PLJ 2013 SC 482
[Original Jurisdiction]
[Original Jurisdiction]
Present:
Iftikhar Muhammad Chaudhry, HCJ, Gulzar Ahmed & Sh. Azmat Saeed, JJ.
Dr. MUHAMMAD
TAHIR-UL-QADRI--Petitioner
versus
FEDERATION OF
PAKISTAN through Secretary M/O Law, Islamabad
Constitution
Petition No. 5 of 2013, decided on 13.2.2013.
(Challenging the
Constitution of Election Commission of Pakistan
Locus Standi--
----Enforcement
of fundamental rights--Existence of public importance--A citizen who invoked
jurisdiction of the Court was bound to satisfy the Court that he had come
before the Court with bona fide intention and therefore, he had locus standi to
seek enforcement of fundamental rights. [P.
489] A
Constitution of Pakistan
----Art.
63(1)(c)--Right to be elected as member parliament--Dual
nationality--Citizenship of Canada--Validity--After acquiring citizenship of
another country and pleading his loyality to that country, he has to lose some
of his rights including right to be elected as member of parliament, even
though he does not lose his Pakistani citizenship as well as other rights
granted under Constitution and law, as consequence of dual nationality--A
person who had acquired dual citizenship can claim his individual rights such
as right to acquire property or private rights and can sue for enforcement of
right. [Pp. 490 & 491] B & C
Constitution of Pakistan
----Art.
184(3)--Discretionary jurisdiction--Mala fides--Bona fides--It is settled
principle of law that mala fides are to be pleaded and proven by persons so
pleading whereas bona fides are always to be apparent or would be shown from
record--It is settled that superior Courts exercise discretionary jurisdiction
u/Art. 184(3) of Constitution where petitioner succeeds in establishing his
bona fides from record. [P. 492] D &
E
Administration
of Justice--
----It is now a
settled position in system of administration of justice that relief is not to
be denied to litigants on technical consideration--Where Courts owing duty to
preserve and protect constitution, consider the object of case and relief
sought from Court as under Art. 184(3) by one person alone as against public at
large. [P. 496] F
Constitution of Pakistan
----Arts. 218,
63(1)(c) & 184(3)--Electoral Rolls Act, (XXI of 1974), S. 6--Constitutional
Petition u/Art. 184(3) of Constitution challenging constitution if election
commission of Pakistan--Person holding dual citizenship--Overseas
Pakistani--Right to vote in general election--Scope of--Appointment of Chief
Election Commission as well as Members of ECP had not been followed--Neither
infraction of any of fundamental right was listed in petition nor enforcement
was sought in prayer clause and even during course of arguments, petitioner had
failed to identify any of fundamental rights, which might be
violated--Petitioner had not showed as to which of Fundamental Right had been
violated--Burden of proof was upon the petitioner to demonstrate as to which of
his fundamental rights had been infringed upon but he had failed to point out
an infraction of any of fundamental rights--Question of extending right of vote
to citizens of Pakistan living abroad some of whom might be holding dual
citizenship, that as a voter, petitioner can exercise his right of vote like
overseas Pakistan whose name had been incorporated in Electoral Rolls--Such
right had been recognized under constitution--Election Commission of Pakistan
was directed to ensure that all overseas citizens who were eligible for
registration of their votes in accordance with Electoral Rolls Act and Rules
framed thereunder must be registered before elections. [Pp. 503 & 506] G, H, I & J
Petitioner in
person.
Mr. Irfan Qadir,
A.G. for Pakistan
Mr. Muhammad
Munir Peracha, Sr. ASC, Mr. Mehmood A. Sheikh, AOR and Mr. Abdul Rehman, Addl.
D.G. Legal for Election Commission.
Mr. Muhammad
Latif Qureshi, Joint Secy. National Assembly for Parliamentary Committee.
