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Petitioner: Dr. Farooq Sattar VS Respondent: Election Commission of Pakistan and others
Court Name: Islamabad High Court Judge(s): Aamer Farooq Title: Dr. Farooq Sattar vs Election Commission of Pakistan and others Case No.: W.P. No. 1187 of 2018 Date of Judgment:2018-04-17 Reported As: 2018 IHC 68 Result: Accordingly dismissed.
Judgment AAMER FAROOQ, J. - The instant petition calls in question order(s) dated 26.03.2018, whereby applications/ petitions filed by respondents No. 2 & 3 were allowed. 2. The facts, relevant for the purposes of present controversy , are that the petitioner is the former convener and party leader of Muttahida Qaumi Movem ent Pakistan ("MQM-P "). He served as MQM-P' s convener and party leader from 21.06.2012 to 30.05.2016 and 31.10.2016 to 26.03.2018. The petitione r was removed from his position as convener / party leader on 11.02.2018 in a meeting of the Central Coordination Committee ("CCC ") of MQM-P . The referred removal was confirmed by the Election Commission of Pakistan ("ECP'')/ respondent No.1 vide the impugned order . In this behalf, respondents No.2 & 3 filed applications under section 4 of the Elections Act, 2017 and under rules 157 and 158 of the Election Rules, 2017 read with sections 209 and 4 of the Elections Act, 2017. Application under section 4 ibid was filed by respondent No.2 and the one under rules 157 and 158 ibid was filed by respondent No.3. 3. On 05.02.2018, the petitioner issued direction that no meeting of the Central Coordination Committee (CCC) shall be called by deputy convener or any other person, however , the meeting was called wherein deliberations were made with respect to awarding of tickets in the Senate elections after which press conference was held. On 05.02.2018, another meeting of CCC was held at the residence of the petitioner and certain disputes cropped up amongst the members of the CCC. The petitioner called an emergent meeting of the General Workers Assembly on 06.02.2018, however , on the request of some members of the CCC, to find out amicable resolution, the meeting was cancelled. On 07.02.2018, again a meeting of the CCC was called which was presided by the Senior Deputy Convener and in the same authority of the petitioner to issue party tickets was withdrawn. On 08.02.2018, the petitioner announced that he shall chair the CCC meeting at MQM-P office situated at Bahdarabad, Karachi in order to deliberate on the issuance of party tickets for the Senate elections. However , on 09.02.2018, he discovered that a group of members of CCC (recalcitrant faction) held meeting on 07.02.2018 wherein the party
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tickets had been awarded. On 09.02.2018, the petitioner issued notice for joint meeting of the General Workers Assembly for 11.02.2018. A meeting of the CCC was convened attended by recalcitrant members (according to the petitioner) and the petitioner was removed as a party leader . The said action was taken without issuance of show cause notice or prior to any intimation to the petitioner . The petitioner , on 11.02.2018, held a meeting of the General Workers Assembly of the MQM and in the same it was resolved that fresh party elections shall be held. In this behalf, process for the same commenced and pursuant thereto he got elected as party leader by the newly elected members of CCC. It is pertinent to observe that results were submitted before ECP on 19.02.2018 and certification was made on 24.02.2018. On 14.02.2018, respondent No.2 filed an application under section 4 of the Elections Act, 2017 with following prayers: "However , for the time being we respectfully pray before this august forum i.e. the ECP to clarify as follows:- a) That the statement of its spokesman broadcasted in the media that the ECP does not acknowledge Dr. Khalid Maqbool Siddiqui to be Convener till such time intra-party elections are held by the MQM(P), is not correct because the requirement to hold intra-party electio ns would not arise once the Convener of the Party is removed by more than 2/3 majority of the Central Coordination Committee, electing a new Convener of the Party , strictly in terms of the Constitution of the Party; b) One the Central Coordination Committee has confirmed that through the required majority and procedure in the Constitution of the party it had removed Dr. M. Farooq Sattar and elected Dr. Khalid Maqbool Siddiqui as Convener in his place, the ECP should categorically state that the ECP recognizes Dr. Khalid Maqbool Siddiqui as the Convener of MQM (Pakistan). This would also be in line with the indoor management rule. 10. Lastly we may just add that the ECP under Article 218(3) of the Pakistani Cons titution is to act fairly, justly and in accordance with law. This means that the ECP would not become partisan and shall enforce the constitution of the political party and take actions accordingly ." Respondent No.1 issued notice to the petitioner with direction to appear before it on 