A full bench of the Lahore High Court has asked President Asif Ali Zardari to cease the use of the premises of presidency for political meetings of his party.
The bench headed by Chief Justice Ijaz Ahmad Chaudhry with Justice Chaudhry Iftikhar Hussain, Justice Umar Ata Bandial and Justice Ijazul Ahsan while disposing of the petition challenging the holding of dual office by the President observed that the use of presidency for political activity was inconsistent with the sanctity, dignity, neutrality and independence of the presidency.
"Therefore, it is expected that the President of Pakistan would cease the use of the premises of presidency for political meetings of his party," the bench remarked. Pakistan Lawyers Forum (PLF) through A.K. Dogar had filed a petition in 2009, seeking a court direction for federation of Pakistan to act in accordance with law and to ask President Zardari to surrender his office of co-chairperson of Pakistan People's Party (PPP).
The bench concluded its judgement on the basis of law laid down by the Supreme Court of Pakistan in the case of Mian Muhammad Nawaz Sharif vs President of Pakistan and others (PLD 1993 S.C 473) which ruled 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.
Referring to this judgement of the apex court, the LHC bench observed: "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." The bench has not completely relied on the SC judgement in Mian Nawaz Sharif case, and observed that the manifestation of the principle laid down in the said 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 also not a case for immediate prohibitory action," the bench held. "In the circumstances of the present case and on the basis of the law declared by SC in Mian Nawaz Sharif 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," the bench remarked and expected that the president would abide by the foregoing declaration of law to disassociate himself from political office at the earliest possible. With these rulings and observations the bench disposed of the matter.
Assessing the relief that may be granted in the instant case, the bench observed that this is clearly not a case for disqualification of the president or for a prohibitory order as president is engaging himself in any activity that is not barred under law.
But, this is a case where the president is exposing himself and his lofty office to likely controversy that can erode the public trust and respect necessary for such office to represent the unity of the republic. And 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 his (president's) with his political party.
"These action, therefore, do not enjoy immunity from the judicial process and call for judicial intervention to enforce the constitution," the bench rules. The nature of intervention in the present case is, however, guided by a number of considerations but 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, the bench says.
The bench has also noted that the objection now being adjudicated by the court has been raised for the first time for judicial consideration in the present factual matrix. Deciding the matter, the bench restrained itself from issuing any prohibitory direction to President of Pakistan keeping in view the immunity enjoyed by the president under article 248 of the Constitution.
The bench in the judgement has mentioned that the advocates who assisted the court on the matter did not address this point but the court was aware that the high office of the president enjoys immunity from certain legal proceedings. The bench, however, admitted that the material of newspapers' cuttings and other record placed before the court proved that meetings of the party in government of which the president is a co-chairperson are regularly held in the presidency. And it is longstanding principle that newspaper reports about the events that are not rebutted are treated as reliable evidence, the bench observed and also referred a SC judgement in case of Islamic Republic of Pakistan vs Abdul Wali Khan, MNA (PLD 1976 S.C 57).
The bench remarked that the participation of the president of Pakistan in the said 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.
It says the fact that President of Pakistan in his capacity as 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, such action involved 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. To this point, the bench observed: "Leaving aside any constitutional limitation imposed on the person of the president as the protagonist of such activity, the conduct of such activity within the presidency breaches the sanctity, dignity, neutrality and lofty status of a highly revered state property."
The bench on March 10, 2011 had concluded ex-parte proceedings in the case and reserved its verdict. A legal panel of the federation had boycotted the court proceedings on June 21, 2010 when the bench turned down its plea to hear an objection petition before proceeding with the main writ petition which was already admitted for regular hearing and partly heard.
The panel comprised of Talib H. Rizvi, Saiful Malook, S.M Masood and Abid Saqi, then deputy attorney general. However, no one represented President Asif Ali Zardari before the court. After the federation's lawyers boycotted court proceedings, several notices were served upon the respondents but none had appeared in the proceedings.
In the judgement, the bench says, "Such withdrawal of the learned counsel for the respondents from proceedings was as surprising as it is strange." The bench further says that the prescribed law officer of the federation, attorney general or law officers in his charge, also desisted their bounden obligation to assist the court notwithstanding notice served on him.
When no one appeared on behalf of the respondents despite giving ample opportunity on three dates of hearing, the bench decided to proceed against ex-parte on October 7, 2010. However, the bench appointed three senior advocates of the Supreme Court Abdul Hafeez Pirzada, S.M Zafar and Abid Hassan Manto as amicus curiae to assist the court on the legal points raised by the petitioner.