Dates of
hearing: 11 to 13.2.2013
Judgment
Iftikhar
Muhammad Chaudhry, CJ.--It is the will of the people of Pakistan to establish
an order wherein the State shall exercise its powers and authority through the
chosen representatives of the people and wherein the principle of democracy,
freedom, equality, tolerance and social justice, as enunciated by the Islam,
shall be fully observed and to achieve the principle and provisions set out in
the objective resolution, they have to elect their representatives i.e. Members
of the National Assembly and Provincial Assemblies and Senate as well as Local
Government, through the process/procedure of elections to be organized and
conducted honestly, justly, fairly and in accordance with law, by the Election
Commission, constituted under the Constitution of Islamic Republic of Pakistan.
2. This petition has been filed under Article
184(3) of the Constitution by the petitioner Dr. Muhammad Tahir-ul-Qadri in his
personal capacity as a citizen of Pakistan
(i) The appointment of Chief Election
Commissioner and four Hon'ble Members of the Election Commission of Pakistan is
not in accordance with the provisions of Articles 213 and 218 of the
Constitution. Hence, all these appointments are void ab-initio.
(ii) That a direction to Respondent No. 1 may
graciously be issued on an urgent basis to appoint the Chief Election
Commissioner and all other Members of the Election Commission of Pakistan
immediately in accordance with the procedure laid down in Articles 213(2)(a)
and 218(2)(a) and (b) of the Constitution of Islamic Republic of Pakistan,
1973, so that the forthcoming election may not be delayed on any pretext and is
conducted, fairly, justly and in accordance with law.
3. The Election Commission of Pakistan (ECP) has to conduct/ organize
elections enabling the people of Pakistan
4. A Perusal of the concise statement dated 14.2.2013
filed vide CMA No. 756/2013 has revealed that he also holds citizenship of
Canada, which he has acquired under Section 24 of the Canadian Citizenship Act,
1985 as a consequence whereof, he has shown allegiance on oath to the following
effect:--
"From this
day forward, I pledge my loyalty and allegiance to Canada
5. Under Section 14(1) of the Pakistan
Citizenship Act, 1951, if any person is a citizen of Pakistan under the
provisions of that Act, and is at the same time a citizen or national of any
other country, he shall, unless he makes a declaration according to the laws of
that other country renouncing his status as citizen or national thereof, cease
to be a citizen of Pakistan. However, under sub-section (3), the said provision
shall not apply to a person who being, or having at any time been, a citizen of
Pakistan, is also the citizen of the United Kingdom and Colonies or of such
other country as the Federal Government may, by notification in the official
Gazette, specify in this behalf.
However, for a
person with dual citizenship, there is an express prohibition that disqualifies
him to be elected as Member of Parliament under Article 63(l)(c) of the
Constitution, which reads as under:--
"63.
Disqualifications for membership of Majlis-e-Shoora (Parliament).--(1) A person
shall be disqualified from being elected or chosen as, and from being, a member
of the Majlis-e-Shoora (Parliament), if:--
(a) .....................
(b) .....................
(c) he ceases to be a citizen of Pakistan
Reliance in this
behalf is also made on the case of Syed Mehmood Akhtar Naqvi v. Federation of
Pakistan (PLD 2012 SC 1089).
6. Petitioner contended that being a citizen of Pakistan
7. Learned Attorney General stated as follows:--
(a) If the case law cited by the petitioner
is taken to be correct, he has locus standi in this case.
(b) The judgment of 31.03.2009 reported as
Sindh High Court Bar Association v. Federation (PLD 2009 SC 879), relied upon
by the petitioner is unconstitutional, especially when Supreme Court Bar
Association has passed a resolution for revisiting it.
(c) Any judgment of the Supreme Court is not
important but the provisions of the Constitution are important and as he has
been appointed under Article 100 of the Constitution, therefore, as a Constitutional
functionary it is his first and foremost duty to follow the Constitution and
any decision of the Court, which runs contrary to the Constitution, he cannot
subscribe to that.
(d) Articles 189 and 190 of the Constitution
will only apply to those judgments, which are within the confines of Article
175(2) of the Constitution.