27.02.2018. On 20.02.2018, respondent No.3 filed another application under Rules 157 and 158 of the Election Rules, 2017, wherein the following prayer was made: "8. That it is respectfully submitted that in light of the above it may respectfully be declared and clarified as follows:- a. The respondent had no authority to dismiss/ dissolve the central co-ordination committee and remove its duly elected convener Dr . Khalid Maqbool Siddiqui; b. That the so called intra party elections conducted by the respondent and similarly the consequent central co- ordination committee elected on 18.02.2018 are not in relation to MQM (Pakistan); c. That the office bearers elected by the respondents on 18.02.2018 are also not in relation to MQM (Pakistan); d. That Dr. Khalid Maqbool Siddiqui is the duly elected convener of the MQM (Pakistan), whose allotted electoral symbol by the ECP is "KITE"." Both the applications were clubbed wherein the petitioner filed replies. Moreover , an application was also filed challenging the jurisdiction of ECP. As stated above, the applications filed by respondent No. 2&3 were accepted and the issue of jurisdiction was decided against the petitioner vide the impugned order(s). 4. Learned counsel for the petitioner, inter alia, contended that the Election Commission of Pakistan/ respondent No.1 had no jurisdiction to decide the internal dispute amongst the party members; that the jurisdiction of respondent No.1 as provided in Articles 218 to 220 of the Constitution as well as sections 200-213 of the Elections Act, 2017 do not envisage the decision of Intra- Party Disputes. It was further contended that the contentions raised in the applications filed by the respondent No.2&3 involved factual controversies which could not have been adjudicated by the Election Commission of Pakistan in light of the judgment of this Court titled as Sumaira Malik Vs, Election Commission of Pakistan and Others (2018 YLR 104) as well as Dr, Raja Aamer Zaman Vs, Omar Ayub and others (2015 SCMR 1303). Learned counsel for the petitioner contended next that bare perusal of the applications filed by respondents 2&3 shows that intra-party disputes have been put forwarded before the ECP which was beyond the jurisdiction of respondent No.1 rather under the constitution of the party i.e. Article 17 procedure is provided for resolution of the party disputes. Learned counsel placed reliance on case reported as Sardar Behadur Khan Bangulzai and others Vs,
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Sardar Attaullah Khan Mengal and another (1999 SCMR 1921) to substantiate that inbuilt organizational structural disputes of the political party are not to be adjudicated by respondent No.1. 5. Learned counsel also contended that applications filed by respondents No.2&3 sought certification regarding party leadership as stipulated under section 209 of the Elections Act, 2017 and respondent No.1 does not have any authority to adjudicate the intra-party disputes; that impugned orders recognized illegal change of MQM-P party head; that impugned orders have been passed in violation of Articles 4 and 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 as well as Article 17 ibid. Reliance was placed on case titled as Awais Younus Vs. Federation of Pakistan (PLD 2016 Lahore 1). It was further contended that impugned orders are liable to be set-aside on the ground that they were passed on the basis of forged and fabricated documents. In this behalf, it was contended that minutes of the meeting dated 11.02.2018 show attendance sheet in which 2/3 majority of the CCC is fabricated; that some of the members were not present and the others attended the meeting through Skype which is not permissible and they are not to be counted as part of the meeting and if the same is done, the resolution for removal of the petitioner in the meeting did not enjoy 2/3 majority. 6. Learned counsel further contended that objection to the jurisdiction of respondent No.1 was raised which ought to have been decided at the earliest in light of the decision of the Hon'ble Suprem e Court of Pakistan reported as Lt. Gen. (R) Salahuddin Tirmizi Vs. Election Commission of Pakistan (PLD 2008 SC 735) as well as Muhammad Aslam Bhootani Vs. Deputy Speaker, Balochistan Provincial Assembly and 2 others (PLD 2013 Balochistan 66) as well as Samar Singh Vs. Kedar Nath Alias K.N. Singh (AIR 1987 SC 1926). It was also contended that the ECP has neither a Court nor a Tribunal and cannot adjudicate factual controversies. Reliance was placed on case titled Muhammad Hanif Abbasi Vs. Imran Khan Niazi and others (C.P. No. 35 of 2016). It was further contended that the Election Commission of Pakistan lacks jurisdiction to denotify after conclusion of elections and notification of the results. Reliance was placed cases reported as Syed Khurram Abbas Bukhari and others Vs. Election Commission of Pakistan and others (PLD 2017 Lahore 470) as well as Muhammad Ashraf Vs. Election Commission and others (2017 MLD 1209) as well as Moulana Atta-ur - Rehman Vs. Al-Hajj Sardar Umar Farooq and others (PLD 2008 SC 663). 