IN THE SUPREME COURT OF PAKISTAN
Constitution Petition No._________ of 2012
Chairman Pakistan Tehreek-e-Insaf,
St 84, G-6/4, Islamabad
National Assembly of Pakistan,
National Assembly Secretariat, Islamabad.
2. Syed Yousuf Raza Gillani,
Member National Assembly/Prime Minister of Pakistan,
Prime Minister Secretariat, Islamabad.
3. Federation of Pakistan,
through Secretary Law, Justice and Parliamentary Affairs,
Pakistan Secretariat, S- Block Islamabad.
4. Election Commission of Pakistan,
through its Secretary,
Constitution Avenue, Islamabad.
CONSTITUTION PETITON UNDER ARTICLE 184(3) OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN 1973
I. The Petitioner is the Chairman of Pakistan Tahreek-e-Insaaf, a political party formed under Article 17 of the Constitution and registered under the Political Parties Ordinance, 1962. The Petitioner believes in the rule of law and supremacy of the Constitution of Pakistan and in this regard the Petitioner has been relentlessly working now for several years to inform and educate the masses of Pakistan and to prepare them for true and substantive democracy and to realize the dream of the father of the nation, Quaid-e-Azam Muhammad Ali Jinnah as envisaged in the preamble of the Constitution of Pakistan. The Petitioner and his party and the masses of Pakistan have a fundamental right to have access to justice before an independent judiciary which includes the implementation of the decisions of the highest Court of the country and as citizen of Pakistan has also a constitutional and legal duty to protect the independence of the judiciary and democratic system of Pakistan as guaranteed by the Constitution. As a result of the acts/omissions of some of the Respondents, fundamental rights of the Petitioner and the public at large have been violated, the Petitioner therefore most respectfully invokes the constitutional jurisdiction of this Honourable Court.
QUESTIONS OF LAW OF PUBLIC IMPORTANCE
II. That the following substantial questions of law of public importance with reference to the enforcement of fundamental rights are hereby raised for the consideration and adjudication by this Honourable Court:-
- Whether the enforcement of the orders/judgments passed by this Honourable Court is an integral part of the judicial power of this Honourable Court under the Constitution?
- Whether under the Constitution of Pakistan, judicial power vested in the Supreme Court could be over-ridden or ignored by any other authority including the Speaker of the National Assembly? Whether a decision made by the Supreme Court could be virtually set aside or ignored by Respondent No.1?
- Whether in a matter relating to the question of disqualification of a member of the National Assembly under Article 63(2) of the Constitution, the Speaker of National Assembly/Respondent No.1 is not clothed with the power to adjudicate upon the issue of disqualification of a member of National Assembly on her own?
- Whether in respect of the issue of disqualification of a member of National Assembly, the Election Commission of Pakistan (hereinafter called the "Election Commission") is the only competent forum/authority under the Constitution vested with the power to adjudicate upon the question of disqualification of a member of Parliament?
- Whether Respondent No.1 through her decision dated 24.05.2012 usurped the jurisdiction of the Election Commission of Pakistan by entering upon merits of the case by deciding herself the question of disqualification of Respondent No.2?
- Whether the decision of Respondent No.1 dated 24.5.2012 is clearly against the independence of the judiciary and principles of social justice enshrined in the preamble of Constitution and Objectives Resolution made (substantive part of the Constitution of Pakistan under Article 2 A?
- Whether the decision of Respondent No.1 was not against the doctrine of separation of powers/trichotomy of powers as envisaged by the Constitution of Pakistan?
- Whether Respondent No.1 has acted malafide and without jurisdiction while giving her decision dated 24.5.2012? Whether the decision so given is void ab initio?
- Whether Respondent No.1 being the Speaker of the National Assembly of Pakistan was constitutionally bound to act impartially and fairly and regardless of her political affiliation?
- Whether the decision dated 24.05.2012 was not a nullity in the eyes of Constitution and law being malafide?