(e) As far as the bona fide of the
petitioner is concerned, it is something which is not to be proven but bona
fides are to be presumed, unless and until mala fides are attributed. And this
is exactly what the law of evidence says, that question of good conduct and
character is irrelevant unless evidence is given of a bad character in which it
becomes relevant. In the instant case the question of bona fides would pale
into insignificance and would not be relevant unless we have evidence that all
this has been brought with mala fide intention and Courts have held in a number
of rulings that mala fides are not only to be stated but they are to be proven.
(f) The petitioner has laid information
before this Court and the Court can always take notice of that information
irrespective of any bona fides and if the Court feels that there is a law point
involved which touches upon Fundamental Rights and is a matter of public
importance which has been brought to the notice of the Court then surely the
Court on the basis of such information laid before it can assume jurisdiction,
which it has done in a number of cases.
(g) There is no mala fide of the petitioner
apparent from the record. However, this Court has to examine the question of
laches that at this point of time the petitioner has approached this Court. Why
has the petitioner not approached this Court at an appropriate time?
8. Mr. Muhammad Munir Peracha, learned counsel
who appeared on behalf of the ECP stated that;--
(a) The petition is barred by laches.
Therefore, at this stage, discretion may not be exercised by granting relief
claimed by the petitioner.
(b) Petitioner has no locus standi to file
this petition as neither a request has been made to enforce any Fundamental
Right involving question of public importance nor any bona fide has been shown
to invoke the jurisdiction of this Court under Article 184(3) of the
Constitution.
9. It is the contention of Mr. Muhammad Munir
Piracha, learned ASC that petitioner demanded in his first public address,
inter alia, that appointment of the Chief Election Commissioner and the Members
be set aside for being contrary to constitutional provisions. Subsequently, he
arranged Long March and a sitting in Islamabad from 14th to 17th January, 2013
wherein he had put forward the same demand, among others. Having failed to
achieve his object, he has initiated instant petition with the prayer noted
above. Therefore, mere filing of petition under Article 184(3) of the
Constitution itself would not provide him locus standi to seek relief as he has
not put forward any question of public importance and the enforcement of
fundamental rights. Hence, discretion may not be exercised in his favour.
At one stage, the
learned counsel also stated that the petitioner in his first public address
after coming to Pakistan
" " (save the State, not politics) and to achieve this object, stated that the postponement of elections for a period of two years would be in the interests of the State.
" " (save the State, not politics) and to achieve this object, stated that the postponement of elections for a period of two years would be in the interests of the State.
The petitioner
controverted the stand taken by the learned counsel and presented a transcript
of his speech, forcefully stating that he had never demanded postponement of
elections for a period of two years.
10. The factual aspect of the case as has been
alleged by the parties has to be resolved either in view of the pleadings and
facts which have been brought on record or by taking into consideration certain
constitutional provisions relating to the completion of five year term of
Parliament in the month of March, 2013 in terms of Article 55 of the
Constitution.
11. It is to be noted that under Article 184(3)
of the Constitution, the appointment of Chief Election Commissioner and the
members of the ECP have been challenged. Therefore, it would be advantageous to
reproduce the text of the provision here:--
184. Original Jurisdiction of Supreme Court. (1)
..........
(2) .........
(3) Without prejudice to the provisions of
Article 199, the Supreme Court shall, if it considers that a question of public
importance with reference to the enforcement of any of the Fundamental Rights
conferred by Chapter I of Part II is involved have the power to make an order
of the nature mentioned in the said Article.
A perusal of
above noted sub-Article (3) of Article 184 manifests that there are two
conditions, on the availability of which, original jurisdiction of this Court
is to be exercised i.e. question of public importance and enforcement of any of
the Fundamental Rights, subject to discretion of the Court as the words
"If it considers" have been prefaced.
12. As per the case law which has developed so
far, the jurisdiction of the Court can be invoked individually and collectively
by citizen(s) who succeed(s) in establishing his/their locus standi to achieve
the purposes envisaged by the Constitution. In the instant case, the petitioner
has relied upon various judgments of this Court to determine his locus standi
but he has lost sight of the fact that jurisdiction has to be exercised subject
to consideration by the Court that a question of public importance with
reference to enforcement of any of the Fundamental Rights has been raised.
