Dual Office Case
– Judgment Sheet
IN THE LAHORE HIGH COURT AT LAHORE JUDICI1’L DEPARTMENT
Writ Petition No. 19561-2009
Pakistan Lawyers’ Forum V5. Federation of Pakistan & another.
Date of hearings:
08.10.2009, 19.3.2010, 29.3.2010 03.5.2010, 17.5.2010, 27.5.2010, 15.6.2010,
21.6.2010, 07.7.2010, 20.9.2010, 04.10.2010, 07.10.10, 22.10.2010, 24.11.2010,
14.12.2010, 10.01.2011, 19.01.2010, 20.1.2011, 24.01.2010, 09.2.2011, 14.2.2011
,03.03.2011,08.3.2011,09.3.2011 & 10.03.2011.
Petitioners by: Mr. A.K Dogar, Advocate for the petitioner.
Respondents by: Respondents ex-parte. Mr. Abid Hassan Minto, Sr. ASC/Amicus Curiae. Mr. S.M Zafar Sr. ASC/Amicus Curiae.
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 ofPakistanto surrender his office of Co-Chairperson of the Pakistan People 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 be non-partisan 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 Constitution, he cannot be a member of a political party. Reference may be made to provisions of Article 63A, Article 43, Article 81 (a), Article 207(1)(a) of the 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 08.10.2009 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 29.03.2010 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 Bench of the Court by order dated 29.03.2010 admitted the petition to regular hearing and issued notice to the respondents for 03.05.2010.
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 27.05.2010. 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 12.05.2010 through the learned Deputy Attorney General and thereafter filed two applications, one bearing CM No.2256-2010, seeking recall of the admitting order dated 29.03.2010 and the other bearing NO.2339-2010 raising objection that CM NO.2256-2010 be decided before further progress in the proceedings.
5. CM No.2256-2010 was perused on 21.06.2010 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 alongwith the main case. When that order was announced in Court all 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 CM 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 alongwith 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 CPC, served on him.
6. Nevertheless, after giving ample opportunity on three dates of hearing, the respondents were proceeded against ex-parte on 07.10.2010; 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 07.10.2010 appointed Mr. Abdul Hafeez Pirzada, Mr. 8.M Zafar, Mr. Abid Hassan Minto learned Senior Advocates of Supreme Court of Pakistan as amicii curiae to assist the Court on the legal points raised in the petition. We acknowledge with appreciation the response 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 A8C 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 S.C 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 teamed 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, wellbeing 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 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. Whilst adjudicating the validity of the Presidential Order dated 18.04.1993 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 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 anyone 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 ofPakistan. 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, Ajmal Mian, J. noted:
I may; 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 Siddique, 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 off 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 lose his image as the neutral arbiter in national affairs and as a symbol of unity of Federation under the Constitution. In the latter event, his conduct may also come under criticism from those who may feel betrayed.”
13. The forgoing pronouncements on the obligation of 4 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 18.04.1993.
15. To the extent that the President of Pakistan also holds in his private capacity the office of the 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 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 from 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, interalia, include service as Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Special Assistant to Prime Minister, 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 any 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 amicii 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, 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 party 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 merely 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 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 . VS. Federation of Pakistan (PLD 1997 S. C 426) at page 520 and Zafar Ali Shah VS. Gen. Pervez Mushraf (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 A political acts or affiliation by the President In contrast 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 reference to practice adopted by the constitutional Heads of State of Pakistan, he has shown that except for Quaid-e-Azam Muhammad Ali Jinnah, other incumbents who had previous political background did not sever their connection with their political parties on the assumption of office. These include Kh. l’Jazim-ud-Din and Iskander Mirza, as Governor Generals. Iskander Mirza, Zulfiqar Ali Bhutto, Fazal ,Elahi Chaudhry and Farooq 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 curiae 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 & 63 of the Constitution for election to the office of President incorporate the qualifications meant for election to Parliament and the Provincial Assemblies. These 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 re-consideration 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 an apolitical 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 to the second point of the petitioner urging that the office of the President is in the service of Pakistan under Article 260 of the Constitution, Mr. Minto has answered with the rhetoric question: how can a Head of State also be a servant of the State? He has relied on Pakistan Tehrik-e Inailab vs. Election Commission ot Pakistan(1997 MLD 3167) and Mian Shahbaz Sharif vs. Altat Hussain(1995 Lahore 541) to assert that all constitutional offices are beyond the scope of service of Pakistan.
