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Official Citation: 2009 PLD 870
Court / Jurisdiction: Lahore High Court
Year of Decision: 2011
Decision Date: 2011-05-12
Parties: Pakistan Lawyers Forum vs Federation Of Pakistan And Another
This judicial decision was delivered by the Lahore High Court on 2011-05-12. The matter involves proceedings between Pakistan Lawyers Forum and Federation Of Pakistan And Another, officially reported as 2009 PLD 870. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as PLD 2009 S.C. 870
Court Name: Lahore High Court Judge(s): Ijaz-ul-Ahsan, Ijaz Ahmad Chaudhry, Umar Ata Bandial, Ch. Iftikhar Hussain Title: Pakistan Lawyers Forum vs Federation Of Pakistan And Another Case No.: Writ Petition No. 19561 of 2009 Date of Judgment:2011-05-12 Reported As: K.L.R. 2011 Civil Cases 161 Result: Order accordingly
JUDGMENT
JUDGMENT UMAR ATA BANDIAL, J. - This petition is filed for the enforcement of the claimed Constitutional mandate regarding the office of the President of the Islamic Republic of Pakistan under Article 41(1) of the Constitution. On the basis of the pleas stated in the petition and elaborated at bar, the learned counsel for the petitioner has prayed for a direction by the Court requiring the respondent No. 1, Federation of Pakistan to act in accordance with law and to ask the respondent No. 2, Mr. Asif Ali Zardari, President of Pakistan to surrender his office of Co-Chairperson of the Pakistan Peoples Party. 2. The essence of the petitioner's case is reflected in points framed by the Court on 14.12.2010 for seeking assistance and submissions by the learned amicus curiae in the matter. These points are:- - "(i) The provisions of Article 41(1) of the Constitution of the Islamic Republic of Pakistan, 1973 mandate that the President of Pakistan as the Head of the State and symbol of the unity of the Republic must i.e nonpartisan and neutral and therefore necessarily shun politics and not be a member let alone an office bearer of a political party. Reference may be made to the reasons given in the separate opinions of the learned Judges in Mian Muhammad Nawaz Sharif Vs. President of Pakistan and others (PLD 1993 SC 473). (ii) According to Article 260 of the Constitution of the Islamic Republic of Pakistan the President of Pakistan holds an office in the service of Pakistan and therefore under Article 17(2) of the
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Constitution, he cannot be a member of a political party. Reference may be made to provisions of Article 63-A, Article 43, Article 81(a), Article 207(1 )(a) of Constitution of the Islamic Republic of Pakistan, 1973." 3. Before embarking to discuss the different legal angles of the controversy that were canvassed before the Court, it is important to record briefly certain events in the proceedings that surprised the Court for being intended to hamper a considered judgment in the case. After the first hearing in the petition, it was ordered by a learned Division Bench on 8.10.2009 that the learned Attorney General for Pakistan shall assist the Court at the preliminary stage. After a few adjournments granted on requests made on his behalf, the learned Attorney General entered appearance in the Court on 29.3.2010 and candidly stated that some questions of Constitutional importance arose for determination in the matter and therefore he did not object to the writ petition being admitted to regular hearing. Accordingly, a Full such of the Court by order dated 29.3.2010 admitted the petition to regular hearing and issued notice to the respondents for 3.5.2010. 4. In response to fresh notice served on the parties, the Federation was represented by a number of learned counsel including Mr. Talib H. Rizvi, Mr. Saif-ul- Malook, Mr. S.M. Masud, Advocates and Mr. Abid Saqi, learned Deputy Attorney General on 27.5.2010. None however entered appearance on behalf of the respondent No. 2, although he was served through an officer in his Secretariat. The respondent No. 1 Federation filed its written statement on 12.5.2010 through the learned Deputy Attorney General and thereafter filed two applications, one bearing C.M. No. 2256-2010, seeking recall of the admitting order dated 29.3.2010 and the other bearing No. 2339-2010 raising objection that C.M. No. 2256-2010 be decided before further progress in the proceedings. 