7. Learned counsel submitted that even internationally intra-party disputes are not interfered by the Regulator / Election Commission. Reliance was placed on California Democratic Party ET Al. Vs. Jones, Secretary of State of California, ET Al. It was further contended that public authorities are permitted to do what they are authorized to do by law. Reliance was placed on case titled Messrs Gadoon Textile Mills and 814 others Vs. WAPDA and others (1997 SCMR 641) as well as Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A and others Vs. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 Supreme Court 642). 8. It was submitted that the party constitution formed a contract amongst its members and respondents No.2&3 have committed breach of that contract. Reliance was placed on United Liner Agencies of Pakistan (Pvt.) Ltd., Karachi and 4 others Vs. Miss Mahenau Agha and 8 others ( 2003 SCMR 132) and Messrs Kingsway Capital LLP and another Vs. Murree Brewery Co. Ltd. and 10 others (2017 CLD 587-Lahore). It was further contended that Qanun-e-Shahadat Order, 1984 is applicable to all judicial and quasi judicial proceedings, therefore, respondents No.2&3 were required to prove the meeting and the change brought about therein. Reliance was placed on Mehram Ali and others Vs. Federation of Pakistan and others (PLD 1998 SC 1445). It was further contended that the directive to indoor management is exception. Reliance was placed on Pak Turk Enterprises (Pvt.) Ltd. Vs. Turk Hava Yollari (2015 CLC 1-Sindh). It was further contended that holistic interpretation required to be made of the entire situation and is to be interpreted accordingly. Finally, it was contended that power to call the meeting vests in the Chairman. Reliance was placed on Nadeem Ahmed, Advocate and others Vs. Federation of Pakistan and others (PLD 2010 Supreme Court 1165). 9. Learned counsel for respondents No. 2&3, inter alia, contended that he has two objections; firstly, it was contended that impugned orders passed by the Election Commission of Pakistan was suspended on the statement of the learned counsel for the petitioner that status quo shall be maintained which the petitioner has breached. In this behalf, it was contended that it is a settled principal of the law that in case the petitioner violates terms of an ad-interim relief, petition is liable to be dismissed without the need of going into the merits of the case. Reliance was placed on Muhammad Imran Vs. Pakistan Electronic Media Regulatory Authority (2005 CLC 880) and Muhammad Hussain Vs. Additional Deputy Commissioner (1986 CLC 816) as well as Dewan Cement Ltd. Vs. Federation of Pakistan (2013 PTD 446). Itrd rd
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was further contended that on 15.4.2018, the petitioner used contemptuous language against superior judiciary and does not deserve the relief under the equitable jurisdiction in a petition under Article 199 of the Constitution. It was also contended that the petitioner did not file any rebuttal to the documents filed by respondents No.2&3 before the ECP despite arguing the matter both on jurisdiction as well as merits; that the petitioner never challenged his ouster as convener before any Court/forum hence he cannot be granted any relief in the instant petition. Reliance was placed on case reported as Khawar M. Butt and another Vs. Abdullah H. Habib and 2 others (1985 MLD 1193) and M/o IPC through Secretary and others Vs. Arbab Altaf Hussain and others (2014 SCMR 1573). 10. It was submitted that the foremost ground of attack by the petitioner is that ECP lacked the jurisdiction. It was contended that parent judgments on the issue are Attaullah Mengal Vs. Chief Election Commissioner (1999 CLC 1460) and Bahadur Khan Bangulzai Vs. Attaullah Khan Mengal (1999 SCMR 1921) which confirms that if two preconditions are present i.e. the matter should concern an inbuilt organizational structural dispute and plea raised before the ECP is not based on any bonafide or reliable material, only then the Commission lacks the jurisdiction. It was contended that phrase "inbuilt organizational structural dispute" has not been defined either in the judgment of Balochistan High Court or in the Judgment of the Hon'ble Supreme Court of Pakistan. However, according to an expert from the American Government and Politics in the Information Age, it is provided that organizational structure of political parties consists of the machinery, procedures, and rituals party leaders and professionals employ so that parties operate effectively in the electoral and governing process. It was further submitted that in order to discern meaning of the phrase help can be drawn from the dictionary. On the basis of it, it was contended that it is clear that dispute before the ECP was not an organizational structural dispute. 