SC strikes down BA condition for contesting election of Assemblies

ISLAMABAD : A seven-member bench of the Supreme Court on Monday struck down the condition of graduation for candidates to contest elections of the Senate and National Assembly and all the four Provincial Assemblies declaring the provision void to Articles 17 and 25 of the Constitution.
The case was heard by the bench comprising Chief Justice Abdul Hameed Dogar, Justice Faqir Muhammad Khokhar, Justice Ejaz-ul-Hassan, Justice Moosa K. Leghari, Justice Ch.Ijaz Yousaf, Justice Syed Zawwar Hussain Jaffery and Syed Sakhi Hussain Bukhari at length and announced short order by allowing the constitution petition.
In its short order announced by the bench after an interval of more than two hours, the bench said, “For reasons to be recorded later, this petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 is allowed. The provisions of Article 8A of the Conduct of General Election Order, 2002 (Chief Executive’s Order No. 7 of 2002) and clause (cc) of subsection (1) of section 99 of the Representation of the People Act, 1976, which lays down that a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (parliament) or a Provincial Assembly unless he is at least a graduate possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974 or any other law for the time being in force are declared to be void prospectively on account of their being inconsistent with Articles 17 and 25 of the Constitution.”
Muhammad Nasir Mehmood of Faisalabad and Shameer Ahmed of Zahir Peer, district Rahim Yar Khan filed the constitution petition under Article 184 (3) of the Constitution.
Kamran Murtaza advocate representing the petitioners said that condition of graduation was imposed through ordinance by amending the Representation of peoples Act was only for general elections held in October 2002. So, the order was not in the field after the general elections of 2002, he said.
Earlier, Attorney General Malik Muhammad Qayyum on Friday informed the Supreme Court that about 97 per cent population of the country had been deprived of contesting elections which was contrary to the fundamental rights as guaranteed in various articles of the Constitution.
In his arguments, Malik Muhammad Qayyum opposed the condition of BA saying this restriction was a “discriminatory legislation” and gave various references in favour of the petition filed to strike down the restriction of BA for contesting election.
The condition of graduation will create a new class of rulers and “elite democracy” as a common voter who is not a graduate will not be able to take part in the election. Surprisingly he can cast vote but not contest election, the Attorney General said.
He pleaded that the condition will lead to an elite democracy and should be removed in the larger interest of the public.
The Chief Justice said that the condition of graduation was not included in Articles 62 and 63 which relates to the qualification and disqualification of a candidate to become member of the Parliament and provincial Assemblies.
Attorney General Malik Muhammad Qayyum appeared in the court on notice.
Deputy Attorney General Niaz Ahmed Rathor representing the Federation appeared before the court and did not oppose the petition of Nasir Mehmood and pleaded against the restriction of graduation terming it an ultra vires law.
Muhammad Aslam Khaki opposed the petition of Nasir Mehmood and said this condition should stay in the constitution for candidates as every job or profession requires qualification may be BA or more but a Parliamentarian should also be qualified whose basic job is legislation.
He also submitted a number of suggestions before the court to introduce condition of BA, FA or Matriculation for various areas by categorizing areas of the country.
Petitioners have raised a number of questions about the graduation condition, especially whether it has served any purpose in the last five years. They have contended that the law was made with mala fide intention and ulterior motive.
Both the petitioners have pleaded that the provisions of Section 99 (1) (CC) of the Representation of People Act, 1976 as well as Article 8 A of the Chief Executive Order No.17 of 2002 may be declared ultra vires to the Constitution and set aside.