- Whether the decision of Respondent No.1 dated 24.5.2012 is in excess of jurisdiction and thus void ab initio?
- Whether the decision of Respondent No.1 dated 24.05.2012 in respect of the disqualification of Respondent No.2 was made by taking into account extraneous considerations and being ultra vires the power of Respondent No.1 under Article 63 (2) of the Constitution?
- Whether the decision of the Respondent No.1 dated 24.5.2012 is colourable exercise of the power vested in her?
- Whether the decision of the Respondent No.1 dated 24-5-2012 is an exercise of authority for collateral purposes and thus clearly malafide?
- Whether the said decision of the Respondent No.1 clearly reflects her bias in favour of the Respondent No.2 and against enforcement of the decision of the Supreme Court dated 26-4-2012? Whether the said decision is vitiated on account of bias?
- Whether the decision of Respondent No.1 dated 24-5-2012 is based on misreading and non-reading of the judgment of this Honourable Court dated 26-4-2012 by stating that no specific charge regarding defaming and ridiculing the judiciary was framed against Respondent No.2? Whether the Respondent No.1 failed to notice that the charge-sheet against Respondent No.2 referred to clause (2) of the Article 204 of the Constitution specifically includes the scandalization of the court and bringing the court into hatred, ridicule or contempt?
- Whether the Respondent No.1 ignored the provision of Section 18 of the Contempt of Court Ordinance 2003, which contains the provisions of Contempt of Court like scandalization of the court or tendency to bring the court into hatred or ridicule?
- Whether the Respondent No.1 could sit in judgment over the findings of the Supreme Court contained in judgment dated 26-4-2012? Whether the Speaker of the National Assembly while exercising her authority under Article 63(2) of the Constitution can act as an appellate forum over the judgment of the Supreme Court?
- Whether the Respondent No.1 has virtually usurped the jurisdiction of Appellate Bench of the Supreme Court under Section 19 of the Contempt of Court Ordinance 2003?
- Whether the Respondent No.1 did not read the judgment of the Supreme Court dated 26-4-2012 and has proceeded in ignorance of various important portions of the judgment?
- Whether the failure to refer the matter to the Election Commission of Pakistan under Article 63(2) would constitute obstruction of access to justice?
- Whether the Respondent No.1 has abused her jurisdiction and betrayed her bias while expressing displeasure over the communication of the short order dated 26-4-2012 by the office of Registrar of this Honourable Court?
- Whether the Respondent No.1 has gone way beyond her jurisdiction and constitutional role while exaggerating her position?
- Whether the Speaker, due to her place in protocol, entitles her to sit in judgment over the decision of the Supreme Court?
- Whether after the judgment of this Honourable Court dated 26-4-2012, it could not be stated that no question has arisen for reference under Article 63(2) of the Constitution for disqualification of Respondent No.2?
- Whether the references made in the order of Respondent No.1 to substantiate her decision are irrelevant and baseless?
FACTS OF THE CASE
III. That the present Constitution Petition arises out of the following facts:
- That this Honourable Court through its judgement dated 16.12.2009 declared the National Reconciliation Ordinance, 2007 void ab inito. While declaring it void, this Honourable Court was pleased to declare that " as a consequence whereof all steps taken, actions suffered and all orders passed by whatsoever authority, any orders passed by the Courts of law including the orders of discharge and acquittals recorded in favour of accused persons, also declared never to have been -------------."
Similarly, in paragraphs 178 of the judgement this Honourable Court was pleased to observe as under " since the NRO, 2007 stands declared void ab initio, therefore, any actions taken or suffered under the said law are also non est in law and since the communications addressed by Malik Muhammad Qayyum to various foreign authorities/courts withdrawing the requests earlier made by the Government of Pakistan for mutual legal assistance; surrendering the status of civil party; abandoning the claims to the allegedly laundered moneys lying in foreign countries including Switzerland, have also been declared by us to be unauthorized and illegal communications and consequently of no legal effect, therefore it is declared that the initial requests for mutual legal assistance; securing the status of civil party and the claim lodged the allegedly laundered money lying in foreign countries including Switzerland are declared never to have been withdrawn. Therefore the Federal Government and other concerned authorities are ordered to take immediate steps to seek revival of the said requests, claims and status.
