Islamabad: August 5, 2015. (PCP) The 17 Judges Larger Bench of Supreme Court of Pakistan in majority decision on 18th Amendment of Constitution of Pakistan rejected amendment inArticle 51 of the Constitution on a Petition filed by Julius Salik throug
It is not clear that those who are Selected by Political parties under proportional system on reserved seats for minorities in National Assembly of Pakistan and four provincial assemblies will be allowed to attend sessions of parliament after this historic judgement of Supreme Court of Pakistan.
The Supreme Court of Pakistan rejected all other pleases file by other groups against 18th Amendment and 21st Amendment in Constitution rejected by majority decisions here today in 903 pages judgment.
Dr. Nazir S Bhatti, President of Pakistan Christian Congress PCC have expressed satisfaction on judgement of Supreme Court of Pakistan on striking down Selection system for religious minorities on reserved seats for non-Muslims in parliament and allowing Election system that minority voters may elect their representatives with their votes.
Nazir Bhatti urged speaker of National Assembly of Pakistan and Speakers of four provincial assemblies not allow Selected Minority members on floors after judgement of Supreme Court of Pakistan today rejecting Selection System under Article 51.
“I congratulate Mr. J Salik on filing this petition and to all social and political activists who voiced against Selection System and demanded Election on reserved seats” said Nazir Bhatti
Here is matter of Mr. Salik Petition in SCP Judjment:
110. Article 51 of the Constitution was substantially amended by the eighteenth Amendment in respect of seats reserved for minorities. These amendments (reproduced below) have been challenged by Julius Salak, a member of the minority Christian community, in Constitution Petition No. 43 of 2010. He raised objections to sub-clauses 6(c) and (e) of Article 51 of the Constitution as amended by the eighteenth Amendment. These provisions, for ease of reference, are reproduced as under:-
“Article 51. (1) There shall be three hundred and forty-two seats for members in the National Assembly, including seats reserved for women and non-Muslims
(c) the constituency for all seats reserved for non-Muslims shall be the whole country;
(e) members to the seats reserved for non-Muslims shall be elected in accordance with law through proportional representation system of political parties‟ lists of candidates on the basis of total number of general seats won by each political party in the National Assembly:”
111. According to learned counsel, the provisions referred to above are liable to be struck down because the same are violative of three of the express commands of the people, firstly, that “adequate provisions shall be made to safeguard the legitimate interests of minorities …” secondly, that “the State shall exercise its powers and authority through the chosen representatives of the people” and thirdly, “that the principles of democracy shall be fully observed”. In the new arrangement brought about in the Constitution through Article 51 ibid it was contended firstly, that members of the minorities were left with no ability either to participate in such elections or even to offer themselves for election because there was in fact no election at all. The challenged provisions of the above Article are such that at the time of election, a member of a minority whose name appears on the electoral roll will have no choice to fill the seats reserved for non-Muslims or to offer himself for election. There is merit in the submission of learned counsel that this scheme introduced in the Constitution does not conform to any of the principles of democracy which would allow the minorities to choose their own representatives. Instead the major parties will choose the minority members and there would be no election to the seats reserved for minorities; there would be a selection of members instead, and that too which is not made by the minority community.
112. The learned counsel representing the Federation and the learned Attorney General did not respond to the aforesaid objections. It was, however, suggested in passing by counsel in some other petition that minority members could always contest elections on general seats and that Article 51 ibid provides to them additional representation. On this basis it was contended that the minorities should be content with the above referred provisions of Article 51. This contention is misconceived because additional seats for minorities are not a matter of grace and benevolence of political parties but are a requirement of the above commands which are made in the Preamble requiring that the legitimate interests of the minorities are provided for. These commands are to be loyally obeyed for the reasons which have been explained in Part I above.
113. The case of Julius Salak illustrates violation of some of the basic Constitutional tenets. Two of these tenets relate to minorities. One of these as stated in the Preamble in express words requires that “adequate provision shall be made to safeguard the legitimate interest of minorities …”. It is here that the amendment to Article 51 introduced through the eighteenth Amendment is open to challenge.