11. It was contended that with regard to existence of bonafide, reliable material, the relevant judgment is of Dr. M. Mohan Babu Vs. Chief Election Commissioner (AIR 1999 AP 405). Reliance was also placed on case reported as Watan Party Vs. Federation of Pakistan (PLD 2012 SC 681). In Kanhiya Lal Omar Vs. R.K, Trivedi ( AIR 1986 SC 111), it was held that the Election Commission of India is empowered to recognize political parties and decide disputes amongst them. Reliance was placed on Javed Akhtar Vs. Returning Officer (2004 YLR 1459). 12. Learned counsel contended next that it has been argued that even if the Commission has jurisdiction to decide the controversy, it involves disputed questions of facts which cannot be adjudicated without recording of evidence. It was contended that it is a settled principle that unless prohibited, the Court, Tribunal or a forum can devise, adopt or regulate its procedure which should be fair and just in the circumstances. Reliance was placed on Pakistan Lawyer's Forum Vs. General Pervez Musharraf (2000 SCMR 897), Ahmed Khan Vs. Jewan (PLD 2002 SC 655), Hakim Deen Vs. The State (PLD 2006 AJK 43) and M. Ijaz Chaudhry Vs. Mumtaz Tarar (2016 SCMR 1). Learned counsel further contended that Rule 158(1) of the Election Rules, 2017 provides that after completion of intra-party election, a certificate confirming the fulfillment of requirements is to be filed before ECP and under 158 (2) ibid, the Election Commission publishes the certificate of results after satisfying itself that the law has been complied with. It was further contended that publication after satisfying itself means that the Election Commission of Pakistan can devise procedure for reaching to the just conclusion. Reliance was placed on Abdullah Malik Vs. Ministry of Information (PLD 2017 Lahore 273), Sabar Ali Sajid Vs. M. Maqsood (PLD 2006 Lahore 607). It was argued emphatically that under section 208(4) of the Election Act, 2017 any change in the office bearer of a party is to be duly informed to the ECP expeditiously. 13. Learned counsel also argued that in order to satisfy itself the ECP has ample powers to adopt any procedure which is just and fair. Reliance was placed on The Election Commissioner Vs. P. Kakkan (1971 ILR 2 Madras 80), Abbas Khaleeli Vs. Saifuddin Valika (PLD 1969 Karachi 692) as well as Jahangir Mughal Vs. Karachi Gymkhana (2012 CLC 1829) and Muhammad Fikree Vs. Fikree Development Corporation Limited (1992 MLD 668). 14. Learned counsel further contended that the party constitution did provide calling for the meeting of CCC and passing the resolution. In this behalf, it was contended that the party meeting can be convened in accordance with constitution and it is not the sole prerog ative of the party convener . It was further argued that resolution of the removal of the petitioner was carried with 2/3rd Majority . Analogy was drawn to the meeting of CCC with the Board of Directors of a company and in this behalf reliance was placed on Ram Parsad Somani Vs, The Bank of Rajasthan Limited (2002 (1) WLN 153 Rajasthan High Court) . Learned counsel relied upon Articles 9(i) and (ii) of the party constitution, whereby any office bearer can be removed by 2/3 majority . It was contended that therd
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requisite documents regarding requisition of the meeting, minutes of the meeting and decision of the CCC was placed on record but the petitioner did not file any rebuttal to the same. 15. It was reiterated that resolution was passed with the requisite majority of 2/3 as attendance sheet and affidavits filed clearly show the same. It was contended that once this Court comes to the conclusion that the petitioner was removed by requisite 2/3 majority, this Court cannot replace its findings in a writ petition. Reliance was placed on Lt, Gen, (R) Salahuddin Tirmizi Vs, The Election Commission of Pakistan (PLD 2008 SC 735) and Karachi Shipyard & Engineering Words Ltd, Vs, Abdul Gaffar (1993 SCMR 511). In this behalf, it was submitted that attendance sheet was duly singed by the all members, however, it has been a practice that attendance sheet is signed belatedly/subsequently. Moreover, it was contended that exception was taken with respect to certain members that is Barrister Saif Muhammad Ali Khan Saif, Haider Abbas Rizvi and Izhar Ahmed Khan cannot be counted in as they did not attend the meeting physically but through video link from Islamabad, Canada and UK. In this behalf it was argued that the requisite affidavits were field before ECP hence it was contended that after the ouster of Kamal Malik and Mian Ateeq, the membership dropped down from 35 to 33, and out of 33, 27 members ousted the petitioner which was more than 2/ 3 majority . 