2. That it is submitted that despite the above-said clear directions contained in the said judgement of this Honourable Court, the Federal Government did not take any stops towards the implementation of the said part of the judgement. This Honourable Court, on 29.3.2010, took up suo motu action on a news item as a result of the promotion of one Riaz Ahmed Sheikh who was an NRO beneficiary and a close friend of the President Zardari. From that date till 16.12.2012, there is a sad story of defiance, trickery and contrivance played by the Federal Government through various characters to the effect that no matter what, the Judgement of this Honourable Court was not be implemented come what may. This open disregard to the judgement of this Honourable Court by the coordinate branch of the Government threatened the safe administration of justice in the state of Pakistan and also the rule of law and independence of the judiciary and clear violation of oaths sworn by various constitutional functionaries including Respondent No.2.
3. That since the matter related to ill gotten wealth plundered by the Chairman of the ruling political party, Respondent No.2, despite having taken the oath to preserve and protect the Constitution, is actually showing his utmost loyalty to his party Chief even to the point of betraying the Constitution. It was in these circumstances, the whole system was at a stake when this Honourable Court on 16.1.2012 was pleased to issue a show cause notice to Respondent No.2 under Article 204 of the Constitution read with section 17 of the Contempt of Court Ordinance, 2003.
4. That pursuant to above-said proceedings initiated by this Honourable Court, Respondent No.2 decided to defend his stance through his legal counsel and the case for the Respondent No.2 was argued for about 22 days, excluding the time gained through the filing of an intra court appeal against an interim order. This Honourable Court was pleased to convict Respondent No.2 through its short order dated 26.04.2012 in the following terms:
" for reasons to be recorded later, the accused Syed Yousuf Raza Gillani, Prime Minister of Pakistan, /Chief Executive of the Federation, is found guilty and convicted for contempt of court under Article 204 (2) of the Constitution of Islamic Republic of Pakistan, 1973 read with section 3 of the Contempt of Court Ordinance, 2003 for willful flouting, disregard and disobedience of this Court's direction contained in paragraph 178 of the judgement delivered in the case of Dr. Mobashir Hassan v. Federation of Pakistan ( PLD 2010 SC 265) after our satisfaction that the contempt committed by him is substantially detrimental to the administration of justice and tend to bring the Court and judiciary of this country into ridicule
As regard the sentence to be passed against the convict we note that the findings and conviction for contempt of court recorded above are likely to entail some serious consequences in terms of Article 63(1) (g) of the Constitution which may be treated as mitigating factors towards the sentence to be passed against him. He is therefore punished under section 5 of the Contempt of Court Ordinance, 2003 (Ordinance, 2003) with imprisonment till the rising of Court today.
5. That Respondent served the above-referred sentence and as result thereof also took advantage of the mitigating circumstance. Respondent No.2 did not make any request for the suspension of the sentence or conviction despite the fact that under said law a right of appeal was there. Respondent No.2's belligerent and defying conduct continued to undermine the rule of law and challenge the safe administration of justice. Respondent No.2 since then has made several statements in press and before the electronic media clearly showing his disdain for the rule of law. Respondent No.2 has been propagating his malicious and defamatory opinions at various fora and has been acting in a manner which is prejudicial to the independence of the judiciary and tends to bring the judiciary into ridicule and has undermined the administration of justice.