114. In addition to the above noted commands, it would also appear that the principles of democracy required by the will of the people, have also been violated. Mr. Salak has stated in his petition, with some justification, that the valuable right of the minorities to elect their representatives directly, has been taken away and that “this system can be used by the political parties to introduce such people in the National Assembly who will work under the command of the political parties and will have no concern with the betterment of the minorities”. The petitioner, has stated in his petition that he was elected thrice to the National Assembly on a seat reserved for non-Muslims. This was a result of elections where members of the minority community could offer themselves to their own community for election and to be chosen through a democratic electoral process to be
115. In the post amendment dispensation according to the petitioner a person like him cannot be elected to the National Assembly unless he compromises with or kowtows to the leader(s) of a political party which may then select him. There will be no opportunity for such minority member to have his name put on a ballot by himself and thus there will be no possibility at all of him being chosen as a representative of his community even though (like Julius Salak) he could have won an election on the basis of his popularity amongst his community.
116. It was suggested, not by the learned Attorney General, but by some other counsel that the pre-amendment procedure was very burdensome because the whole country was a single member constituency and, therefore, only very rich members of minorities could contest the election and get themselves elected. I have not found any debate in Parliament in relation to the above noted amendments in Article 51 ibid. Various proposed amendments appear to have been considered by the Parliamentary Committee on Constitutional Reforms (PCCR). This Committee held as many as 77 meetings with each meeting on average lasting five hours, thus the Committee spent 385 hours on its deliberations. Amendments to 97 Articles were proposed. It does not appear from the report of the PCCR that any consideration was given to Article 51 although through a separate note of reiteration Senator Prof. Khursheed Ahmed did comment on the said Article and in certain respects agreed with the petitioner, although he otherwise did not support the creation of reserved seats for non-Mulsims. The report of the PCCR does not refer to any discussion on the proposed amendment to Article 51. Furthermore, a disconcerting aspect of the report is that out of 27 members of the PCCR there was not a single member belonging to any minority community and nor does it appear that views of the minorities were solicited by PCCR at any stage, for its consideration. It, therefore appears that the command contained in the Preamble directing the State to ensure that adequate provision is made to safeguard the legitimate interests of the minorities, was not within the contemplation of the two Houses of Parliament when the eighteenth Amendment Bill was adopted. Such absence of debate lends support to the contents of the Constitution Petition filed by the petitioner Julius Salak.
117. No one appears to have considered the possibility (consistent with the principles of democracy) of numerous alternatives whereby the State could, for instance, fund the travel and election campaigns of a selected few contestants on the reserved seats. Such handful could easily be identified through a threshold requiring them to be proposed by a small yet substantial number of voters of the minority community borne on the electoral rolls. Other alternatives could have included free air time on State TV and Radio to such candidates who cross the threshold. This would have ensured the principles of democracy being fully observed while allowing non-Muslims to choose their own representatives. It is however, for Parliament to decide on the content of a Constitution Amendment Bill. I can only highlight the deviation of such Bill from the Constitutional principles discussed above. 118. In view of the total absence of any debate on the foregoing issue, it may not be unreasonable to accept the contents of Constitution Petition No.43 of 2010 which insists that the new arrangement “can be used by the political parties to introduce such people in the National Assembly who will work under the command of political parties … In fact [the new system] will open floodgates of exploitation [of] such representatives” and the ultimate effect will be non representation of the minorities in the National Assembly. It would indeed be unfortunate if the minorities were to justifiably perceive the new arrangement as a cynical ploy or condescension on the part of the majority which does not take into account the „legitimate interests of the minorities‟. It would be equally tragic if the minorities (inspite of the historic promises of the Quaid-e-Azam and every other leader) come to regard themselves, on account of the new Article 51 as second class citizens or the „children of a lesser god‟, forever to remain subservient to the majority‟s goodwill and unrepresented by their own chosen representatives.
119. For the foregoing reasons, I would agree with learned counsel for the petitioner Julius Salak that the aforesaid provisions are liable to be struck down. Parliament may substitute these provisions if it so chooses, by such provisions which recognize the high degree of importance given to minorities and to the principles of democracy as explained in Part-I of this opinion. Similar considerations would be relevant for Article 106 of the Constitution also which deals with reserved seats for minorities in provincial Assemblies.