P L D 2012 Balochistan 214
Before Qazi Faez Esa, C.J. and Naeem Akhtar Afghan, J
Begum NASREEN KHETRAN ---Petitioner
versus
GOVERNMENT OF BALOCHISTAN, EDUCATION DEPARTMENT, QUETTA
through Secr etary and another ---Respondents
Constitutional Petition No. 385 of 2009, decided on 28th August, 2012.
(a) Constitution of Pakistan --
----Arts. 29(3) & 199 ---Constitutional petition ---Annual report on observance and
implementation of Principles of Po licy---Duty. of President in relation to affairs of the
Federation and of Governor in relations to affairs of Province to place such report before
Parliament and Provincial Assembly respectively for discussion of people's elected
representatives ---Scope ---President or Governor had no discretion to choose to submit such
reports, rather such duty was mandatory ---Submission of such reports would serve as
valuable performance indicator of Federal as well as Provincial Governments ---Working of
Federal or Provinc ial Government could not be monitored and improved in absence of
information in public domain regarding its performance ---Non-submission of such reports by
President and Governors in past and present for being violation . of constitutional mandate
deprecat ed by High Court ---High Court could direct the President and Governor to prepare
and place such reports before Parliament and Provincial Assembly respectively ---Principles.
(b) Constitution of Pakistan --
----Arts. 29 to 40 & 199 --Action or law not in conformity with Principles of Policy ---
Constitutional jurisdiction of High 'Court to question validity of such action or law ---Scope --
-Validity of such action or law could not be challenged unlike as action taken or law made in
contravention of fundamental rights.
Tahir Ali for Petitioner.
Tariq Ali Tahir, Addl. A. -G. for Respondents.
Date of hearing: 28th August, 2012.
JUDGMENT
QAZI FAEZ ISA, CJ. ---This petition assails the order dated April 25, 2009 , of the
Education Department of the Governme nt of Balochistan whereby 1500 additional posts of
Junior Vernacular Teachers ("teachers/JVTs") were created in 30 Districts of Balochistan.
The petitioner, a member of the Balochistan Provincial Assembly elected on the General seat
from Barkhan, is aggrie ved by the fact that out of the said 1500 posts District Barkhan
received only .15 posts. It is the case of the petitioner that the creation of the said additional
posts are not sufficient to cater to the need of the population of District Barkhan and
therefore has sought a direction that "the respondents to make allocations of posts on the
'basis of population or backwardness of the Districts or on equal distribution basis of seats
throughout the province in accordance with law after setting aside the orde r dated 25 -4-
2009". The learned counsel for the petitioner states that District Barkhan requires more
teachers than the number of the posts that have been created and that the residents of the
District are being discriminated against if compared to other d istricts of Balochistan,
2. Mr. Tariq Ali Tahir, learned Additional Advocate General states that the petition is
misconceived on facts and referred to the reply of the Secretary Education, Government of
Balochistan (respondent No.1) wherein it is stated that the ideal teacher -student ratio is one
teacher for 25 students, whereas the teacher - student ratio in respect of District Barkhan is
one teacher for every 14 students. It is further pointed out that the total sanctioned posts of
JVTs in Barkhan is 845 , comprising of 609 male teachers and 236 female teachers. It is lastly
stated that the posts that were created pursuant to the order dated April 25, 2009 were
additional posts and not the total number of posts, and as per need basis certain districts got
more posts than other districts. Learned Additional Advocate General states that the facts
disclosed by the official respondent have not been rebutted by the petitioner and no affidavit -
in-rejoinder to the comments has been filed,
3. When the petition ca me up for hearing on different dates the petitioner made additional
complaints; including that a large number of schools were closed and many schools were
being used as baithaks (drawing rooms) of the notables of the area. We had accordingly
directed the, Deputy Commissioner Barkhan and District Education Officer Barkhan to
verify the status of the schools in District Barkhan. The Deputy Commissioner submitted his
report wherein it was pointed out that one of the schools that had been closed, namely
Taghao Middle School, was on account of a tribal dispute in the area but the same was now
functional. His report also referred to 16 other schools, all of which were functioning. The
District Education Officer has also submitted his report wherein it is stated th at after visiting
all the schools he can confirm that, "all of them were functioning smoothly and properly" and
that no school was being used "as a drawing room/baithak by the notables of the area or by
anyone else". The report further discloses:
"That t here are 407 Boys Primary Schools, 164 Girls Primary Schools, 12 Boys
Middle Schools, 6 Girls Middle Schools, 12 Boys High Schools and 2 Girls High
Schools in District Barkhan. As such, the total numbers of the boys and girls schools
are 603."
