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 38 26. The learned counsel for the petitioners stated that the impugned educational qualification was neither part of the Constitution nor did it fulfil the criteria laid down in Article 62 (i) or Article 63(s) of the Constitution. The law providing qualification/ disqualification has to be enacted by the Majlis-e-Shoora (Parliament). Therefore, the Chief Executive’s Order No. 7 of 2002 was invalid having not been competently legislated by the Parliament. On the other hand, Mr. Khaki, the intervener, submitted that Article 62 of the Constitution provided qualifications for membership of the Majlise-Shoora. Under clause (i) of the said Article, it is provided that a person is not qualified to be elected or chosen as a member of Majlise-Shoora (Parliament) unless he possesses such other qualifications as may be prescribed by Act of Majlis-e-Shoora. Thus, the impugned qualification falls within the purview of Article 62(i) of the Constitution. We have deliberated on this aspect of the matter. We find that the objection of the learned counsel for the petitioners that the impugned educational qualification was not competently legislated is not tenable, inasmuch as it was also added by means of clause (cc) of subsection (1) of section 99 of the Representation of the People Act, 1976. 27. The learned counsel for the petitioners vehemently contended that the qualifications laid down in Article 62 of the Constitution were not subject to acquisition, i.e., they could not be acquired by human effort and were in the nature or category of inborn or inherent traits. Therefore, the impugned graduation qualification was not valid. It was contended that the impugned
CONSTITUTION PETITION NO. 1 OF 2008 AND CMA NO. 994 TO 996 OF 2008 39 qualification was also against the Injunctions of Islam under which the only test was “Taqwa”. Moreover, the wisdom or knowledge was not always subject to any degree from any institution. Wise but uneducated people abounded everywhere. The Holy Prophet Muhammad (SAW) was an “Ummi” (a person who did not know how to read or write). On the other hand, Mr. Khaki contended that there were two characteristics: one, which could not be changed by human effort, e.g., race, colour, complexion etc., the other, which could be changed by human effort, e.g., poverty, literacy, etc. According to him, education was a trait which could be acquired, hence the same was a valid qualification. He submitted that the Prophet Muhammad (SAW) in the Last Sermon (Khutba Hijjat-ul-wida) specifically prohibited discrimination on the basis of colour, region, etc., which could not be changed by human effort. He submitted that the discrimination on the basis of education was in line with the Declaration of Allah (SWT) contained in verse of the Holy Quran which says– “Are those equal, those who know and those who do not know? It is those who are endued with understanding that receive admonition.” [Surah Al-Zumar (39 : 9)] He also submitted that in the Islamic dispensation a Bedouin would not be a member of the Majlis-e-Shoora. He further submitted that in Shariah, Al-Hukam i.e. law was framed for general application. In the sphere of modern law, interpretation of the Constitution was entrusted to highly qualified persons. He stated that casting of a vote was a right, but becoming a member was a duty. He further submitted that different criteria in respect of age etc., for voters and
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MR. JUSTICE ABDUL HAMEED DOGAR, HCJ MR. JUSTICE FAQIR ...

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