The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Muhammad Haleem, C. J.

(a) Constitution of Pakistan (1973), Arts. 2(c), 7, 8, 184(3), 270-A(1), 17, 16, 15, 18, 19, 31, 63(g) & 199(1)(c)-

From the consideration of these cases, it is clear that the vires of an Act can be challenged if its provisions are ex facie discriminatory in which case actual proof of discriminatory treatment but is capable of being administered discriminately then the party challenging it has to show that it has actually been administered in a partial, unjust and oppressive manner. On this view of the matter, the contention of the learned Attorney-General is devoid of any merit
[p. 485] E.

Having held so, the question which now requires to be considered is whether section 3-B of the Act is ex facie discriminatory as by reason of non-registration of the party its principal activity namely “to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election” is invaded to such an extent as to destroy its political existence. Reading subsections (1) and (6) of section 3-B of the Act together the conclusion is irresistible that in the case of non-registration the penalty automatically follows and the political party suffers its political extermination. The learned Attorney-General, in reply to it, referred to section 3-C of Act and contended that if the party had not applied for registration even then on the basis of the questionnaire issued by the Election Commission and the answers given to it, the party could be eligible to participate in the forthcoming elections provided the Election Commission was satisfied that it fulfilled the requirements of subsection (3) of section 3-B of the Act.
[p. 485-486] F.

To me it appears that the manner in which section 3-C is worded is, in effect, an application of subsection (3) of section 3-B again leaving the matter of participation of the political party in the election to the satisfaction of the Election Commission who may, in its discretion, either allow or refuse its participation. Besides, section 3-C of the Act was enacted for a limited purpose, that is, for the forthcoming elections and those not having been held, it outlived its purpose and is now no longer of any effect, and by no stretch of imagination it negates the provisions of section 3-B or provides an alternative for non-registration under that section. This being so, it cannot be doubted that the petitioner is an “aggrieved party” as contended by the learned counsel for the petitioner. [p. 486] G.

Before I proceed to examine this question, it would be pertinent to refer to the legislative history of sub-Article 184(3). In the 1956 Constitution it found its place as a Fundamental Right in Article 22 of the Constitution. [p. 486] H.

Therefore, there can be no doubt that when the impugned legislation by reference to its provisions is ex facie violative of Fundamental Rights of an individual or political parties or associations or unions, proceedings lie for the enforcement of those rights irrespective of the fact whether any prejudicial order has been passed by the Executive under the law ass the constitution treats the Fundamental Rights as superior to ordinary legislation and for that reason sub-Article (1) and (2) of Article 8 of the Constitution have been enacted which clearly reflect the object and intention of the framers of the Constitution, that is, to keep the Fundamental Rights at a high pedestal and to save their enjoyment from legislative infractions. Sub-Article (1) of Article 8 lays down that any law in so far as it is inconsistent with the rights conferred by this Chapter shall, to the extent of such inconsistency, be void, this could not have been without a purpose our to preserve and protect the Fundamental Rights. Sub-Article (2) of Article 8 places a restriction on the Legislature not to make law which take away or abridges the rights so conferred, and any law made in contravention of this clause shall to the extent of such contravention, be void, Article 199(1)(c) authorises the High Court to enforce the Fundamental Rights of an aggrieved person and to declare that so much of the law which is inconsistent with the Fundamental Rights shall be void. Therefore, there is the power to declare the law to be void and the power to enforce the Fundamental Rights which are violated by the law itself, Article 184(3) of the Constitution empowers the Supreme Court to enforce the Fundamental Rights where the question of public importance arises in relation thereto. And if looked at from this angle it is hardly of any importance whether the Executive has passed a takes place by the operation of the law itself. In this context what would be relevant would be the language of the provisions of the impugned Act itself. It will then not be a question of the Court merely granting a declaration as to the validity or invalidity of law in the abstract. Reference in this connection may be made to K. K. Kochunni v. State of Madras, A I R 1959 S C 725, wherein at page 731, it was held: [p. 483] C.

Obviously, there was no independent consideration of Article 184(3), and the finding of this Court specifically related to the objections raised. In my analysis of this provisions, I have held that as this provision is open-ended, the proceedings could either be maintained by an individual whose fundamental rights are infracted or by a person bona fide alleging infracting of the fundamental rights of a class or a group of persons, as there is no rigid incorporation of the notion of “aggrieved person”. Therefore, the dictum laid down in this case and so also in the case of Manzoor Elahi cannot be read as in conflict with my interpretation of this provision. [p. 492-493] M.

