ISLAMABAD, April 18: The government on Friday informed the Supreme Court that the condition of graduation for legislators imposed by President Pervez Musharraf in 2002 was discriminatory in nature because it had created a class within society by disenfranchising 97 per cent of the people.

“Democracy comes with votes but if voters are to elect only three per cent of their population, it will be discriminatory,” Attorney General Malik Mohammad Qayyum said, adding that a great statesman like Winston Churchill was not a graduate, but he was a great leader.

A seven-judge bench of the Supreme Court comprising Chief Justice Abdul Hameed Dogar, Justice Faqir Mohammad Khokhar, Justice Ijaz-ul-Hassan, Justice Mohammad Moosa K. Leghari, Justice Chaudhry Ejaz Yousaf, Justice Syed Sakhi Hussain Bukhari and Justice Syed Zawwar Hussain Jaffery took up a joint petition challenging the graduation condition moved by citizens Mohammad Nasir Mehmood and Shameer Ahmed.

Justice Khokhar described the law as “hostile discrimination”.

In 2002, through Article 8(A) of the Chief Executive Order No 17, Section 99 (1)(CC) was inserted into the Representation of Peoples Act 1976, requiring a contesting candidate to be at least a graduate, in any discipline or holder of a degree recognised by the Higher Education Commission.

At the outset, the court impleaded Dr Aslam Khaki, an Islamic jurist, as a party in the case and he, through an application, supported the graduation condition by highlighting the need for competence to hold high public offices.

“My fundamental right as a citizen will be infringed if I am not represented by capable people in the assemblies,” said Dr Khaki who had previously challenged Riba (usery) and a pending case against Sanad (certificates issued by madressahs).

The court is expected to announce its verdict on Monday.

Presenting data on the number of graduates in the country, the attorney general said that only 1.4 per cent people (over 2.5 million) of the total population of 160 million were graduates, although they constituted a little over 3.2 per cent of the total number of registered voters (68.1 million).

The province-wise break-up suggests that Punjab has the highest number of graduates with over 1.2 million, while the NWFP has over 200,000 graduates, Fata 10,000, Sindh 800,000, Balochistan 58,000, Islamabad over 73,000 and Azad Jammu and Kashmir 52,000.

“It is the basic right of every citizen to be educated but it will be highly unreasonable to disenfranchise 97 per cent of its people, especially when the state is not providing equal opportunity of education to everyone,” the attorney general said.

Justice Khokhar observed that although Section 99 (1)(CC) and Article 8(A) were extra-constitutional measure, these were protected by virtue of the Sixth Schedule of the Constitution and Article 270AA (validation clause) and, therefore, could not be changed without the consent of the president.

“By hitting Article 270AA, the entire edifice of extra-constitutional measures taken by President Pervez Musharraf, including enhancing the number of women seats in parliament, will collapse,” he observed.

Advocate Senator Kamran Murtaza, legal counsel for the petitioners, said that legislators were conscious while incorporating the graduation condition that it was meant only for the 2002 elections. Besides, Article 62 of the Constitution which dealt with the qualification of members to become parliamentarians did not prescribe any such condition, he added.

“The graduation condition violates Article 17 (freedom of association) and Article 25 (equality of citizens) and it is strange that voters can vote but not participate in elections. The condition also gives an upper hand to the urban elite over rural people who do not have the equal chance of getting education,” he argued.