5. C.M. No. 2256-2010 was perused on 21.6.2010 and the Court concluded that as a purely Constitutional question was raised in the matter which was already part heard, it was appropriate that objections raised by the Federation be heard and decided along with the main case. When that order was announced in Court ail the learned counsel for the Federation left the Court room. Thereafter, despite several notices served upon the respondents, none has appeared in these proceedings to present their point of view. Such withdrawal of the learned counsel for the respondents from proceedings was as surprising as it is strange. None of the preliminary objections taken in C.M. No. 2256-2010 disclose a jurisdictional bar to the writ petition. The objections to maintainability of the petition raised in it were such that the Court felt it appropriate to deal with the same along with the purely Constitutional points raised in the petition. There is nothing unusual in the approach taken by the Court but it is simply incomprehensible that the prescribed law officer of the Federation, as defined in Article 199(5) of the Constitution, namely, the Attorney General for Pakistan or law officers in his charge have desisted their bounden obligation to assist this Court notwithstanding notice under Order XXVII-A of the CRC, served on him. 6. Nevertheless, after giving ample opportunity on three dates of hearing, the respondents were proceeded against ex parte on 7.10.2010; and regrettably without the assistance of the learned Attorney General or the learned counsel for the respondents, this Court has embarked to perform its duty to consider the legal force of the challenge made to the actions of the President of Pakistan and whether this Court in its Constitutional jurisdiction can issue him directions in the matter. 7. In order to develop a broader, balanced and enlightened perspective about the Constitutional question raised for our interpretation, this Court by order dated 7.10.2010 appointed Mr. Abdul Hafiz Pirzada, Mr. S.M. Zafar, Mr. Abid Hassan Minto learned Senior Advocates of Supreme Court of
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Pakistan as amicus curiae to assist the Court on the legal points raised in the petition. We acknowledge with appreciation the reasons given in writing by Mr. S.M. Zafar, Senior ASC to the questions arising for determination and the, erudite and incisive submissions made by Mr. Abid Hassan Minto, Senior ASC before the Court, It may also be noted that Mr. A.K. Dogar, Advocate, learned counsel for the petitioner did not adopt a doctrinaire stance to project his case but made a noticeable effort during his submissions to propound a harmonious and realistic meaning of the Constitutional provisions. 8. The case of the petitioner derives meaning from the express provisions of the Constitution to cast obligations on the President of Pakistan. These provisions are, in particular, Article 41(1), Article 260, Article 17(2) of the Constitution. The Hon'ble Supreme Court in its seminal judgment in Mian Muhammad Nawaz Sharif Vs. President of Pakistan and others (PLD 1993 SC 473) has opined upon the role and attributes of the office of the President of Pakistan. Treating the unanimous view expressed in the said judgment as binding law under Article 189 of the Constitution, it is the case of the petitioner that the President of Pakistan respondent No. 2 has transgressed and violated the Constitutional limitations pertaining to his office by retaining the office of Co-chairperson of the Pakistan Peoples Party. 9. Let us now examine the reasoning by which the above conclusion is suggested by the learned counsel for the petitioner. Article 41(1) of the Constitution provides:-- "There shall be a President of Pakistan who shall be Head of State and shall represent the unity of the Republic. 10. Learned counsel explains that the President is not the Head of the Government but the Head of State, In exercise of his functions, he does not represent any specific private, political or communal interest but the unity of the Republic. The oath of office of the President visualized by Article 42 of the Constitution and provided in the Third Schedule thereto contains a pledge to discharge his duties and perform functions faithfully in accordance with the Constitution and the law and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan. 11. It is contended that the foregoing Constitutional attributes of being Head of State and for representing the unity of the Republic necessarily import a duty of neutrality and impartiality upon the President of Pakistan to be exercised between the different, divergent or competing interests, objects or views of the citizen in the polity, It is by maintaining such an independent stand that the office of the President can stay above controversy and fulfill its Constitutional mandate of representing the unity of the State. 12. To fortify his point, the learned counsel has read from opinions of the learned Judges in the case of Mian Muhammad Nawaz Sharif, In order to notice the force and unanimity of the judicial pronouncement in the matter, brief reference is now made to the said opinions. What adjudicating the validity of the President Order dated 18.4.1993 made under Article 58(2)(b) of the Constitution dismissing the Federal Government and dissolving the National Assembly, the learned members of the Full Court expressed their opinion about the Constitutional role and qualities of the President as Head of the State. Learned Chief Justice of the Court observed:-- "Now, the President as the symbol of the unity of the Federation is entitled to the highest respect and esteem by all the functionaries of the State. But it is equally true that this respect and esteem
