A unanimous verdict by seven-member bench of the apex court, headed by Chief Justice Abdul Hameed Dogar, said the condition of graduation is declared to be void prospectively for being discriminatory and against the fundamental rights inscribed in the Constitution.
The bench comprised Chief Justice Abdul Hameed Dogar, Justice Faqir Muhammad Khokhar, Justice Ijaz-ul-Hassan, Justice Mohammad Moosa K. Keghari, Justice Chaudhry Ejaz Yousaf, Justice Sakhi Hussain Bukhari, and Justice Zawwar Hussain Jaffery.
The petition was filed by Muhammad Nasir Mehmood and Shameer Ahmed of JUI-F under Article 184(3) through their counsel, Kamran Murtaza, making the Federation of Pakistan through the secretary, Ministry of Law, Justice and Human Rights Division, respondents.
In 2002, Article 8(A) was amended through the Chief Executive Order No 17, Section 99 (1)(CC) was inserted into the Representation of Peoples Act 1976, which says: "he is at least a graduate, possesses a bachelor's degree in any discipline or any degree recognized as equivalent thereto by the University Grants Commission under the University Grants Commission Act, 1974 (XXIII of 1974), or any other law for the time being in force".
At that time a similar petition was filed by the PML-Q seeking abolition of the graduation condition but a five-member bench gave its verdict in favour of the provision of graduation and declared it legitimate.
The Supreme Court on Monday completed the hearing of the petition and issued a short order, which says: "for the 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 2003) and clause (cc) of section (1) of section 99 of the Representation of the People Act, 1976, which lay 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".
"It is a one man law and has never been examined at any forum", said Attorney General Malik Muhammad Qayyum, adding it negates the concept of democracy, therefore, is crafting an elite democracy.
Qayyum set aside his legal obligation to defend the steps taken by the President that also include the insertion of provision of graduation through Article 8(A) of the Chief Executive Order No 17, Section 99 (1)(CC), he argued in favour of the petitioner and declared the provision as discriminatory.
The parliament is a law-making institution and if it requires specialists then every legislator should have to be law graduate. Instead of inserting any educational provision, the voters should be given the privilege of selecting the lawmakers, said Qayyum.
The AG said that the condition is neither based on rational classification and fundamental rights nor is an Islamic principle to be a graduate for contesting any elections. There are countless seasoned politicians like former NA speaker Gohar Ayub Khan, Abida Hussain, who served as an ambassador to the USA, were barred to contest elections, he added.
Deputy Attorney General Niaz Ahmed Rathor representing the Federation appeared before the court, but did not oppose the petition and pleaded against the restriction of graduation, saying the court has jurisdiction to strike it down and declare it an ultra vires law.
Earlier, Kamran Murtza, counsel for the petitioner, said that insertion of graduation condition has not served any purpose as graduate assembly selected in November 2002 passed merely 50 bills till the end of its tenure.
But, prior to this assembly, the parliament passed 74 bills from 15 February 1997 to 12 November 1999, and the difference of work done speaks for itself, he added.
He said the condition of graduation has also compelled the aspirants to attain fake degrees in order to contest the elections. The ulterior motive for this condition is to bar some people from contesting the general elections, he added. Recalling the Article 17 and 25 of the Constitution, Kamran said the condition of graduation violates fundamental rights and also gives an upper hand to the urban elite over rural people who do not have the equal chance of getting education.
Dr Aslam Khaki, respondent as a party in the case through an application, supported the graduation condition, saying the court has no prerogative to amend or abolish any law as it has been protected by the sixth schedule. He argued that if the condition of graduation is to be abolished then Article 62, which relates the qualification and Article 63, that describes disqualification should also be abolished. But the Chief Justice said that the condition of graduation was not included in Articles 62 and 63.
However, after the announcement of judgment Khaki vowed to file a review petition, saying he still believes the law was according to the Constitution and should remain a part of it. The court announced implementation of this verdict with 'prospective' effect, it will open a new Pandora's Box, as countless people are being deprived of the right to contest general elections would question status of newly-elected parliament, he added.
On the other hand, the AG welcomed the decision, saying it entails far-reaching prospects in the future, as it was against the fundamental rights of the people.