citizens are equal before law and are entitled to equal protection of law without any discrimination.  This principle is however subject to reasonable classification and this Court in Government of Balochistan v. Azizullah Memon (PLD 1993 Supreme Court 341) held that no standard of universal application to the test of 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. Looking into the matter in the perspective of Article 25 of the Constitution, we have not been able to find out any substance in the contention that respondent (General Pervez Musharraf) being in advantageous position, has edge over te other candidates in the election and similarly, the members of Armed Forces of the equal rank of General Pervez Musharraf have been discriminated in respect of equal chance of appointment as COAs.

 In the light of the above discussion, we have come to the conclusion that the questions raised in these petitions do not directly or indirectly relate to the enforcement of any of the fundamental rights conferred by Part-II, Chapter 1 of the Constitution as contemplated in Article 184(3) of the Constitution and consequently, the objection of the respondents regarding the maintainability of these petitions is upheld. [p. 588, 589] I,J & K