Essentially, consideration of the Court remains on the existence of public
importance, which is to be interpreted depending upon the particular facts
raised before it on a case to case basis. A citizen who invokes the
jurisdiction of the Court is bound to satisfy the Court that he has come before
the Court with bona fide intentions and therefore, he has locus standi to seek
enforcement of the Fundamental Rights in question. In the cases relied upon by
him, this Court exercised jurisdiction where it was established that violation
of any one or more Fundamental Rights were involved. It would be appropriate to
note that in the case of Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC
416) this Court held that after all, the law is not a closed shop and even in
the adversarial procedure, it is permissible for the next of kin or friends to
move the Court on behalf of a minor or a person under disability, or a person
under detention or in restraint. Why not then a person, if he were to act bona
fide to activate a Court for the enforcement of the Fundamental Rights of a
group or a class of persons who are unable to seek relief from the Court for
several reasons. Article 184(3) does not say as to what proceedings should be
followed. Whatever its nature may be must be judged in light of the purpose,
that is, the enforcement of any of the Fundamental Rights. The said Article
provides abundant scope for the enforcement of Fundamental Rights of an
individual or a group or a class of persons in the event of their infraction.
However, it would be for the Court to generally lay down the contours in order
to regulate the proceedings initiated by a group or class actions from case to
case. Having regard to the connotation of the words "public
importance", it will be for the Supreme Court to consider each case to
determine whether an element of "public importance" is involved in
the enforcement of Fundamental Rights irrespective of the violation of an
individual's rights or the infractions against the rights of a group or a class
of persons. The Court granted relief on the ground that the petitioner had
succeeded to show the violation of his Fundamental Rights provided under
Article 17 of the Constitution. In the case of Muhammad Saifullah Khan v.
Federation of Pakistan (1989 SCMR 22), this Court declined to accept the plea
of the petitioner with regard to unconstitutionality of certain amendments made
in the Delimitation of Constituencies Ordinance, 1988 and Representation of
People Ordinance, 1988 and for declaring the constitution of Election
Commission to be illegal, on the ground that he invoked the jurisdiction of the
Court under Article 184(3) of the Constitution without alleging any
infringement of his Fundamental Rights for the enforcement of which he sought
to invoke the jurisdiction of the Court. In the case of Shehla Zia v. WAPDA
(PLD 1994 SC 693), though the proceedings were initiated on a letter but the
relief was granted for the reasons that violation of Article 9 of the
Constitution had been proven. In the case of Yasmin Khan v. Election Commission
of Pakistan (1994 SCMR 113), the petitioners who were permanent residents of Pakistan
13. An analysis of the above referred case law
shows that in all these cases, the Court was inclined to grant relief where the
petitioner(s) therein succeeded in establishing the violation of any of the
Fundamental Rights conferred by Chapter 1 Part II of the Constitution. In the
instant case, neither violation of any of the Fundamental Rights has been
listed in the petition nor established during the course of arguments.
14. It is to be noted that the petitioner has
acquired the citizenship of Canada and has taken an oath inter alia to pledge
his loyalty and allegiance to Canada, and as such this disqualifies him from
contesting elections to Parliament, in view of the bar contained in Article
63(l)(c) of the Constitution which has been elaborately discussed in the case
of Syed Mehmood Akhtar Naqvi v. Federation of Pakistan (PLD 2012 SC 1089). It
is to be noted that after acquiring the citizenship of another country and
pledging his loyalty to that country, he has to lose some of
his rights including
the right to
be elected as
Member of Parliament, even though
he does not lose his Pakistani citizenship as well as other rights granted
under the Constitution and the law, as a consequence of his dual nationality.