6. That the conviction of Respondent No.2 and his subsequent conduct, statements and utterances clearly amounted to his disqualification from being a member of the National Assembly of Pakistan. That in this regard, Respondent No.1 was conveyed the order of this Honourable Court through the office of Registrar, Supreme Court, and thus information was placed before Respondent No.1 in respect of the disqualification of Respondent No.2 for sending a reference to the Election Commission for its decision in accordance with the Constitution and law.
7. That Respondent No.1 kept sitting over the matter for almost a month with the deliberate and malafide purpose to delay the matter and to gain more time for Respondent No.2 and ultimately on 24.05.2012 passed an order in the following terms:
"11. In the light of what has been stated above, I am of the view that the charges against Syed Yousaf Raza Gillani are not relatable to the grounds mentioned in paragraph (g) or (h) of Article 63, therefore, no question of disqualification of Syed Yousuf Raza Gillani from being a member arises under clause (2) of Article 63 of the Constitution. The letters of Assistant Registrar (IMP) for Registrar of the Supreme Court stands answered. Furthermore, the petition of Moulvi Iqbal Haider, Advocate being without any merit is not maintainable and accordingly rejected"
- That the Respondent No.2 has announced that he would not be filing appeal against judgment dated 26-4-2012. It means that the conviction of Respondent No.2 has attained finality. In any case, the period of limitation provided under Section 19 of the Contempt of Court Ordinance, 2003 has already expired.
- That the decision not to challenge the judgment dated 26-4-2012 in an intra court appeal clearly shows that the Respondent No.2 regards the Respondent No.1 as virtually the appellate authority over the judgment of this Honourable Court.
GROUNDS OF PETITION
IV. That the above-said decision of Respondent No.1 is without jurisdiction, void, without lawful authority and of no legal effect inter alia on the following grounds:
(a) That the decision of Respondent No.1 dated 24.5.2012 is without jurisdiction inasmuch as under the Constitution of Pakistan the judicial power is vested in the judiciary to the exclusion of any branch of the Government. That a decision made pursuant to the said judicial power cannot be set aside and/or ignored except in the manner provided in the Constitution or the law. This Honourable Court through its short-order dated 26.04.2012 convicted Respondent No.2 for the contempt of the order of this Honourable Court which has attained finality. The Impugned Order amounts to interference with the judicial power of this Honourable Court and is therefore void.
(b) That the Impugned Order is void inasmuch as it appears to have been passed in exercise of some imaginary judicial power, beyond the Constitution, vested in Respondent No.1 which clearly tantamount to undermine the independence of the Judiciary as guaranteed by the Constitution.
(c) That under Article 63 (2) of the Constitution, the function of Respondent No.1 is only administrative and no judicial or quasi-judicial powers have been conferred upon Respondent No.1. It is clear from the Impugned Order that Respondent No.1 sat in appeal over the decision of this Honourable Court to determine the question of disqualification of Respondent No.2 on her own. It is most respectfully submitted that Respondent No.1 has no such powers to adjudicate upon the issue of disqualification and therefore the Impugned Oder is on the face of it without jurisdiction.
(d) That under the Constitution of Pakistan, the power to decide the question of disqualification of a member of the National Assembly/Senate (Majlis-e-Shoora) has been exclusively vested in the Election Commission of Pakistan. Election Commission of Pakistan is the final authority to determine and decide as to whether a member has become disqualified upon a reference from the Speaker/Chairman of the Senate. It would be seen that under Article 63(2) in case of failure of Speaker/Chairman to refer the question to the competent authority i.e. the Election Commission, there is a deeming provision whereunder after 30 days the same should be deemed to have been referred to Commission. It clearly shows the intent of the Constitution makers that no adjudicating power was vested in Respondent No.1. It is further submitted that a limited power to ascertain the seriousness of the question of disqualification raised has been conferred upon the Speaker to save the members from harassment. In the present case however, in view of the judgment of this Honourable Court, Respondent No.1 did not have to ascertain validity of the question of disqualification arising against Respondent No.2 as he had been convicted and has also served the sentence and also took the benefit of the mitigating circumstances. It is therefore submitted that the Impugned Order was passed on extraneous consideration and by not taking into account circumstances relevant for the question of disqualification of Respondent No.2.
