The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per G.H. Malik, J.

(a) Constitution of Pakistan (1973), Articles 37, 29, 30 & 199

The provision occurs in Chapter 2 of the Constitution relating to “Principles of Policy” and the status and scope of those principles are delineated by Articles 29 and 30 of the Constitution. Article 29 (1) provides:-

“The principles set-out in this Chapter shall be known as the principles of policy, and it is the responsibility of each organ and authority of the State, and of each person performing functions on behalf of an organ or authority of the State, to act in accordance with those Principle in so far as they relate to the functions of the organ or authority.”[p.8]A

A duty is, thus, cast on the organs and authorities to act in accordance with the principles of policy; but at the same time those principles have been made non-justiciable by Article 30 of the Constitution which provides:

(1) “The responsibility of deciding whether any action of an organ or authority of the State, or of a person performing functions on behalf of an organ or authority of the State, is in accordance with the principles of policy is that of the organ or authority of the State, or of the person concerned.

(2) The validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the principles of policy, and no action shall be lie against the State, any organ or authority of the State or any person on such ground.” [p.8, 9]B

These principles, have been described as “fundamentals to the governance of State” but they are not enforceable by any Court. Therefore, the question of creation of any right, vested or otherwise, in the petitioner by Article 37 of the Constitution does not arise. Mr. Akhund’s submission, however, was that because the separate district of Malir was created in pursuance of the provisions of Article 37, that Article in conjunction with the action taken in pursuance thereof ought to be taken as having created some right in petitioner. [p.9]C

The submission is misconceived because once an action is taken or a law promulgated by an organ or authority of the State in pursuance of the provisions of Article 37, it is that action or that law only which must be examined to see whether any right has thereby been created in any person. There is nothing in the Notification creating Malir District conferring any right on the petitioners.[p.9]D

It is clear from the above passage from Miss Benazir Bhutto’s case that the provisions of Article 37 and 38 are not directly enforceable but are enforceable indirectly as aids in interpretation of other provisions of the Constitution and of legislation. The rule however, is of no avail to the petitioners, because it does not appear that the notification creating the new district of Malir could be construed, even with the aid of Articles 3, 37 and 38 of the Constitution, as creating a right in the petitioners to be admitted to a medical college; and Mr. Akhund did not even attempt to show that it could be so construed. The argument, clearly, is not supported either by reason or by authority.[p.11]E

(b) Constitution of Pakistan (1973), Article 199
r/w Sindh Medical Colleges Act (V of 1987)—–S.3—–

It, thus, appears clear that while a candidate who attains a minimum standard prescribed by the prospectus is eligible to apply for admission to a medical college, his application of admission has to be processed in accordance with the rules and he becomes entitled to admission only upon being selected for admission in accordance with the rules. A distinction, thus, has been made between the right to apply and to be considered for admission to a medical college and the right to be admitted to a medical college, and it is clear that a candidate who attains the requisite qualifications and meets the conditions prescribed by the prospectus in entitled to apply for admission and to have his application considered in accordance with rules.

The question, then, is whether such a right can be termed a “vested right” . As stated hereinabove, a vested right is an immediate or a fixed right to present or future enjoyment and one that is not dependent on any event that is uncertain; in other words, a right which is not subject to any contingency. In the present case, the petitioners are permanent residents of and domiciled in Malir District and they, or at least five of them, have secured more than 50% marks in Intermediate Science (Pre-Medical ((Group) examination. They were, therefore, by virtue of the Rules of Admission contained in the Prospectus, eligible and entitled to apply for admission to a medical college and to have their applications considered according to the relevant rules. That right was not subject to any event or contingency. It was, therefore, a vested right. [p.13]G

The test, in determining whether an action or a decision complained of is reasonable is, therefore, whether and ordinary, prudent and reasonable person would have taken such an action or made such a decision. [p.19]M

The ordinary, prudent and reasonable person is, thus, expected to apply his mind to the question before him which means that he must take into consideration relevant facts and circumstances and arrive at a decision which is in consonance with logic, reason and accepted moral standards. [p.19]N

It would follow that which is unreasonable or arbitrary or capricious would necessarily be unjust.[p.19]P

(c) Constitution of Pakistan (1973), Articles 37, 38 & 199.

The facts, however, remains that the Government continues to allocate seats on the basis of quota for each district of the province ostensibly to provide weightage to those students who, for various reasons, are unable to attain the requisite standard to be able to compete with more able students from other district; and no reason has been advanced to justify the treatment of Malir differently. Therefore, on the basis that the district of Malir was created bona fide for advancement of its educational and other interests and on the assumption that quota system is necessary, no reason has been disclosed for issuance of the impugned notification; in fact, it appears to be thoroughly devoid of logic or reason.

In the circumstances, it is clear that the impugned notification was arbitrary and unreasonable because of lack of application of mind by the authorities who promulgated it to the question and because it appears it appears to have been a knee-jerk reaction rather than considered response to the events following its promulgation. It is also, in the words of Lord Diplock, “so outrageous in its defiance of logic” that no sensible or ordinary, prudent and reasonable person could have promulgated it.[p.22]Q

(d) Constitution of Pakistan (1973), Article 25

The basic or fundamental rule is that all persons, under like circumstances and conditions, shall be treated alike both in privileges conferred and in liabilities imposed. Thus, discrimination between persons or classes of persons similarly situated or circumstanced is prohibited or, in other words, class legislation is forbidden. It follows that the rule does not prohibit different laws or different treatment for those differently circumstanced and the State has the power to distinguish or classify persons or things and to make laws or rules applicable only to the persons or things falling within the particular class. However, a classification which is arbitrary or capricious and not founded on any rational basis or which has no rational nexus with the object sought to be achieved by the law or the rule is no classification. It must, therefore, be achieved by the law or the rule is no classification. It must, therefore, be achieved by the law or the rule is no classification. It must, therefore, be reasonable and rest upon a difference which is real as distinguished from one which is seeming, seeming, specious or fanciful.

Thus, classification would be reasonable and valid:-

(i) If it is based on intelligible differentia which distinguish persons or things that are grouped together from those that have been left out; and

(ii) If it has rational nexus with the object sought to be achieved by it.

“Intelligible differentia”, as stated in Inamur Rahman’s case (at page 588 of the report), means “an attribute by which a species is distinguished from all other species of the same genus, or, a distinguishing mark”.[p.24]R

(e) Constitution of Pakistan (1973), Article 199

It is true that it is not possible for the Courts to sit in judgment over the actions of the Government taken in pursuance of a policy; but the disability of the Courts to do so arises only if from materials disclosed it does not appear that the action taken was merely in colourable exercise of, or in abuse of, power of above of jurisdiction which, as held in Nasrin Fatima’s case, is synonymous with arbitrary action. Besides, it was not case of the Government that the impugned notification was issued in pursuance of any policy. On the contrary, its case was that the Notification was issued in consequence of notice of adjournment motion in the Provincial Assembly and comments in the press. The case of Farzand Ali is, therefore, of no assistance to it.[p.26]S

(f) Constitution of Pakistan (1973), Article 25, 199

Apart from the fact the argument was not supported by the cases relied upon by the learned Advocate-General, surely, it could not possibly have been argued that a “policy” which is ultra vires and which contravenes the provisions of Article 25 of the Constitution would be immune from challenge.[p.27]T