15. Similarly, a person who has acquired dual
citizenship can claim his individual rights such as the right to acquire
property or other private rights and can also sue for the enforcement of such
rights. This Court has been entertaining such petitions in the past. Reference
may be made to Constitutional Petition No. 15/2007 (Amjad Malik v. Federation
of Pakistan). The said petition was clubbed with identical petitions, wherein
the action of former President of Pakistan against one of us (Justice Iftikhar
Muhammad Chaudhry, Chief Justice of Pakistan) was challenged. [Chief Justice of
Pakistan Iftikhar Muhammad
Chaudhry v. President of Pakistan England
& Wales 149 Dark Street
"The leave
to move a petition may graciously be granted as it involves a question of
public importance as well as interpretation of Article of which the whole
nation is concerned, and a larger is formed as Respondents have shown blatant
disregard to the rule of law, and norms of Constitution and petitioner believes
and disputes there is no term as such as `non functional' Chief Justice of
Pakistan as it is only the Honourable Office of the Chief Justice which upholds
the supremacy of the Constitution, the custodian and guardian of justice &
rule of law and the sooner larger bench settles the actual interpretation of
Article 209 and relevant proposition the better it is to avoid any further
media trial of the sitting Chief Justice as well as future media trial of the
sitting Chief Justice as well as future Chief Justice(s) of Pakistan.
Petitioner fears
that filing a reference under Art.209 may be used as ploy with mala fide
intentions to remove a pro active Chief Justice in future if the law is not
settled now and may create serius legal questions for the independence of
judiciary and safety of the work and well being of the judges of the Superior
Court.
It Is also
prayed that direction may be Issued to Respondent to remove all restraints on
the Chief Justice, allow him and his family move freely, access to Chief
Justice to Court and restore his protocol and privileges befitting to his
office until reference and or the question of law is settled by this superior
Court and may be permitted to perform his functions in Court as Chief Justice
of Pakistan."
16. It is abundantly clear that for a person to
activise the jurisdiction of this Court as a public interest litigant, for the
enforcement of the Fundamental Rights of a group or a class of persons, he must
show on the given facts that he is acting bona fide. However, it would be for
this Court to decide, on the given facts whether he is acting bona fide or not
and whether the petition is suffering from laches or not.
17. It is a settled principle of law that mala
fides are to be pleaded and proven by the persons so pleading whereas bona
fides are always to be apparent or should be shown from the record. It is also
settled that the superior Courts exercise discretionary jurisdiction conferred
under Articles 184(3) of the Constitution where the petitioner succeeds in
establishing his bona fides from the record. Reference may be made to the cases
of Shahid Hussain Qureshi v. Manager SBFC (2001 YLR 454). Similarly, in the
case of Waqar Haider Butt v. Judge Family Court (2009 SCMR 1243) this Court has
held that constitutional jurisdiction is always discretionary in nature and he
who seeks equity must come with clean hands.
18. It may also be noted that the expression
`bona fide', for the purpose of invoking jurisdiction of this Court under
Article 184(3) of the Constitution, has to be applied in contradistinction to
the expression `mala fide'. Because mala fides, if alleged against any person,
is to be proven by bringing admissible evidence on record, as it has been held
in the case of Government of West Pakistan v. Begum Agha Abdul Karim Shorish
Kashmiri (PLD 1969 SC 14), whereas to prove bona fide, burden is placed upon
the person who has approached the Court and persuaded it to exercise jurisdiction,
particularly with reference to the circumstances of the instant case. The
expression, `bona fide' has been defined as per dictionary meanings as
follows:--
Corpus Juris
Secundum page 387:
Latin literally,
"by or in good faith". It has been defined as meaning acting honestly
without purpose to defraud; good faith, as distinguished from bad fait; honest;
without fraud or unfair dealing; also, in a derived sense, real.
Chambers 20th
Century Dictionary:
`In good faith;
genuine'. The word `genuine' means `natural: not spurious: pure: sincere'.
Law Dictionary,
Mosley and Whitley:
Bona fide means
`good faith', without fraud or deceit.
Stroud's
Judicial Dictionary:
`Bona fide'. (1)
The equivalent of this phrase is `honestly' .......
Concise Law
Dictionary of Osborn:
`Bona fide'--In
good faith, honestly, without fraud, collusion or participation in
wrong-doing."