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will be forthcoming if he conducts himself with utmost impartiality and neutrality, that he keep himself entirely aloof from party politics and does not give the impression to any one that he is siding with one faction or working against the other." In the same context Muhammad Afzal Lone, J. Gave the following opinion:-- "In the context of the powers and Constitutional position of the President, Article 41 also came under discussion, which represents the President as a symbol of unity of Pakistan. He is elected by the Provincial Assemblies as well as the National Assembly and is a binding force between the Federation and the federating units, In a pluralist society rent with political polarization, ethnic, racial, provincialism and other diversities, for strengthening the process of social harmony, democracy and creative national enthusiasm, the role of the President becomes all the more important. These objects can meaningfully be achieved if the President shuns politics and remains a non-controversial figure." With reference to the obligation imposed on the President under Article 41 of the Constitution, Amal Mian, J. Noted "I am observe that under Article 41 of .The Constitution, the President is the Head of the State and represents the unity of the Republic." Reinforcing the views expressed by his other colleagues on the Bench, Saeed-uz-Zaman Sidd. Iqui, J. Held that:~ "No doubt, the President-as the symbol of the unity of Federation occupies a neutral position in the Constitution, and in that capacity he is entitled to highest respect and regard by all the functionaries of the State. But it is equally important that in order to protect and preserve the dignity of this high office and this neutral image under the Constitution the President must keep aloof from all political imbroglio. If the President is unable to ward OF the temptation to keep away from political game or he starts siding with one or the other political element in the Assembly, he is likely to loss his image as the neutral arbiter in national affairs and as a symbol of unity of Federation under the Constitution, In the latter events, his conduct may also come under criticism from those who may feel betrayed." 13. The foregoing pronouncements on the obligation of political neutrality of the President of Pakistan under Article 41(1) of the Constitution is fortified by the learned counsel by reference to Article 43(2) of the Constitution, It is provided therein that if a Member of the Parliament is elected as President, his seat in the Assembly shall become vacant on the day he enters upon his office and that the President shall not be elected as a Member of Parliament. On the other, hand, the Prime Minister and his Cabinet who exercise executive Government retain their seats in the Parliament notwithstanding the assumption of office in the Government. 14. Learned counsel for the petitioner submits that the above-mentioned observations of the Hon'ble Supreme Court regarding the effect of Article 41(1) of the Constitution enunciate a binding principle of law under Article 189 of the Constitution irrespective of whether these observations may not constitute the principal reason for setting aside the Presidential Order of dissolution dated 18.4.1993. 15. To the extent that the President of Pakistan also holds in his private capacity the office of the
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Co-, chairperson of the Pakistan Peoples Party is alleged to make him partisan and partial in his appreciation, perception and decisions about matters concerning public and political interests. That makes his actions and decisions controversial and tarnish the neutrality of his office that is its essential Constitutional attribute. For such reason, it is prayed that the President of Pakistan must shed his political office. 16. As a second point of challenge to the "dual office" held by the President, the learned counsel has referred to Article 260 of the Constitution containing definitions of words and expressions used in the Constitution. He has read form the definition of "service of Pakistan" to emphasis that every post or office in connection with the affairs of the Federation is in the service of Pakistan except that office which is expressly excluded in the said definition in Article 260 ibid. These offices, inter alia, include service as Prime Minister, Federal Minister, Minister of State, Chief Advisor to Prime Minister or Member of a House or a Provincial Assembly but the exclusion does not mention the office of the President of Pakistan as falling outside the definition of 'service of Pakistan'. On that premise the learned counsel has read from Article 17(2) of the Constitution to submit that every citizen not being in the service of Pakistan has a right to form or be a member of a political party. However, since the President is in the service of Pakistan the bar under Article 17(2) of the Constitution forbids him to be a member of a political party and consequently an office bearer thereof. He supports the above formulation by relying upon Article 43(1) of the Constitution whereby the President is prevented from holding any office of profit in the service of Pakistan or occupying any other position carrying the right of remuneration for the rendering of service. From the expression "occupy and other position" the learned counsel infers that the office of the President exists in the service of Pakistan. 