The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Tanzil-ur-Rahman Actg. C.J.

(a) Constitution of Pakistan (1973), Articles 189 AND 8:

A law to be valid must be in conformity with the Constitutional norm. If a statute does not conform to the constitutional norm, and transgresses the limits prescribed by it, the statute is ultra vires the Constitution and thus invalid. H.M. Searvai, a famous writer and author of “Constitution of India”, published in 1975 at pages 54-57 has ably summed up certain rules in this regard, as under:–

(1) There is a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; and the onus to prove that it is unconstitutional lies upon the person who challenges it.

(2) Where the validity of a stature is questioned and there are two interpretations, one of which would make the law valid and the other void, the former must be preferred and the validity of the law upheld.

(3) The Court will not decide constitutional questions if a case is capable of being decided on other grounds.

(4) The Court will not decide a larger constitutional question than is required by the case before it.

(5) The Court will not hear an objection as to the constitutionality of a law by a person whose rights are not affected by it.

(6) A statute cannot be declared unconstitutional merely because in the opinion of the Court it violates one or more of the principles of liberty, or the spirit of the Constitution, unless such principles and that spirit are found in the terms of the Constitution.

(7) In assessing the constitutionality of a statute, the Court is not concerned with the motives, bona fides or mala fides of the legislature; the Court is not concerned with the wisdom or unwisdom, the justice or injustice of the law. If that which is passed into law is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a Court may think of it.

(8) Ordinarily, Courts should not pronounce on the validity of an Act or part of an Act, which has not been brought into force, because till then the question of validity would be merely academic.” (pp. 48-49 Cf. “Role of Supreme Court in Indian Constitution” by M.P. Dube, New Delhi, 1987).

If any Law, Rule or Regulation, comes into conflict with any fundamental right guaranteed by the Constitution, the same will be ultra vires the provisions of the Constitution under which the fundamental right has been guaranteed, which seems to have been violated by that law, Rule or regulation, as specifically provided under Article 8 of our Constitution. The relevant Rule appearing on page 3 of the Prospectus in so far as it discriminates admission on the ground of sex is liable to be declared as void and it is so declared by us. [p. 356] I & J.

Rules 1 and 2 falling in Chapter 11 of the Prospectus at page 3 relating to admission, issued by Health Department, Government of Sindh for the academic year 1989-90 for the admission of 1st year M.B.B.S. to the extent of allocation of seats for boys and girls into the co-education medical colleges of Sindh have been framed without lawful authority and are of no legal effect and the above-said Rules 1 and 2 are struck down to the extent of allocating the seats on sex basis, under Article 8 of the Constitution of the Islamic Republic of Pakistan. The respondents in the 7 petitions filed by female students, (the petitioners of Group ‘B’) are directed to grant admission to them in the 1st Year M.B.B.S. Class on the basis of open merit list in any of the co-education medical colleges concerned, if entitled. [p. 361] V

Order accordingly.

Advocate for the Petitioners (in C.Ps. Nos.D-168 to D-170, D-241 of 1990)

Hyder Raza Naqvi .

Advocate for the Petitioner (in C.P. No.D-176 of 1990).

A. Ghaffar Siddiqui.

Advocate for the Petitioner (in C.P.No.D-206 of 1990).

Mrs. Rasheeda Patel.

Advocate for the Petitioner (in C.P. No. D- 225 of 1990).

Abu Tahir Muhammad.

Advocate for the Petitioners (in C.P. No. D-258 of 1990).

Obaidur Rahman.

Advocate for the Petitioner (in C.P. No. D-265 of 1990).

Obaidur Rahman.

Advocate for the Petitioner (in C.Ps. Nos. D-274 to D-278) of 1990)

Obaidur Rahman and Muhammad Tasnim.

Advocate for the Respondents (in all Civil Petitioners).

Abdul Hafeez Lakho A. -G.

Date of hearing: 28th and 29th March, 1990.