4. It is s ignificant that the petitioner, who is a member of the Balochistan Provincial
Assembly and a Minister in the Provincial Government, had to resort to filing a petition as
she believed that the Government was disregarding the educational needs of her Distric t. If
the information that has been provided by the respondents, after we had passed specific
directions in this regard, had been available she may have been satisfied and not filed this
petition. The people and their elected representatives are entitled t o know how public funds
are being spent, what services are being provided and how different sectors of the
government are performing. If information is available in the public domain it enables
informed debate to take place and proper policy can be formula ted. In its absence the people
and their representatives are left to speculate and on the basis of conjecture specious and ill -
informed rhetoric is generated.
5. The Federation has enacted the Freedom of Information Ordinance, 2002 (PLD 2003
Supplement -1, Federal Statutes, page 440) with a view, "to provide for transparency and
freedom of information to ensure that the citizens of Pakistan have improved access to public
records and for the purpose to make the Federal Government more accountable to its
citizens" and any citizen of Pakistan can obtain information upon. submitting an application
and applicable fee as per the procedure prescribed in the Freedom of Information Rules, 2004
(S.R.O.514(I)/2004 dated June 18, 2004, published in Gazette of Pakistan, Extraordinary,
Part II). The province of Balochistan has also enacted the Freedom of Information Act, 2005
(published in the Balochistan Gazette, Extraordinary, No.179, dated December 6, 2005) with
a similar object, i.e. "to provide for transparency and f reedom of information to ensure that
the citizens of Balochistan have improved access to public records and for the purpose to
make the Government more accountable to its citizens" and any citizen of Pakistan can
obtain information upon submitting an appli cation and applicable fee as per the procedure
prescribed in the Freedom of Information Rules, 2007 (Notification No.SO(INF)2 -
31/2007/1424 -1524 dated November 20, 2007) .
6. An important addition has also been made in the Constitution of Pakistan by inse rting
Article 19A in the Fundamental Rights Chapter (with effect from April 19, 2010 'through the
Constitution (Eighteenth Amendment) Act, 2010), which stipulates, that:
"Every citizen shall have the right to have access to information in all matters of public
importance subject to regulation and reasonable restrictions imposed by law".
Pakistan has thus surged ahead of most countries in recognizing access to information as a
fundamental right and granting its citizens the right to obtain information. A ccordingly, the
Federal and Provincial ministries / departments of information ought to have recast their role
and expounded this important fundamental right and the laws governing it, but unfortunately
most citizens remain oblivious of this Fundamental Ri ght and the laws enabling citizens to
obtain information.
7. The Fundamental Right to information and the freedom of information laws are very
important and useful tools for seeking specific information, but may not be a viable
substitute for routine pro vision of comprehensive information about public services and other
matters. The constitutional makers were aware that if information was not available in the
public domain the working of government could not be properly monitored and improved.
Consequentl y it required that the President in relation to the affairs of the Federation, and the
Governor of each province in relation to the affairs of his Province, have a report prepared on
the observance and implementation of the Principles of Policy contained i n Chapter 2 of the
Constitution of Pakistan:
8. Article 29 of the Constitution stipulates that each organ and authority of the State is
required to act in accordance with the Principles of Policy. Sub -article (3) of Article 29
stipulates that each year t he President in relation to the affairs of the Federation and the
Governor of each Province in relation to the affairs of the Province, shall respectively 'cause
to be prepared and laid before Parliament and the Provincial Assembly a report on the
observan ce and implementation of the Principles of Policy. It is further stipulated that the
report submitted by the President shall be discussed in the National Assembly and Senate and
that the report submitted by the Governor shall be discussed by the Provincial Assembly.
