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

CONSTITUTION PETITION NO. 1 OF 2008
AND CMA NO. 994 TO 996 OF 2008 3
was allowed to address the Court on the issues involved in the
present Constitution Petition.
3. The case of the petitioners is that they are the citizens of
Pakistan and by the promulgation of Article 8-A of the Conduct of
General Election Order, 2002 and clause (cc) of subsection (1) of
section 99 of the Representation of the People Act, 1976 they have
been deprived of their Fundamental right to contest election and to
form government as interpreted by this Court in various judgments as
a natural corollary of the right to form or be a member of a political
party guaranteed under Article 17(2) of the Constitution. The learned
counsel for the petitioners has made the following submissions: -
(1) The fundamental right enshrined in Article 17 of the
Constitution is subject to “any reasonable restrictions
imposed by law in the interest of the sovereignty or
integrity of Pakistan or public order,” but the condition of
graduation qualification for contesting election does not
fall within the ambit of the above controlling clause
inasmuch as the said qualification cannot be said to have
been imposed in the interest of the “sovereignty or
integrity of Pakistan, public order or morality.”
(2) By laying down the qualification in terms of education, an
elitist class has been created. The acquisition of education
is directly related to, and dependent upon the prevailing
conditions in which a person may find himself. Thus,
educational qualification for contesting election
constitutes discrimination, which is prohibited under
Article 25 of the Constitution and is, therefore, liable to be
struck down.
(3) The impugned qualification is not a reasonable
classification within the scope of Article 25 as interpreted
in I.A. Sharwani’s case (1991 SCMR 1041).