25. Finally, the learned amicus curiae supports the view of the Hon’ble Supreme Court laid down in Mian Muhammad Nawaz Sharifs case that a President must observe neutrality and impartiality in the discharge of his functions and must remain aloof from all controversies in order to represent the unity of the State. However, he has emphasized that the foregoing principle enunciated by the Hon’ble Supreme Court is derivative in content rather than being based on an express constitutional prohibition. Therefore, in his view the appropriate action to check it lies through Parliament under Article 47 of the Constitution. On the other hand, he has underlined that the superior Courts of the country have time and again .protected state and public property from being misused for a purpose extraneous to the Constitution and the law. In this regard, he submits the Presidency is a state property which is under the provisions of the Constitution, including Article 41(1) thereof, meant to be used solely for the unity of the Republic. Partisan gathering of one or the other political party makes the premises of the Presidency a host to political disputes. political wrangling and political bargaining which engenders controversy and is alien to the sanctity, dignity and impartiality of the Presidency. Accordingly, he submits that a direction may be given to protect the property of the state from use for any political activity or partisan interest.
26. We have heard and pondered the arguments made by learned counsel for the petitioner and the valuable assistance rendered by two learned amicii curiae with great anxiety and deliberation. Constitutional issues are not resolved solely by reference to facts of a case or the literal meaning of the words of a provision in the constitution/in isolation but through an enlightened and harmonious construction of the Constitution as a whole. Reference is made to Shahid Nabi Malik VS. Chief Election Commissioner (PLD 1997 S.C 32) at page 49. The case of the petitioner translates to a simple question whether Article 41 (1) of the Constitution can be given effect in the light of the other provisions of the Constitution. The view of the Hon’ble Supreme Court in Mian Muhammad Nawaz Sharif’s case that expects neutrality and impartiality to be a quality of the office of the President of Pakistan is predicated on the notion that contrary conduct will bring controversy to the office. That when the highest office of the State becomes controversial then such a state of affairs erodes the unity of the State.
27. Since government is the outcome of politics therefore political priorities, principles and objects define governmental action. Proviso to Article 48(1) of the Constitution allows the President of Pakistan by exercise of his judgment to require a government decision to be reconsidered but he cannot reverse the same. Therefore, if there is a bad political decision by the Government, the President cannot be held responsible for it. The constitutional scheme of Article 48(1) therefore operates to protect the President against any political backlash and the executive government alone is made accountable for its controversial decision. It is often that in a scenario of political controversy and turmoil, governments face crises and some may even fall before the political opposition. That the office of the President must survive
such crises with pristine neutrality and be a unifying force in the polity is necessary for ensuring smooth transition of the parliamentary democracy to the next government under Article 91 (7) of the Constitution. On the other hand in a case where the President himself becomes embroiled in a political controversy or crises that surrounds the government then he becomes equally vulnerable to the consequence of political turmoil. thereby destroying the very purpose for which the lofty office of President is built in the Constitution.
28. The constitutional history of the country shows that both in 1993 and 1996 when the President of Pakistan exercised his constitutional power to dismiss the government and dissolve the National Assembly under Article 58(2)(b) of the Constitution, such a political decision made the incumbent controversial and ineffective, with the result that he could not survive to complete his term of office. It was during the circumstances of such an upheaval and controversy that Article 41 (1) of the Constitution was interpreted by the Hon’ble Supreme Court in the Mian Nawaz Sharif’s case resulting in a prescient foreboding about the essential attributes and qualities of the office of the President. That view cannot be lightly ignored merely because the presidential power of dismissal of government and dissolution of the National Assembly has been repealed. In our rapidly changing times there can be other occasions and sources of political controversy that can surround the high office of the President of Pakistan where by the trust and confidence of the people in the office is undermined and therefore the dignity and authority of the State is eroded.
29. In so far as this Court is concerned, every principle of law laid down by the Hon’ble Supreme Court of Pakistan has force of binding precedent under the provisions of Article 189 of the Constitution. It is well settled that the force of the Hon’ble Supreme Court’s precedent is not subservient to the rule of ratio decided and holds good even in relation to obiter dicta so long as the principle of law is clearly laid down. Reliance in placed on Justice Khurshid AU Bhindar ys. Federation of Pakistan(2010 S.C 483) and All Pakistan ewspapers Society YS. Federation of Pakistan (PU~ 2004 S.C 600). Accordingly, both as a matter of its constitutional duty to follow the binding precedent of Hon’ble Supreme Court as well as the prudence and rationale of such precedent and on the criteria of Article 48(1) read with Articles 90, 91 (7) & 99 of the Constitution, it is incumbent that the Court performs its duty under law to enforce principle of law laid down in the Mian Muhammad Nawaz Sharifs case. To do so would fulfill the duty of the Court to enforce the constitution as visualized in Dr. Mubashar Hassan VS. Federation of Pakistan PLD 2010 S.C.265 at page 389).