Regrettably, this important provision of the Constitution is observed only in the breach and
the said reports are not prepared and laid for consideration before the peoples' elected
representatives; therefore, there is no occasion for any discus sion taking place on such
reports.
9. The validity of an action or of a law cannot be called in question on the ground that it is
not in accordance with the Principles of Policy (sub -Article (2) of Article 30) unlike any
action taken or law made in contr avention of the Fundamental Rights, but this does not mean
that the Principles of Policy contained in Articles 31 to 40 of the Constitution are bereft of
meaning or that the same have been incorporated into the Constitution merely to adorn it.
The Presiden t and the Governors are required to have such reports prepared and to lay the
same before Parliament or the Provincial Assembly as the case may be "on the observance and
implementation of the Principles of Policy ".
10. The Principles of Policy secure' h uman rights and set out the path the people of Pakistan
have set for themselves and what they want each "organ and authority of the State" to do. This
path amongst other things requires that, "the State shall discourage parochial, racial, tribal,
sectarian and provincial prejudices amongst the citizens" (Article 33) and that, "steps shall be
taken to ensure full participation of women in all spheres of national life" (Article 34). It
mandates to, "protect the marriage, the family, the mother and the child' (Article 35) and to
"safeguard the legitimate rights and interest of minorities" (Article 36). The Principles of Policy
seek to "promote, with special care, the education and economic interests of backward classes or
areas," to "remove illiteracy ", "to ma ke available technical and professional education generally
available and higher education equally accessible to all on the basis of merit" and to "ensure
inexpensive and expeditious justice" (respectively Article 37 (a), (b), (c) and (d)). It also
require s the State to, "provide basic necessities of life, such as food, clothing, housing, education
and medical relief for all the citizens" (Article 38(d)). To "enable people from all parts of Pakistan
to participate in the Armed Forces of Pakistan" (Article 3 9) and to "promote international peace
and security" (Article 40) is also required by the Principles of Policy.
11. Significantly, the duty of getting the report prepared is cast upon the President in relation
to the affairs of the Federation, and upon t he Governor in relation to the affairs of his
Province. These reports are to be submitted to the Parliament or the Provincial Assembly as
the case may be for discussion. The language of Article 29 makes it clear that it is not in the
discretion of the Pres ident and Governors to choose to submit such reports, as can be
gathered from the use of the word shall ] therein. Unfortunately, this mandatory duty with
regard to the Principles of Policy (Chapter 2) of the Constitution has been overlooked and
disregarde d by both the present and 'past Presidents of Pakistan and , governors of the
provinces.
12 .The reports (mentioned in sub -Article (3) Of Article 29) may be categorized as
constituting a 'performance audit of the Federal Government and the respective Prov incial
Governments. If the reports on the observance and implementation of the Principles of Policy
are neither prepared nor submitted discussion on such reports cannot not take place. Hence, the
nation does not know whether it has progressed towards or re gressed from the objectives that
it has set for itself. The Principles of Policy encourage, empower and or protect backward
classes, women, children, minorities, and discourage parochial, racial, tribal, sectarian and
provincial prejudices. By disregarding these Principles the backward classes, women,
children and minorities suffer and parochial, racial, tribal, sectarian and provincial prejudices
attain ascendancy and dominate the national landscape. A continuous assessment, reflection
and discussion on th e observance and implementation of the Principles of Policy would help
empower the underprivileged and strengthen the national polity.
13. The Constitution of Islamic Republic of Pakistan came into effect on August 14, 1973
and it is now 39 years that we have been blessed with it, yet the reports as mentioned in sub -
Article (3) of Article 29 are not being prepared and submitted either by the President of
Pakistan or by the Governors of the provinces. As stated this is a serious violation of the
Constituti onal mandate and has long been overlooked by successive presidents and
governors. The preamble of the Constitution and the Principles of Policy provide the guiding
principles in the implementation of the Constitution and reflect the aspirations of the peop le.
