Sitting Panel: Sh. Riaz Ahmed, C.J., Munir A. Sheikh, Nazim Hussain Siddiqui, Iftikhar Muhammad Chaudhry and Qazi Muhammad Farooq, JJ

Summary:

This case involved multiple constitutional petitions challenging Article 8AA of the Conduct of General Elections Order, 2002, which disqualified individuals who had lost elections to the National or Provincial Assemblies from contesting elections for a seat in the Senate. The petitioners, primarily defeated candidates, argued that this provision was discriminatory, unjust, and violated fundamental rights, particularly Article 25 (equality before law) of the Constitution. They contended that such a disqualification, introduced after the general elections were held, penalized them retrospectively for a lawful act (contesting an election) and lacked a rational nexus with the object of electoral laws.

The Supreme Court allowed the petitions, holding that Article 8AA was “discriminatory in nature and as such is violative of Article 25 of the Constitution of Islamic Republic of Pakistan.” The Court found that the disqualification was not based on a “reasonable classification” because it treated defeated candidates unequally; specifically, those who lost general elections were barred from Senate elections, while similarly situated defeated candidates could contest by-elections or secure reserved seats for women and minorities. Furthermore, the Court deemed the timing of the legislation crucial, stating that its promulgation after the general elections had concluded left the petitioners “high and dry” and deprived them of the opportunity to make an informed choice about contesting the initial elections. The Court concluded that the impugned legislation, despite being competently enacted, could not remain on the statute book due to its discriminatory and belated nature.

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