30. It must be noted at this stage that both the learned amicii curiae have give forceful and cogent grounds as well as precedents to rebut the challenge of the petitioner based on Article 17(2) of the Constitution. To avoid repetition, the Court approves the grounds of rebuttal to dispel the said ground of challenge. Likewise CM NO.2256-2010 claims the lack of constitutional prohibition on the subject and the non binding effect of judgment of the Hon’ble Supreme Court to be preliminary objections. These amongst other points are elaborately dealt with in this judgment which goes to show that the Court had rightly fixed CM NO.2256-2010 for hearing alongwith the main petition. Another point that captured the attention and exertions of the learned amicii is the amended prayer made in the writ petition. By such amendment, it was prayed that the respondent No.2, President of Pakistan be disqualified to hold his office on account of the challenge made in the petition. However, in his reply to the argument by the learned amicus curiae, the learned counsel for the petitioner has sought to withdraw the said prayer for disqualification of the President of Pakistan and instead has emphasized and reiterated the first prayer
already mentioned at the outset in this judgment. Accordingly, he urges that the respondent No.1, Federation of Pakistan, be directed to apply the law and ask the respondent No.2, President of Pakistan to surrender his political office.
32. A party cannot be allowed to blow hot and cold in the same breath but that is not so in the present case. By withdrawing the prayer for disqualification the learned counsel for the petitioner has shown respect for the provisions of the Constitution and the high office of the President. Indeed as visualized in Article 47 of the Constitution recourse of disqualification is available only with the Parliament in joint session and the Court shall not by collateral means transgress that constitutional limitation. However, the Court is always empowered to grant such relief as the justice of a case demands. This is the principle of moulding relief which has been recognized and approved by the Hon’ble Supreme Court of Pakistan in Hakim Ali Zardari vs. The State(PLD 1998 S. C. 1) and Mst. Amna Begum vs. Mehr Ghulam Dastgir(PLD 1978 S.C. 220). Accordingly it is open for the Court in the present case to mould the relief in a manner that addresses the grievance without deviating from or disturbing the scheme of the Constitution.
33. Although learned advocates who have assisted the Court did not address the point but the Court is aware that the high office of the President of Pakistan enjoys immunity from certain legal proceedings under Article 248 of the Constitution. Therefore it ought to be examined whether on account of the provisions of Article 248(1) of the Constitution any direction can be issued to the President of Pakistan in “this case. Article 248(1) of the Constitution is reproduced below:
“The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions.
Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province.”
34. The immunity of high constitutional functionaries mentioned in Article 248 has been the subject of considered judicial pronouncement. The basic authority on the nature and ambit of said constitutional immunity is Ch. Zahur Ilahi Vs. Mr. Zulfiqar Ali Bhutto and 2 others (PLD 1975 S.C. 282). The Hon’ble Supreme Court extended immunity to the Prime Minister in relation to the content of his speech that was allegedly made in contempt of Court. With reference to the facts of the case, the grant of immunity to the Prime Minister and a Minister was explained by Hamoodur Rehman C.J. as being grounded on the possibility that the objectionable words had been uttered by the Prime Minister in the discharge of his office and not in his personal capacity :
“Applying this principle in the present case, we are not in a position to say that any clear-cut demarcation can be made between the various capacities of the Prime Minister when making the speech complained of. It cannot be said that this much was within the scope of the functions and powers of the Prime Minister and this was not, because, even the learned counsel for the petitioners found it difficult to say that the Prime Minister was not acting as Prime Minister was not acting as Prime Minister when he was making a speech before the public explaining his policies or the conditions prevailing in the country. It is not uncommon these days for leaders of political parties heading a Government as Prime Minister, to address public meetings for explaining or justifying the policies of his Government with regard to the state of affairs prevailing in the country, particularly, when public opinion is perturbed by drastic actions of the Government in power, as in the present case. For these and circumstances of this case the Prime Minister and the Minister for Interior and States were entitled to the immunity given by Article 248 of the Constitution.”