While dealing
with the question of "bona fides" of a petitioner, especially in the
case of a person approaching the Court in the name of Public Interest
Litigation, the Indian Supreme Court in the case of Ashok Kumar Pandey v. State
of West Bengal (AIR 2004 SC 280) has held as under:--
"Public,
interest litigation is a weapon which has to be used with great care and
circumspection and the judiciary has to be extremely careful to see that behind
the beautiful veil of public interest an ugly private malice, vested interest
and/or publicity seeking is not lurking. It is to be used as an effective
weapon in the armory of law for delivering social justice to the citizens. The
attractive brand name of public interest litigation should not be used for
suspicious products of mischief. It should be aimed at redressal of genuine
public wrong or public injury and not publicity oriented or founded on personal
vendetta. As indicated above. Court must be careful to see that a body of
persons or member of public, who approaches the Court is acting bona fide and
not for personal gain or private motive or political motivation or other
oblique consideration. The Court must not allow its process to be abused for
oblique considerations. Some persons with vested interest indulge in the
pastime of meddling with judicial process either by force of habit or from
improper motives. Often they are actuated by a desire to win notoriety or cheap
popularity. The petitions of such busy bodies deserve to be thrown out by
rejection at the threshold, and in appropriate cases with exemplary
costs." [Emphasis supplied]
Relying upon the
said case, this Court in the case of Dr. Akhtar Hassan Khan v. Federation of
Pakistan (2012 SCMR 455) has held that while holding that the petitions are
maintainable, the Court has to guard against frivolous petitions as it is a
matter of common observation that in the garb of Public Interest Litigation, matters
are brought before the Court which are neither of public importance nor
relatable to enforcement of a Fundamental Right or public duty.
19. Applying the above stated principle to the
facts of instant case, it is to be observed that this country, after having
remained in the clouds of extra-constitutional eras from time to time, as has
been discussed in the case of Sindh High Court Bar Association (supra) finally
succeeded in establishing a democratic order in the country through the process
of elections when General Elections were held on 18.2.2008. Thereafter, all the
unconstitutional actions of the then Military Regime were declared non est by
this Court in the above cited judgment, including the appointment of Judges,
who violated the restraint order passed by a seven-member Bench of this Court
on 3.11.2007 against the Military Regime and appointment of Judges who were
appointed on the recommendations of an unconstitutionally appointed Chief
Justice, including the incumbent Attorney General of Pakistan. It is heartening
to note that all unconstitutional actions of the Military Regime were also not
confirmed by the Parliament, as it is manifest from the 18th Constitutional
Amendment. Since then, the democratic system has continued for a period of 5 years,
as the Parliament is about to complete its term on or before 18.03.2013, and
approximately 80 million registered voters are ready to elect their
representatives within the coming few months. For that reason, at this critical
stage, no one amongst the 180 to 200 million citizens or registered voters has
come forward to question the appointment of the Chief Election Commissioner and
Members of the ECP, who were appointed vide notifications dated 16.7.2012 and
16.6.2011 respectively. At the same time, no objection or reservation has been
admittedly shown to such appointments by the 342 incumbent Members of the
National Assembly and 104 Members of the Senate as well as 65, 124, 371 and 168
Members of the Provincial Assemblies of Balochistan, KPK, Punjab
and Sindh respectively. Nor have the prospective candidates for the forthcoming
Elections raised a question of public importance for enforcement of any of
their Fundamental Rights, either in this Court or before any of the Provincial
High Courts, for the simple reason that the entire nation is fully ready for
the forthcoming elections. Further, the ECP has also geared up the process of
Elections and statistical pre-poll preparations have almost been completed by
taking all necessary steps in accordance with the Constitution and law, as well
as the recommendations made by this Court in the cases of Imran Khan v.
Election Commission of Pakistan (2012 SCMR 448) and Workers' Party Pakistan v.