(e) That the decision dated 24.5.2012 undermines the independence of the judiciary inasmuch as the whole context of conviction of Respondent No.2 has been ignored. The decision of this Honourable Court declaring NRO Ordinance un-constitutional was a milestone towards a corruption free society and the Government. Respondent No.2 as the Chief Executive of Pakistan, having been given clear directions to implement the judgement of the Honourable Court, was bound to do so under Article 190 of the Constitution, but by his deliberate and willful acts and utter disregard of the direction has undermined the independence of the judiciary, substantive democracy and rule of law.
(f) That the decision of Respondent No.1 dated 24.5.2012 violates the constitutional balance, separation of power and doctrine of tri-chotomy of power. It is submitted that decision of this Honourable Court dated 26.4.2012 whereunder Respondent No.2 was passed in accordance with the law and the Constitution. Respondent No1, being member of the legislature/ a coordinate branch had no constitutional authority to sit in appeal over the decision of this Honourable Court and the decision of Respondent No.1 is therefore void as the same was passed in violation of the doctrine of trichotomy of powers as provided by the Constitution.
(g) That the decision of Respondent No.1 was made malafidesand in total disregard to principles of democracy. Respondent No.1 who owes her existence and membership to ruling political party, as she was not directly elected and came to the House on special quota, was inherently disqualified to act fairly, justly and to follow the Constitution.
(h) That the decision of the Respondent No.1 dated 24.5.2012 is evidently an abuse of power vested in her. The decision of Respondent No.1 is clearly meant to benefit her political bosses namely the Respondent No.2 and Mr. Asif Ali Zardar, President of Pakistan.
(i) That the said decision of the Respondent No.1 is clearly based on her bias in favour of Respondent No.2 and is designed to obstruct the enforcement of the decision of the Supreme Court dated 26.4.2012. Thus, the decision is vitiated in view of the evident and transparent bias floating on the face of the said decision.
(j) That the decision of the Respondent No.1 dated 24.5.2012 is clearly based on misreading and non reading of the judgment of this Honourable Court dated 26.4.2012. The Respondent No.1 has held that no specific charge regarding contempting and ridiculing the judiciary was framed against the Respondent No.2. She has failed to read the charge sheet which clearly mentions that the Respondent No.2 was being charged for contempt within the meaning of clause (2) of Article 204 of the Constitution. Clause (2) of Article 204 is reproduced as under:
"(2) A Court shall have power to punish and person who---
(a) abuses, interferes with or obstruct the process of the Court in any way or disobeys any order of the Court;
(b) scandalizes the court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;
(c) does anything which tends to prejudice the determination of a matter pending before the Court; or
(d) does any other thing which, by law, constitutes contempt of the Court."
From the above, it is crystal clear that scandalization of the court or bring the court into hatred or ridicule is well within the meaning of Clause (2) of Article 204 with which Respondent No.2 was charged. Hence, the decision is based on misreading and non reading of the judgment of this Honourable Court dated 26.4.2012.
(k) That similarly the Respondent No.1 ignored the provision of Section 18 of the Contempt of Court Ordinance 2003 which gives some of the ingredients of the contempt of court including scandalization of court and bring the court into hatred or ridicule. Thus, the Respondent No.1 has failed to apply her mind to this provision of the law.
(l) That the Respondent No.1 had no authority or jurisdiction to sit in judgment over the findings of the Supreme Court contained in the judgment dated 26.4.2012. She will be only exercising her limited jurisdiction under Article 63(2) of the Constitution, which cannot be deemed to be appellate powers over the judgment of the Supreme Court. The Respondent No.1 was bound by the judgment under Article 189 of the Constitution and she will be bound to act accordingly.
