MR. JUSTICE ABDUL HAMEED DOGAR, HCJ MR. JUSTICE FAQIR ...

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CONSTITUTION PETITION NO. 1 OF 2008 AND CMA NO. 994 TO 996 OF 2008 22 recapitulated the events of the Pakistan’s recent political history in great detail but paid a little attention to the question of enforcement of the fundamental rights. He contended that the Court sufficed by making the following discussion on the issue: - “Article 17 clearly allows a citizen to have the right to form associations or unions subject to any reasonable restrictions imposed by law. Similarly, every citizen not being in the service of Pakistan, has the right to form or be a member of political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan. In this context, we are reminded of the following observations made by this Court in Mian Muhammad Nawaz Sharif’s case at page 558 while interpreting Article 17 of the Constitution: - “This approach was again in evidence in the Symbol’s case (PLD 1989 SC 66) wherein it was observed that the ‘Fundamental Right’ conferred by Article 17(2) of the Constitution whereby every citizen has been given ‘the right’ to form or to be a member of a political party comprises the right to participate in and contest and election.” The learned counsel submitted that having noted the above interpretation of Article 17, the Court held as under: - “There is no cavil with the proposition laid down by this Court that every citizen has a right to contest election but the principle enunciated therein does not confer an unbridled right on every citizen to contest an election. The right to contest an election is subject to the provisions of the Constitution and the law and only those citizens are eligible to contest election who possess the qualifications contained in Article 62 and the law including the law made under Article 62(i) and do not suffer from disqualifications laid down in Article 63 of the Constitution and the law.” 17. The learned counsel for the petitioners submitted that soon after the decision of PML (Q)’s case, Article 17 again fell for consideration in Javed Jabbar’s case where the Court returned a different finding on somewhat similar issues. It may be recalled that by amending the Chief Executive’s Order No. 7 of 2002, Article 8-AA
CONSTITUTION PETITION NO. 1 OF 2008 AND CMA NO. 994 TO 996 OF 2008 23 was added providing therein that a person who had unsuccessfully contested election to the National or a Provincial Assembly was not eligible to contest the Senate election. For facility of reference, Article 8-AA of the Chief Executive’s Order No. 7 of 2002 is reproduced below: - “8-AA. Disqualification from being a member of the Senate. – Notwithstanding anything contained in the Constitution of the Islamic Republic of Pakistan, 1973, the Senate (Election) Act, 1975 (LI of 1975), the Representation of the People Act, 1976 (LXXXV of 1976), or any other law for the time being in force, a person shall be disqualified from being elected or chosen as, and from being, a member of the Senate if, having been a candidate for Election to the National Assembly or a Provincial Assembly at the elections held under this Order he has not been elected to such Assembly.” The above disqualification for the Senate election was challenged before this Court in Constitution Petitions No. 38 of 2002 etc. in the case of Javed Jabbar (supra) and the Court held the disqualification attributable to defeat in consequence of lawful act of contesting election of the National or a Provincial Assembly as discriminatory in nature and violative of Article 25 of the Constitution. At Para 22 of the judgment, the Court held as under: - “22. Adverting to the second common contention we find that Article 8-AA of the Order not only offends the provisions of Article 25 of the Constitution, which guarantees that all citizens are equal before law, but is also unjust as its promulgation after completion of the process of general elections has left the petitioners high and dry. Participation in an election is a positive act which advances the cause of democracy and flows from the fundamental right of a person to contest an election which is enshrined in the Constitution and acknowledged in the Statutes on the subject. It is indeed unfair to sideline a candidate defeated in the general elections through a belatedly prescribed disqualification which is discriminatory in nature, militates against the spirit of democracy and tends to frustrate the process of Senate election. The amending Order was promulgated after
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MR. JUSTICE ABDUL HAMEED DOGAR, HCJ MR. JUSTICE FAQIR ...

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