17. He draws support from Article 81(a) of the Constitution which treats the matter of remuneration of the President and the Judges of the Supreme Court alike as being an expenditure charged upon the Federal Consolidated Fund. He then argues that under Article 207 of the Constitution a Judge- of Supreme Court cannot occupy any position carrying a right of remuneration for rendering of service. Accordingly, by parity with Article 43(1), it is contended that the President of Pakistan also cannot hold such an office. Consequently, he pleads that by virtue of his office being in the service of Pakistan, the President is debarred from being a member of a political party under Article 17(2) of the Constitution or from holding any other office that carries a right to remuneration for rendering of service. 18. As already disclosed, the Attorney General for Pakistan and his team of law officers failed to render any assistance to counter or rebut the propositions advanced by the learned counsel for the petitioner. However, we are fortunate to have received able assistance on the points in issue from the learned amicus curiae who were requested by the Court to explain and elaborate the points raised in matter, In a written brief submitted by Mr. S.M. Zafar, Senior ASC, it is observed that there is no express Constitutional provision barring the President of Pakistan from holding a political office or engaging in political activities. He explains that Article 43(1) of the Constitution prohibits the President from holding any office of profit in the service of Pakistan or any other position carrying a right to remuneration for service rendered. He submit that the office of Co- chairperson of a political party is certainly not an office of profit in the' service of Pakistan and in the absence of evidence being brought on record it cannot be treated as an office carrying a right of remuneration for service rendered. Therefore Article 43(1) cannot be a source of disqualification of the President from holding a political office. Furthermore, Article 43(2) of the Constitution specifies the only political office that the President is prohibited from occupying, namely,
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Membership of Parliament or a Provincial Assembly. 19. Learned amicus has next referred to Article 41(2) of the Constitution which specifies the qualifications for election as President. These are the same as laid down in Article 62 of the Constitution which contains the qualification for election as a Member of Parliament. None of the qualifications specified in Article 62 of the Constitution nor for that matter even the disqualifications from Membership of Parliament contained in Article 63 of the Constitution, exclude the office bearer of a political pretty from contesting an election. With reference to Article 41(1) of the Constitution the learned amicus considers the judgment in Mian Muhammad Nawaz Sharif's case to remedy lay down a code of conduct for the President of Pakistan to facilitate the discharge of his responsibility to promote the unity of the Republic. This code of conduct cannot be converted into a binding obligation, It reflects "noble thoughts and good considerations" to be practiced by the President of Pakistan. Finally, the learned amicus maintains that if any President uses his position for the benefit of his political party he would become liable under Article 47(1) of the Constitution to impeachment by Parliament on the charge of gross misconduct. The allegation of violating the Constitution cannot hold under Article 47(1) thereof, because in the above circumstances, there is no express Constitutional prohibition against political activity by the President. He closes by mentioning that the 18th Constitutional Amendment has by Article 63-A of the Constitution empowered the head of a political party to declare that a member of his parliamentary party has defected; and therefore authorized him to request the Chief Election Commissioner to disqualify and de-notify a delinquent member. The exercise of such power by a political party head if he were also the President would potentially conflict with his noble bearing of neutrality because the President shall have to take sides between political interests in Parliament. However, no such conflict can arise presently because Article 63-A of the Constitution becomes operational after the next general elections is held. 20. The submissions by. Learned Amicus Curiae Mr. Abid Hassan Minto, Senior ASC have shed further light on the questions in issue. He has explained that notwithstanding the military interventions in the legal order of the State, it is settled law that the Constitution has preserved a parliamentary form of Government. Reference is made to Muhammad Khan Achakzai \/s. Federation of Pakistan (PLD 1997 S.C. 426) at page 520 and Zafar Ali Shah Vs. Gen. Pervez Musharraf (PLD 2000 S.C. 869) at page 1211. The 18th and 19th Amendments to the Constitution made in the year 2010 have further reinforced parliamentary form as an essential characteristic of Government. There are, however, different types of parliamentary democracies in the world. The classic Westminster form of Government is prevalent in U.K. Where the head of State is a monarch holding a hereditary office. Moreover, the Constitutional norms of the system are embedded principally in conventions rather than in a written Constitution whereunder the monarch shuns political affiliation. 