(m) That the Respondent No.1 virtually usurped the jurisdiction of the Appellate Bench of the Supreme Court within the meaning of Section 19 of the Contempt of Court Ordinance, 2003 by making a decision as if she was hearing an appeal against the judgment dated 26.4.2012. It is also obvious from the decision of the Respondent No.2 not to file the appeal under Section 19 of the Contempt of Court Ordinance, 2003 because he believes that after the decision of the Speaker under Article 63(2) there was no need of filing an intra court appeal before the larger bench of the Supreme Court.
(n) That it is obvious from the decision of the Respondent No.1 that she has acted in ignorance of judgment of the Supreme Court dated 26.4.2012. It is also obvious that she has failed to read various important portions of the judgment. She thus disregarded the judgment of this Honourable Court dated 26.4.2012 and has thus undermined the independence of judiciary.
(o) That by refusing to send reference to the Election Commission of Pakistan (Respondent No.4), the Respondent No.1 has obstructed the access of justice and exercise of constitutional jurisdiction by the Election Commission of Pakistan.
(p) That it is pertinent to mention here that the Respondent No.1 has unnecessarily expressed her displeasure over the communication of short order dated 26.4.2012 by the office of the Registrar of this Honourable Court. She did not appreciate that it was only a communication of order of the Supreme Court relevant for the exercise of her authority. However, her displeasure in this behalf betrays her bias in favour of Respondent No.2 and against implementation of the orders of the Supreme Court.
(q) That the bias and prejudice of the Respondent No.1 is also glaring from the exaggeration of her position and constitutional role as Speaker of the National Assembly. While showing due respect to the office of the Speaker of the National Assembly, it is submitted that speakership does not make her an adjudicator over the judgments of the Supreme Court. She is bound to remain within confines of the powers vested in her office by the Constitution. She cannot transgress such powers or authority.
(r) That any precedence in matters of protocol to any office holder under the Constitution would not entitle her to sit in judgment over the decisions of the Supreme Court. Hence, she has clearly misconceived of the power and role of the Speaker under the Constitution.
(s) That the Supreme court in Judgement dated 26.4.2012 has clearly held that the Respondent No.2 has flouted, disregarded and disobeyed the direction of this Honourable court and has acted in substantial detriment to the administration of justice and brought this Honourable court and judiciary of this country into ridicule. After such clear finding, how can any one conclude that no question of disqualification of Respondent No.2 has arisen under Clause (2) of Article 63 of the Constitution. Her limited role was to only see if any question of disqualification had arisen and the abovementioned findings could not possibly lead to the conclusion that no such question has arisen.
(t) That the Respondent No.1 also ignored the fact that the Supreme Court has clearly mentioned the consequence of disqualification under Article 63(1)(g) of the Constitution and treated it as mitigated factors by reducing the sentence against the Respondent No.2. The Respondent No.2 cannot thus take a position that the question of disqualification has not arisen after availing himself of the benefit of the order itself by the reduction of sentence.
(u) that the reference made to different orders and judgments in the decision of the Respondent No.1 are irrelevant and baseless.
(v) That the Petitioner craves to urge additional grounds in support of this petition at the time of hearing of this petition.
IT IS WHEREFORE MOST RESPECTFULLY PRAYED that this Honourable Court may graciously be pleased to declare the decision of Respondent No.1 dated 24.05.2012 as unconstitutional, void and in violation of fundamental rights of access to justice and independence of judiciary.
It is further prayed that this Honourable Court may graciously be pleased to direct Respondent No.4 to decide the question of disqualification of Respondent No.2 as having been deemed to have been referred to it under Article 63(2) and (3).
Any other relief this Honourable Court deems appropriate in the facts and circumstances of the instant constitution petition may kindly be granted.
Drawn by Filed by
Muhammad Waqar Rana
Advocate Supreme Court of Pakistan Advocate On Record
Senior Advocate Supreme Court of Pakistan,