As a result of the above discussion, I am of the view that the learned Attorney-General is not Correct in contending that it is only enforcement of the fundamental rights under Article 184(3) of the Constitution as by reason of the fact that the two provisions are co terminus. [p. 493] N.

It is regrettable to note that the High Court has surrendered the management of the case to the sweet will of the counsel who was taking dates at his convenience without making any serious effort get the matter admitted to regular hearing, and the High Court, in turn, acquiescing in it, dillydallying and shirking from its duty towards a pending cause by accommodating the counsel. Therefore, there was, for a period of a year and eight months a failure on the part of the High Court to pass any order either admitting the petition to regular hearing or rejecting it in limine, and, for that matter, even on the date of hearing of this petition it was not known as to whether it was admitted or not. On these facts, the learned Attorney General has invoked the principle of practice as to the choice of the forum and so also the vested right of the opposite party to come in appeal to this Court as material considerations for this Court to keep its hands off from hearing the petition. As the High Court was not legally seized of the dispute as a result of an order admitting it, it remains to be seen to what extent the practice can be followed which without doubt is salutary and of long standing. [p. 494-495] O.

As to the choice of the forum, it is no doubt correct that ordinarily but that principle is not inviolable and genuine exceptions can exist to take it out from that practice such as in the present case where there was a denial of justice as a result of the proceedings being dilatory.

As the human right norm is higher than the law then any violation and its consequent enforcement can only be controlled by an inbuilt limitation in the provision itself. A rule of practice which has received recognition as a principle of law is not higher than the norm and the machinery for its enforcement, and, therefore, it cannot control judicial power so as to stultify it until, of course, the petitioner has herself, in the strict sense, elected to seek her remedy from a Court of lower hierarchy exercising concurrent jurisdiction which is not the case here. The reason is salutary that at one and the same time the petitioner cannot be allowed to invoke the two forums in regard to the same relief. She has to choose one or the other. However, there can also be an abuse of this practice if there is an indiscriminate filing of petitions by persons motivated to stultify the exercise of judicial power under Article 184(3) of the Constitution. I do not see how then the practice can be strictly adhered to deny to the citizen the remedy under this Article for seeking the enforcement of his fundamental rights. The measure of applicability of the practice has to be judged in the light of the particular facts and circumstances of each case. [p. 496] P.

The object of promulgating this Act was to remove the ban in order to enable the people to form political parties and to seek election with the support of political parties as before the Act there was a ban on the formation of a political party by reason of the political Organisations (Prohibition of Unregulated Activity) Ordinance, 1962, and also the prohibition contained in Article 173 of the Constitution against a person holding himself out as a member of a political party or seeking support from such political party at the time of election without the permission of the Central Legislature. [p. 466] A.

I do not see how the proposition in Asma Jillani’s case strengthens the argument of the Attorney-General to the requirement of an “aggrieved person” when the question to be decided to be decided is whether the impugned legislation infringes the Fundamental Right of the petitioner. The infractions alleged cannot be regarded as seeking declaration in the air or asking the Court to decide, in abstract, and for that matter hypothetical or contingent questions. [p. 481] B.

Petition accepted.

Advocate for the Petitioner:
Yahya Bakhtiar, Senior Advocate Supreme Court, Aitzaz Ahsan, Advocate Supreme Court, S. Iftikhar Ahmed Gilani, Advocate Supreme Court M. A. Siddiqi, Advocate-on-Record.

Advocate for the Respondent No.1.
Ali Ahmad Fazeel, Attorney-General for Pakistan, Sh. Ghias Muhammad, Senior Advocate Supreme Court, Muhammad Ali Sayeed, Senior Advocate Supreme Court, Tanvir Ahmed Khan, Addl. Advocate-on-Record General, Punjab, Aftab Farrukh, Senior Advocate Supreme Court, Rashid Akhund, Advocate Supreme Court and Fazale Hussain, Advocate-on-Record.

Advocate for the Respondent No.2.
Malik M. Qayyum, Dy. A.-G., Sajjad Ahmed Sipra, Dy. A.-G. and Gh. Fazale Hussain, Advocate-on-Record.

Khalil Ramedy, A.-G. Punjab, Rao M. Yousaf Khan, Advocate-on-Record, Wajihuddin Ahmad, A.-G. Sind, Bashirullah Khan, Addl. A.-G. N.-W.F.P. and Yakub K. Eusafzai, A.-G. Baluchistan on Court Notice.

Dates of hearing: 1st, 2nd, 3rd, 6th, 7th, 8th, 13th, 14th, 15th, 16th and 17th February, 1988.