Federation of Pakistan (PLD 2012 SC 681). In such a situation, the appointments
to the ECP (both the Chief Election Commissioner and Members of the Commission)
have been challenged by a person, who though can exercise his own right to vote
but is disqualified from contesting Elections in view of the bar contained in
Article 63(1)(c) of the Constitution, for the relief which has been noted
hereinabove. It may not be out of context to note that in the speech delivered
by the petitioner on 23.12.2012 at Lahore
20. It is to be noted that the petitioner, to
achieve his declared agenda, admittedly led a Long March from Lahore
to Islamabad
21. As the petitioner lacks bona fides,
therefore, at one stage he stated that he has instituted instant petition in
the nature of quo warranto. We enquired from him as to whether he had any
objection(s) to the eligibility or competency of the Chief Election
Commissioner and the Members of the Election Commission? He replied that he had
no such objection against them. Learned Attorney General for Pakistan
22. It is now a settled position in our system of
administration of justice that relief is not to be denied to the litigants on
technical consideration. However, in peculiar circumstances where the Courts,
owing a duty to preserve and protect the Constitution, consider that on the one
hand, the object of a case and the relief sought from the Court as under
Article 184(3) by one person alone as against public at large. The question of
maintainability of proceedings would arise that of suffering from an
infirmity/hurdle to effect the result of such proceedings and cannot be left
unnoticed by the Court. A constitutional bar of limitation is not applicable to
the proceedings under Article 199 or Article 184 of the Constitution, however,
insistence is placed on initiating proceedings promptly and within a reasonable
time to avoid the question of laches.
23. The doctrine of laches has been discussed in
detail by this Court in the case of State Bank of Pakistan
"30.
.......... Laches is a doctrine whereunder a party which may have a right,
which was otherwise enforceable, loses such right to the extent of its
enforcement if it is found by the Court of a law that its case is hit by the
doctrine of laches/limitation. Right remains with the party but it cannot
enforce it. The limitation is examined by the Limitation Act or by special laws
which have inbuilt provisions for seeking relief against any grievance within
the time specified under the law and if party aggrieved do not approach the
appropriate forum within the stipulated period/time, the grievance though
remains but it cannot be redressed because if on one hand there was a right
with a party which he could have enforced against the other but because of
principle of limitation/laches, same right then vests/accrues in favour of the
opposite party.
It is settled
principle of our jurisprudence as well that delay defeats equity and that
equity aids the vigilant and not the indolent. In the case of Jawad Mir
Muhammadi v. Haroon Mirza (PLD 2007 SC 472), a full Bench of this Court has
held that lathes per se is not a bar to the constitutional jurisdiction and
question of delay in filing would have to be examined with reference to the
facts of each case; question of delay/lathes in filing constitutional petition
has to be given serious consideration and unless a satisfactory and plausible
explanation is forthcoming for delay in filing, constitutional petition, the
same cannot be overlooked or ignored subject to facts and circumstances of each
case.
In this very
case reference has also been made to words of Lord Camden L.C. from the
judgment of Smith v. Clay (1767) 3 Bro. C.C. 639n at 640n wherein it has been
observed that "a Court of equity has always refused its aid to stale
demands, where a party has slept upon his right and acquiesced for a great
length of time; nothing can call forth this Court into activity, but
conscience, good faith, and reasonable diligence, where these are wanting the
Court is passive, and does nothing". Cited judgment also refers to a book
titled Snell's Equity by John Meghee 13th Edition, wherein at page 35 it has
been observed that "the doctrine of laches in Courts of equity is not an
arbitrary or a technical doctrine; where it would be practically unjust to give
a remedy, either because the party has, by his conduct, done that which might
fairly be regarded as equivalent to a waiver of it, or where by his conduct and
neglect he has, though perhaps not waiving that remedy, yet put the other party
in a situation in which it would not be reasonable to place him if the remedy
were afterwards to be asserted in either of these lapse of time and delay are
most material".
In Member
(S&R)/Chief Settlement Commissioner v. Ashfaque Ali (PLD 2003 SC 132), this
Court has held that "writ jurisdiction is undoubtedly discretionary and
extraordinary which may not be invoked by a party who demonstrates a style of
slackness and laxity on his part: law is well-settled that a party guilty of
gross negligence and laches is not entitled to the equitable relief."
