P L D 1995 Karachi 56 (PLP)

NAZIM HUSSAIN SIDDIQUI, J.‑‑The case of the petitioner is that abolition of women reserved seats is in violation of fundamental right guaranteed under Articles 3, 25, 27 and 34 of the Constitution of Islamic Republic of Pakistan she, therefore, has prayed for the following reliefs:‑‑‑ (a) To direct the respondent to revive the Women Reserved Seats at the Assemblies as vested right had accrued and settled vide Article 51(4j of the Constitution of Pakistan, as they are not subjected to be defeated or cancelled but it is equitable for the respondent to recognize and protect. (b) To direct the respondent to revive the Women Reserved Seats at the Assemblies, as the same is Arbitrary, injustice and against Public Policy. (c) To direct the respondent to revive the reserved seats at the Assemblies and elect on the basis of separate electorates as women constitute 52 per cent. of the population. (d) That respondent be restrained from conducting election on 6th and 9th of October, 1993 till the final disposal of this petition. (e) Any other relief or order as appears possible which this Hon'ble Court may deem fit and proper under the circumstances of this petition. It is contended on behalf of the petitioner that Women Seats have been abolished by discriminatory legislation and shall, keeping in view the principles of Sharia, the universal declaration of Human Rights, and the fundamental rights guaranteed in the Constitution, be revived forthwith, Also it is urged that the Constitution remained in abeyance from 5th July 1977 until 29th December, 1985 due to promulgation of Martial Law and this period is to be excluded, while counting the period, provided in clause (4) of Article 51 of the Constitution, which is as follows:‑‑‑ "Until the expiration of ,a period of ten years from the commencing day or the holding of the (third) general election to the National Assembly, whichever occurs later, (twenty seats) in addition to the number of seats referred to in clause (1) shall be reserved for women and allocated to the Provinces in accordance with the Constitution and law." We have considered the above contentions and are of the view that they are devoid of any force. The Constitution came into force on 12th April, 1973 and the period of 10 years expired on 11th April, 1983. On 5th July, 1977 Martial Law was promulgated and Constitution was‑ kept in abeyance till 29th December, 1985. In the matter reported in PLD 1991 Journal 76 learned Chief Election Commissioner, while dealing this point held that "once time for the purpose of Article 51 of the Constitution had started running it did not stop". We also hold the same view. Article 51(3) provides that the seats in the National Assembly shall be allocated to each Province, the Federally Administered Tribal Areas and the Federal Capital on the basis of Population in accordance with the last preceding census officially published. It appears that framers of the Constitution, keeping in view the social condition prevailing in the country, in order to provide Representation to the Women in the National Assembly under Article 51(4) reserved seats for them. Probably the idea behind this was that with the passage of time representation vi women by special protection would not necessary after 10 years or after holding of the 3rd (Originally Second) General Election, whichever occurs later. In fact the word "second" was replaced by "third" by section 3 the Constitution (Eighth Amendment) Act, 1985. The, period of 10 years, as stated above, expired in 19133 and Three General Elections were held in 19'17, 1985 and 1988. A5 per Article 270‑B, the Elections held in 1977 are to be deemed to he held under the Constitution‑ After the General election held in 198h the special provisions of Article 51(4) expired. It is noted that the National Assembly elected in 1988 and thereafter in 1990 neither extended the time of protection and nor amended the particular Constitution provisions, therefore, the Special Protection given by the Constitution to the representation of woman lapsed. The point relevant for the purpose of decision of this petition is whether this Court, itself being a creature of the Constitution, can add or amend the Constitution, and whether this Court should not undertake examination of the theoretical academic questions nor should ordinarily look for anomalies in the Constitution with a view to suggest the Parliament amendment or improvement in the Constitution. Above points came into consideration before the Hon'ble Supreme Court in the case reported Hakim Khan and 3 others v. Government of Pakistan PLD 1992 SC

595. Shafiur Rahman, J. at page No. 634 dealing with this aspect of matter observed as follows:‑‑‑ "The Court's primary duty is to adjudicate by reference to positive law in a manner to lend certainty, clarity and precision to the application of law to concrete questions of law and fact necessarily required to be decided. The Court should not undertake examination of theoretical academic question nor should ordinarily look for anomalies in the Constitution with a view to suggest to Parliament amendment or improvement in the Constitution. If the introduction of Article 2A of the Constitution as a substantive provision of the Constitution does not by itself authorise the Court to adopt it as a test of repugnancy with regard to the other Constitutional provisions it would be better for the Superior Courts not to undertake this exercise or to record on merits with regard to such repugnancy. That would be a pre commitment not conducive to the purely judicial functions that the Courts are required to perform under the Constitution." It is settled proposition of law that the Courts are interpreters and not makers of law. The sovereignty of Almighty on the territories of Pakistan is to be exercised through chosen representatives namely, the Parliament. The people representatives being the repository of the Divine sovereignty the Courts do not have the jurisdiction to invalidate a provision of the Constitution nor can revive any provision, which being applicable for a specific period at its own force as per its schedule has expired. The Constitution can be amended by following the amendment process as laid down in the Articles 238 and 239 and not through the Courts. Accordingly, on 13‑9‑1993 after hearing the arguments we had dismissed this petition in limine and these are the reasons for the same. AA./A‑1494/K Petition dismissed.