P L D 2008 Lahore 297 (PLP)

SAYED ZAHID HUSSAIN, C.J.

Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, a declaration is sought that the seats reserved for women in the National and Provincial Assemblies as a consequence of Constitutional amendments may be declared as un-Constitutional, unlawful and un-Islamic. Since the import and effect of provisions of Article 51 of the Constitution of the Islamic Republic of Pakistan, 1973 is sought to be assailed, notice, as contemplated by Order XXVII-A of the Civil Procedure Code, 1908, was issued to the Law Officer of the Federation in response to which Mr. Qamar Zaman Qureshi, Deputy Attorney. General for Pakistan has appeared, who opposes and contests the petition.

2. Mst. Zubia Ajaz petitioner is an advocate, who claims to be the Secretary of Jurist Forum for Human Rights. Mr. Tariq Aziz, Advocate, who represents her, has mainly argued that since there is no hindrance or bar for women to contest the election on general seats, reservation of seats for them is contrary to the provisions of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. It is contended that the mode of nomination is also contrary to the principle of equality as, according to him, women belonging to mostly VIPs and leading politicians families are nominated. It is pleaded that "the selection of the women is just a burden on the State exchequer and waste of the revenue of the public which can be utilized for other useful purposes like health, education and poverty elevation" (alleviation). He cites Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others (2001 SCMR 1161), Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 Supreme Court 1445), Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 Supreme Court 341) and Abdul Baqi and others v. Muhammad Akram and others (PLD 2003 Supreme Court 163).

3. The learned Deputy Attorney General for Pakistan has, on the other hand, brought forth a chart indicating that seats for women had even been reserved in the Constitution of the Islamic Republic of Pakistan, 1956 (Article 44), in the Constitution of the Islamic Republic of Pakistan, 1962 (Article 20) and in the original Constitution of the Islamic Republic of Pakistan, 1973 having undergone changes subsequently. It is contended by him that the law makers had in their wisdom thought of reserving seats for women for their representation in the Assemblies which cannot be regarded either as un-Constitutional, unlawful or un-Islamic on any ground whatsoever. According to him, amendments made in the Constitution including Article 51 of the Constitution of the Islamic Republic of Pakistan, 1973 since have been validated, no challenge can be thrown to the same. Reference has been made to Mahmood Khan Achakazi v. Federation of Pakistan and others (PLD 1997 Supreme Court 426), Syed Zafar Ali Shah and others v. General, Pervez Musharaf, Chief Executive of Pakistan and others (PLD 2000 SC 869), Pakistan Lawyers Forum and others v. Federation of Pakistan and others (PLD 2005 SC 719) and Tika Iqbal Muhammad Khan and others v. General Pervez Musharaf and others (PLD 2008 SC 178).

4. On consideration of the matter in the light of the Constitutional progression since after the enactment of the Constitution of the Islamic Republic of Pakistan, 1956, I find the petition lacking any substance or merit. The women are an important and vital segment of the society whose contribution in various spheres of life cannot be undermined. That may have been the rationale for reserving some seats in the National and Provincial Assemblies so that they could contribute in the legislative field as well. Adverting to the contention of the petitioner as to provisions of Article 25(2) of the Constitution of the Islamic Republic of Pakistan, 1973 that "there shall be no discrimination on the basis of sex alone", reference may aptly be made to clause (3) of the same provision of the Constitution of the Islamic Republic of Pakistan, 1973 which ordains that "Nothing in this Article shall prevent the State from making any special provision for the protection of women and children". Likewise is the import of clause (2) of Article 26 of the Constitution of the Islamic Republic of Pakistan 1973. In the Chapter of principles of policy highlighted in the Constitution of the Islamic Republic of Pakistan, 1973, some provisions are of relevance such as Article 32 which obligates the State for the special representation of peasants, workers and women in the local Government institutions. Article 34 provides that steps shall be taken to ensure full participation of women in all spheres of national life. Taken in this context the challenge to reservation of seats for women and increase from time to time in its number cannot be regarded contrary to the scheme, spirit and rationale of the Constitution. In the Constitutional scheme itself, special provisions for the safeguard of women have been made enabling them to participate and make contribution in all walks of life. It is correct that there is no embargo for their participation and contesting the election on general seats. As a matter of fact some lady members have adorned the Houses by winning the election against general seats but that does not mean that the seats cannot be reserved for them in the Assemblies for making' available better opportunities of representation to them. For instance in the neighbouring country India, the President of India has been empowered to make nominations in the Council for States under Article 80 of their Constitution. Reknowned personalities, ladies like Nargis Dutt, Vyjantimala, Lata Mangeshkar and Shabana Azmi were the nominees as Members of Rajya Sabha. In our country the personalities so reaching the Assemblies have not merely adorned the Houses but have performed significantly and made substantial contributions. It is a matter of common knowledge that the first woman Prime Minister of this country Mohtaram Benazir Bhutto (Shaheed) and the first speaker of the National Assembly Dr. Fehmida Mirza, in the Muslim world belong to our homeland. The Conduct of General Elections Order, 2002 itself prescribes the manner in which the seats reserved for women are to be filled. It is election through proportional representation systems of political parties i.e. Article 5 and 8F of the Order. Their election, thus, takes place in accordance with the manner and procedure laid down by law.

5. The principle laid down in the context of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 in Azizullah Memon's case cannot be stretched to the instant case as in that case the vires of Criminal Law (Special Provisions) Ordinance, 1968 had been assailed whereas in the instant case the seats for women have been reserved by a Constitutional provision (Article 51). There can be no cavil to the general proposition as to equality of citizens and the concept of reasonable classification. The cases relating to reservation of seats for admission to various disciplines in the educational institutions cannot be aptly invoked. Even the precedents in Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others (2001 SCMR 1161) and Abdul Baqi and others v. Muhammad Akram and others PLD 2003 Supreme Court 163) are also of no relevance to the instant case. In these cases also exception for disable persons, students domiciled in FATA and underdeveloped districts such as Azad Kashmir and northern areas was approved.

6. So far as the contention about their perks and privileges is concerned, it may be observed that once having become Member of the Assembly they, of course, are entitled to certain perks, privileges and allowances under the law which cannot be considered as mere wastage of resources. In view of the above, the petition being without merit is dismissed accordingly. M.H. /Z-7/L Petition dismissed.