21. On the other hand, Pakistan has a written Constitution under which the President who is the Head of State holds an elected office. The Constitution neither limits nor allows political acts or affiliation by the President, In contract under the Constitution of the Republic of Turkey, the office of President is an elected office but the President elect must before entering upon the same sever his relations with his political party and also cease to be a member of the Turkish Grand National Assembly. The specific bar imposed on the political affiliation and actions of the President of Turkey is also echoed for the office of President under the Constitutions of the Republic of Singapore and the State of Israel. He submits that historically the office of Head of State of Pakistan has not been subject to any restriction regarding political affiliation or action by its incumbent. Accordingly, by
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reference to practice adopted by the Constitutional Heads of State of Pakistan, he has shown that except for Quaid-e- Azam Muhammad AN Jinnah, other incumbents who had previous political backgrounds did not sever their connection with their political parties on the assumption of office. These include Kh. Nazim-ud-Din and Iskander Mirza, as Governor Generals. Iskander Mirza, Zulfiqar AN Bhutto, Fazal Elahi Chaudhry and Faruq Ahmad Khan Leghari as holders of the office of President. Therefore, neither Constitutional prohibition nor Constitutional convention requires the holder of the office of President of Pakistan to disassociate from his political party. He submits that it is only logical that a holder of the office of President who is a member of a political party, may also be an office bearer of his political party. 22. The learned amicus case Mr. Minto has then explained the expression "unity of Republic" used in Article 41(1) of the Constitution to mean unity of the territories of Pakistan. By reference to Article 1 of the Constitution, he submits that the concept- of Republic in the Constitution is territorial in character and not political in its content. Therefore, the qualification prescribed in Article 41(2), under Articles 62 and 63 of the Constitution for election to the office of President incorporate the qualifications meant for election to Parliament and the Provincial Assemblies. The=.c qualifications do not envisage any limitation on the political affiliation of a candidate for election, In the context of the office of President of Pakistan, he elaborates that the electoral college for the office of the President are Members of Parliament and the Members of the Provincial Assemblies as laid down in Article 41(3) of the Constitution, In a realistic and practical sense, members of the Constitutional legislatures who are elected on political basis are expected to be influenced by political affiliation for electing the President of Pakistan. Indeed as an example, under Article 43(2) of the Constitution, a Member of Parliament is eligible . To contest the election for President. 23. Learned amicus Mr. Minto has next dilated upon the effect, if any, of the violation alleged by the petitioner. He submits that assuming that retaining a political party office by the President amounts to a violation of the Constitution or gross misconduct, the remedy for its correction is not the disqualification of the President by a Court of law but his impeachment in Parliament under the express provisions of Article 47 of the Constitution. The fact that under Article 90 of the Constitution, executive authority of the Federation is exercised in the name of President by the Federal Government, it is plain that executive decisions of the Federal Government require and receive the authentication of the President under Article 48 read with Article 99 of the Constitution, It is self- evident that many executive decisions of the Federal Government involve political considerations upon which the President of Pakistan is entitled to form judgment and, if so inclined, to ask for reconsideration of the decisions by the Cabinet under Article 48(1) of the Constitution. Consequently, in the performance of his functions also the President is not a political or mechanical Constitutional functionary but applies his mind and makes judgments on executive matters including political subjects. He has a vital role to play in the good governance of the State. 24. With regard…
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