16. The petitioner is aggrieved of order(s) passed by the Election Commission of Pakistan, whereby the applications filed by respondents No.2 & 3 were allowed vide orders dated 26.03.2018. The applications in question were filed by respondents No.2 & 3 under section 4 of the Elections Act, 2017 and under Rules 157 & 158 of the Election Rules, 2017. The petitioner has levelled attack on the judgment impugned in the instant petition on two scores. Firstly, that the Election Commission of Pakistan had no jurisdiction to embark upon the controversy raised in the applications and adjudication upon internal affairs of the party i.e. MQM-P. Secondly, that on merits the conclusion reached by the ECP is erroneous and that the meeting of the CCC was illegally convened and it had no authority to remove the petitioner as resolution regarding his removal was not passed with 2/3rd majority as required under the constitution of the party. 17. Before adverting to the above issues, it is just and appropriate to reproduce the relevant provisions of the Elections Act, 2017 and Election Rules, 2017. The first application was filed by respondent No.2 under section 4 ibid which reads as follows: "After the Election Programme has been issued and till the publication of the names of the returned candidates in the officials Gazette, any Government or authority shall not post or transfer any officials appointed or deputed in connection with an election without prior approval in writing of the Commission, including posting or transfer the decision in respect whereof has not been implemented, and the Commission may itself issue necessary directions to any such Government or authority for the posting or transfer of any official." The law governing political parties is provided in chapter 11 of the Elections Act, 2017. The sections relevant for the purposes of the present controversy are sections 207 to 209 of the 2017 Act which reads as follows:- "207. Functioning of a political party. - (1) A political party shall have an elected general council at the Federal, Provincial and local levels, wherever applicable, and by whatever name it may be referred. (2) A political party shall, at least once in a year, convene a general meeting at the Federal, Provincial and local level of a political party, wherever applicable, and shall invite the members of the political party or their delegates to participate in the general meeting. 208. Elections within a political party. - (1) The office-bearers of a political party at the Federal, provincial and local levels, wherever applicable, shall be elected periodically in accordance with the constitution of the political party: Provided that a period, not exceeding five years, shall intervene between any two elections. (2) A member of a political party shall, subject to the provisions of the constitution of the political party, be provided with an eq1ual opportunity of contesting election for any political party office. (3) All members of the political party at the Federal, Provincial and local levels shall constitute the electoral-college for election of the party general council at the respective levels. (4) The political party shall publish the updated list of its central office-bearers and Executive committee members, by whatever name called, on its website and send the list, and any subsequent change in it, to the Commission. 209 Certification by the political party.- (1) A political party shall, within seven days from completion of the intra-party elections, submit a certificate signed by an office-bearer authorized by the Party Head, to the Commission to the effectrd rd rd
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that the elections were held in accordance with the constitution of the political party and this Act to elect the office-bearers at the Federal, Provincial and local levels, wherever applicable. (2) The certificate under sub-section (1) shall contain the following information- (a) the date of the last intra-party elections; (b) the names, designations and addresses of office- bearers elected at the Federal, Provincial and local levels, wherever applicable; (c) the election results; and (d) copy of the political party's notifications declaring the results of the election. (3) The Commission shall, within seven days from the receipt of the certificate of a political party under sub-section (1), publish the certificate on its website." Likewise, the relevant Rules for the purposes of present controversy are Rules 157 and 158 of the Election Rules, 2017 which are as follows:- "157. Scrutiny of political parties' constitution and information, etc. - Where the Commission is of the opinion that the constitution, other documents and information submitted by a political party is not in conformity with the Act, it shall return the same with specific observations to the concerned political party for resubmission in accordance with the provisions of the Act. 158. Submission of certificate to the commission regarding intra-party elections. - (1) The Party Leader of each political party under his signature shall, within seven days of the completion of intra-party elections, submit a certificate to the Commission in Form-65 specifying that the intra-party elections have been held in accordance with the constitution of the party and the provisions of the Act. (2) The Commission shall, after satisfying itself that the…
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