35. The forgoing example is cited to cater the notion that in the absence of an express prohibition under the Constitution, the President of Pakistan is permitted to participate in the affairs of a political party. Therefore such permissible actions under the Constitution would enjoy immunity under Article 248(1) thereof. In the background of the interpretation given by the Hon’ble Supreme Court to the role, attributes and qualities the office of President of Pakistan such a view would be wholly inconsistent and misconceived. Therefore in the circumstances of the present case and on the material of newspaper cuttings that have been attached to the petition and have been filed on record, there is ample evidence that the meetings of the party in government, of which the President is a Co-chairperson, are regularly held in the Presidency. These meetings result in decisions that are announced to the public, otherwise have political repercussions and draw reactions that may be adverse. It is a longstanding principle that newspaper reports about the events that are not rebutted are treated as reliable evidence. Refer Islamic Republic of Pakistan vs. Abdul Wali Khan, MNA (PLD 1976 SC 57) at page 112 and reiterated recently in Sindh High Court Bar Association vs. Federation of Pakistan (PLD 2009 SC 879) at page 1119. The participation of the President of Pakistan in the above political party decisions is extraneous to the duties and functions of his high constitutional office and therefore such participation and decisions cannot be treated as being done in the performance of his duties and functions as President and therefore immune under Article 248 of the Constitution. The test is laid down in Muhammad Sharif vs. Federation of Pakistan (PLD 1988 Lahore 725) at page 735 as follows:
“The act done or purporting to be done must bear such close and intimate relation to the duty or the function, so that the person concerned can lay a reasonable claim, but not a pretended claim that he did it in the exercise of powers for performance of functions given to him by the Constitution. The personal immunity from legal action does not place the acts of the President or the Governor, done or purporting to done in pursuance of their powers and duties under the Constitution, beyond the scrutiny of the Courts. What the Constitution establishes is the supremacy of law and not of men, however, highly placed that may be. Though the immunity provided by the Constitution gave full immunity but only so long as the person was not guilty of dishonesty or bad faith. This did not preclude the acts of the Governor from being questioned, if they could be done without issuing a process on him and the Constitution itself recognized that this immunity would not restrict any person to bring appropriate proceedings against the government.”
36. The fact that the President of Pakistan in his capacity as a Co-chairperson of a political party is taking political decisions in the presidency has two aspects. Firstly, such action is inconsistent with his obligations and attributes as envisaged by the Constitution. Secondly, as pointed out by learned amicus curiae Mr. Abid Hassan Minto, Senior ASC such action involves property of the state, namely, the premises of the Presidency as a seat of partisan political activity aimed at strengthening and consolidating the political authority of a particular political party. Leaving aside any constitutional limitation imposed on the person of the President as the protagonist of such activity, the conduct fo such activity
within the Presidency breaches the sanctity, dignity, neutrality and lofty status of a highly revered State property. It is banal that the said public property can be used only for the purposes of State and not for any partisan purpose.
37. Consequently, whilst assessing the relief that may be granted in this case, it may be observed that this is clearly not a case for disqualification of the President. Equally, it is not a case for a prohibitory order as the President is engaging in an activity that not barred under law. This is a case where the President is exposing himself and hit lofty office to likely controversy that can erode the public trust and respect necessary for such office to represent the unity of the Republic. Also in this regard the premises of the Presidency that enjoy the highest sanctity in the public eye is being subjected to use of partisan political interest. That can lower its esteem and sanctity. These actions are being taken not in the discharge of the functions and duties of the President of Pakistan but on account of a personal and private association of the President with his political party. These actions therefore do not enjoy immunity from the judicial process and cal for judicial intervention to enforce the Constitution.
38. The nature of intervention in the present case is, however, guided by a number of considerations, namely: notwithstanding adverse editorial opinion, there is no report of any political controversy or reaction, whether within the Parliament or in the public, against any action taken by the President in the discharge of his dual office as Co-chairperson of his political party. It is also relevant that the objection now being adjudicated by the Court has been raised for the first time for judicial consideration in the present factual matrix. The manifestation of the principle laid down in Mian Muhammad Nawaz Sharif’s case occurred in a completely different environment of hostility, upheaval and judicial rejection on the merits of the action. No such environment exists in the present case. Therefore, this is also not a case for immediate prohibitory action.
39. Accordingly, in the circumstances of the present case and on the basis of law declared by the Hon’ble Supreme Court in the Mian Muhammad Nawaz Sharif’s case, it is declared that the duties and functions of the lofty office of the President of Pakistan is to be discharged by him with complete neutrality, impartiality and aloofness from any partisan political interest. Consequently, it is expected that the President of Pakistan would abide the foregoing declaration of law to disassociate himself from political office at the earliest possible.
40. Also in the foregoing respect, it is declared that the use of the premises of Presidency for partisan political activity is inconsistent with the sanctity, dignity, neutrality and independence of the Presidency. Here again it is expected that the President of Pakistan would cease the use of the premises of the Presidency for the purposes and political meetings of his party. Writ petition disposed of in the above terms.
(Ijaz Ahmed Chaudhry)
(Umar Ata Bandlal)
(Ch. Iftikhar Hussain)
(Ijaz ul Ahsan)
Announced in open Court on12-05-2011