The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Saleem Akhtar, J.

(a) Constitution of Pakistan (1973), Article 7, 8 to 28

The first challenge to the Ordinance is on ground of equality before law as guaranteed by Article 25 of the Constitution which reads as follows:-
“25. — (1) All citizens are equal before law and are entitled to
equal protection of law.

(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.”

This Article finds place in Part II of the Constitution which contains provisions relating to fundamental rights and principles of policy. Article 7 defines the “State” for purposes of Part II of the Constitutiion. According to it unless the context otherwise requires the State means “the Federal Government, Majlis-e-Shoora (Parliament), a Provincial Government, a Provincial Assembly and such other local authorites in Pakistan as are by law empowered to impose any tax or cess”. Therefore, purposes of applying fundamental rights guaranteed under the Constitution wherever the word “State” is used, it shall include all the aforestated agencies and functionaries specified in Article 7. Article 8(1) commands that “any law, custom or usage having the force of law shall in so far it is inconsistent with the fundamental rights will be void. Article 8(2) further commands and prohibits the State as fefined in Article 7 from enacting any law which takes away or abridges fundamental rights guaranteed and any law made in contravention of this clause shall to the extent of consistency/contravention be avoid. Therefore, Article 8(1) and (2) relates to the existing laws as well as the laws which may be enacted after the promulgation of the Constitution. sub-clause (3)(a) and (b) excludes the enactments and persons from the operation of Article 8(1) and (2), but it is not relevant for the present controversy. However, Article 8(4) further provides that the laws saved under clause 3(b) shall be brought in conformity with the fundamental rights within a period of two years from the commencing day or such period as may be extended by the Legislature. Article 8(5) further provides that the rights conferred by Chapter 1 of Part II shall not be suspended except as provided by the Constitution. Article 25 is one of the fundamental rights guaranteed by the Constitution and hold a pivotal position. It also guarantees an important right of all citizens to be treated equally before law without any discrimination and to claimequal protection of law without any distinction. It prohibits discrimination on the basis of sex, but permits the State to make any special provision for the protection of women and children. To begin with the impugned Ordinance does not fall within the provisiion of Article 25(2) and (3) nor it has been saved under Article 8(3)(b).[p. 354, 355]C,D,E,F.

As the judgment from Indian jurisdiction have been considered in the aforestated judgments of this Court, we would not refer to them here. In all these authorities there seems to be a unanimity of view that although class legislation has been forbidden, it permits reasonable classifiction for the purpose of legislation. Permissible classification is allowed provided the classification is founded on intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group and such classification and defferentia must be (based) on rational relation to the objects sought to be achieved by the Act. There should be a nexus between the classification and the objects of the Act. This principle symbolises that persons or things similarly situated cannot be distinguished or discriminated while making or applying the law. It has to be applied equally to persons situated similarly and in the same situation. Any law made or action taken in violation of these principles in liable to be struck down. If the law clothes any statutory authority or functionary with unguided and arbitrary power enabling it to administer in a discriminatory manner, such law will violate eqauality clause. Thus, the substantive and proceedural law and action taken under it can be challenged as violative of Articles 8 and 25.[p. 359]J.

Where the statutory functionary acts mala fide or in a partial, unjust, oppressive or discriminatory manner, his action can be challenged for violation of equality clause of the Constitution.[p. 357]H.

Administration of justice —-

The special requirements of those areas as mentioned in the Preamble to the Ordinance could not be justifiably explained by the learned Advocate-General because mere existence of a tribal society or a tribal culture does not by itself create a stumbling block in the way of enforcing ordinary procedures of criminal law, trial and detention which is enforceable in the entire country.[p. 361]L