Focus on the same and striving towards this manifesto of policies would secure both
continuity and homogeneity. The reports, envisaged in sub -Article (3) of Article 29, would
reflect whether we are, closer to attaining the goals that we have set for ou rselves or lagging
behind. These reports would also serve as valuable performance indicator of the Federal as
well as Provincial Governments. The task to have the said reports prepared and submitted to
Parliament/Provincial Assemblies has been assigned to the Head of State and the Governors
of the Provinces. The fact that this task was not assigned in the Constitution to the Prime
Minister and the Chief Ministers indicates that the Constitutional makers wanted an
independent assessment of the working of the Federal and Provincial Governments, as the
role envisaged for the President and Governors under the Constitution of Pakistan is
independent neutral and non -partisan.
14. In case the reports as contemplated under sub -Article (3) of Article 29 were submit ted
each year before the Provincial Assembly with regard to status of education and schools at
Barkhan District the same would have disclosed the status of literacy and provision of
compulsory secondary education (in terms of Article 37(a) and (b)) and giv en an opportunity
to the Members of the Provincial Assembly to discuss such reports. These reports and the
discussions thereon may also have engaged the attention of educators, social workers and
media and brought to the forefront the achievements or the d eficiencies in this sector, and as
a result the formulation and enactment of better policies and or laws to ensure that the
objectives mentioned in the Constitution are better complied with. The fact that the petitioner
who is a lady and was elected from a remote area of the Province shows the determination of
the people of the area if they arc provided with education.
15. The Constitutional scheme assigns specific responsibilities on the President, Governors,
Federal and provincial governments, Parliamen t, provincial assemblies and High Courts, and
not every matter is justiciable. For instance, the High Court cannot question the validity of an
action or of a law on the ground that it is not in accordance with the Principles of Policy,
however, the High Co urt can issue. directions to the President to 'prepare and lay before
Parliament and the Governor to prepare and lay before the Balochistan Provincial Assembly
reports on the observance and implementation of the Principles of Policy respectively in
respect of the affairs of the Federation and the Province. However, since such directions have
not been sought in this petition and as the grievance of the petitioner stands redressed there is
no need to issue such directions, but we expect that this major lapse will be attended to by
the holders of these constitutional posts in the future.
16. That during the hearing of this petition it was pointed out that certain schools were closed
and or were not functioning. Consequently, those schools that were closed or were not
functioning through the intervention of this court became functional. The report of the
District Education Officer states that all the 603 schools in District Barkhan are now
operating. Whilst this may be true we take it with a pinch of salt since the list of such schools
and the date of his visits are not mentioned in his report. A prevalent malaise, of which we
can take judicial notice is that a large number of schools, particularly in remote areas, are
setup in the premises of so called notables of the area who use the same for their own
purposes and thus deprive children from receiving education. At many other places schools
have fallen into a state of disrepair and for such or other reason/s remain closed.
17. It is the Fundamental Right of c hildren up to the age of sixteen to receive education.
Article 25A of the Constitution stipulates that, "The State shall provide free and compulsory
education to all children of the age of five to sixteen year". To be able to ensure compliance
with this Co nstitutional directive it is necessary that all schools operate and continue to
function properly. We, therefore, direct the respondents to ensure the operation of all schools
in the Province and to further ensure that teachers attend schools to impart edu cation. This
can be easily ensured through proper and periodical monitoring by the District Education
Officers, consequently, we further direct the respondents to ensure that the District Education
Officers periodically visit all schools in their respectiv e districts to ensure that each and
every school is fully operational and teachers employed therein are attending and performing
their duties and to properly document their visits.
18. The petition is disposed of in the aforesaid terms, with no order as to costs. Office is
directed to send copies of this judgment to the respondents for information and compliance.
Copies of the judgment should also be sent to the Federal and Balochistan ministries of
information for improving their working in terms of para graph six above. In addition copies
of the judgment also be sent to the President of Pakistan and the Governor of Balochistan
through their respective Secretaries to bring to their attention their Constitutional duties
prescribed in Article 29(3) of the Co nstitution of the Islamic Republic of Pakistan with
regard to the , preparation of reports on the observance and implementation, of the Principles
of Policy in terms of the said Constitutional provision.
SAK/92/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.