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 32 are satisfied that a case for revisiting the judgment of this Court in PML (Q)’s case is made out. 23. The learned counsel for the petitioners contended that in view of the ratio laid down in the cases of Benazir Bhutto and Muhammad Nawaz Sharif (supra), the right to form or be a member of a political party enshrined in Article 17(2) of the Constitution included the right to form government and to contest election. According to him, Article 17(2) had two parts: one granted the right to a citizen to form or be a member of a political party, and the other placed a restriction on the right, in that, such a person was not in the service of Pakistan. On the contrary, Mr. Khaki drew support from the judgment in PML (Q)’s case and canvassed the proposition that to contest election, no doubt, was a fundamental right but this right was a qualified one. According to him, the fundamental right to participate in election was also subject to certain restrictions imposed by law as provided in Article 17 of the Constitution. He further submitted that if the impugned legislation was struck down, it would call for a fresh election of the Parliament and the Provincial Assemblies. Therefore, at least the petition ought to be amended by impleading the President and Members of the Parliament as parties to it. 24. In the case reported as Muhammad Yousuf v. State (2002 CLC 1130) the Supreme Court of Azad Jammu and Kashmir took the view that only such persons could enter a legislative body who were either matriculate or had equivalent qualification and the same would not be violative of Fundamental Right No.7 of the Azad Jammu & Kashmir Interim Constitution, 1974 (Act NO. VIII of 1974)
CONSTITUTION PETITION NO. 1 OF 2008 AND CMA NO. 994 TO 996 OF 2008 33 (corresponding of Article 17 of our Constitution). At paragraphs 18, 19 and 21 of the judgment, the Court held as under: - “18. From the perusal of Fundamental Right No.7 it would appear that every State Subject has been given right to form an association of his choice. Such association would continue unless its activities are curtailed through reasonable restriction imposed by law in the interest of morality and public order. The argument that right to form an association automatically confers a right to contest elections for Legislative Assembly cannot be accepted. In case, titled Chief Secretary/Referring Authority, Azad Jammu and Kashmir Government v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 Sc (AJ&K) 95, the learned Chief Justice of the time in his separate note opined in Para. 65 at page 129 as under:- “…… But on the other hand if the Ordinance provides disqualification which is a mere domestic wall to bar entry in the elective body it would not come within the mischief of fundamental rights.” 19. Through the present Ordinance only the entry of such persons in the legislative body has been made possible who are either matriculate or have equivalent qualification. Such restriction in the light of the above referred observations would not come within the mischief of Fundamental Right No. 7. 21. As we all know the right to participate in election has been made available to the State Subjects by a statute and not under any Fundamental Right conferred by the Constitution Act. The Constitution has authorized the Legislature to enact the law relating to the elections of the Legislative Assembly. The legislative powers can be exercised either by the Assembly or under section 41 of the Constitution Act by the President. The Ordinance promulgated by the President has the same force and effect as an Act of the Assembly. The President in the present case has competently promulgated the underchallenge Ordinance, therefore, it cannot be said that it lacks legal competence. Therefore, in the light of the above discussion, the arguments of the learned counsel for the appellant is misconceived that the impugned legislation is opposed to Fundamental Right No.7.” 25. The learned Attorney General for Pakistan submitted that the impugned educational qualification was against the concept of political justice enshrined in the Objectives Resolution which, by virtue of Article 2A, was now a substantive part of the Constitution.
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MR. JUSTICE ABDUL HAMEED DOGAR, HCJ MR. JUSTICE FAQIR ...

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