In S.A. Jameel
v. Secretary to the Govt. of the Punjab (2005 SCMR 126), this Court while addressing
the question of laches has observed that "there is marked distinction
between delay in filing of a legal proceedings within the period specified
under the provisions of Limitation Act, 1908 and undue time consumed by a party
in filing of Constitutional petition, for which no statutory period is
prescribed under the law; in the former case, delay of each day is to be
explained by furnishing sufficient cause for enlargement of time and
condonation of delay within the contemplation of Section 5 of the Limitation
Act whereas in the later case lapse of time or the question of lathes has to be
examined on equitable principles for the reason that the exercise of
Constitutional jurisdiction is always discretionary with the Court and the
relief so granted is always in the nature of equitable relief in case if the
Court finds that the party invoking writ jurisdiction of the High Court is
guilty of contumacious lethargy, inaction, laxity or gross negligence in the
prosecution or a cause for enforcement of a right, the Court would be justified
in nonsuiting such person on the premise of laches" (emphasis provided).
Hon'ble Mr. Justice Rana Bhagwandas (as he then was), also relied upon the
following para of Pakistan Post Office v. Settlement Commissioner (1987 SCMR
1119):--
"There is
absolutely no justification to equate laches with statutory bar of limitation.
While the former operates as a bar in equity, the latter operates as a legal
bar to the grant of remedy. Thus, in the former, all the dictates of justice and
equity and balance of legitimate rights are to be weighed, in the latter,
subject to statutory relaxations in this behalf nothing is left to the
discretion of the Court. It is a harsh law. Thus, passage of time per se brings
the statute of limitation in operation, but the bar of laches does not deny the
grant of right or slice the remedy unless the grant of relief in addition to
being delayed, must also perpetuate injustice to another party. It is also in
this very context that the condonation of delay under Section 5 of the
Limitation Act will be on different harder considerations than those in a case
of laches. For, example, while it is essential to explain and condone the delay
of each day vis-a-vis statutory limitation, there is no such strict requirement
in cases of laches."
The doctrine of
laches was also under discussion and dealt with by Privy Council in the
judgment reported as John Objobo Agbeyegbe, v. Festus Makene Ikomi (PLD 1953 PC
19) where the Lord Oakseyquoted the following para from Erlanger v. New
Sombrero Phosphate Company (1878 LR 3 AC at page 1279):--
"In Lindsay
Petroleum Company v. Hurd (LR 5 PC 239) it is Said:
`The doctrine of
laches in Courts of Equity is not an arbitrary or a technical doctrine. Where
it would be practically unjust to give a remedy, either because the party has,
by his conduct done that which might fairly be regarded as equivalent to a
waiver of it, or where, by his conduct and neglect he has, though perhaps not
waiving that remedy, yet put the other party in a situation in which it would
not be reasonable to place him if the remedy were afterwards to be asserted, in
either of these cases lapse of time and delay are most material. But in every
case if an argument against relief, which otherwise not amounting to a bar in
any statute of limitations, the validity of that defence must be tried upon
principles substantially equitable Two circumstances always important in such
cases are the length of the delay and the nature of the acts done during the
interval, which might affect either party and cause a balance of justice or
injustice in taking the one course or the other, so far as relates to the
remedy."
In the instant
case doctrine of laches will have double force against the respondent-employees
because in the first instance they could not prove or show the infringement of
any right as held by us in the T preceding paras hereinabove and secondly
because they are guilty of laches in approaching the legal forum in for
redressal of their grievance, if at all they had a legal and genuine
grievance."
In the case of
Muhammad Azhar Siddiqui v. Federation of Pakistan (PLD 2012 SC 774), this Court
has held that the Supreme Court retains the discretion to deny petitioners who
approach the Court after undue delay or with unclean hands and the question as
to whether a particular case involves the element of public importance is to be
determined by the Court with reference to the facts and circumstances of each
case. In the case of Dr. Akhtar Hussain Khan v. Federation of Pakistan (2012
SCMR 455) this Court after relying upon the judgment of the Indian Supreme
Court in the case of Air India Ltd. v. Cochin International Airport Ltd.
[(2002) 2 SCC 617] has held that in the event of some irregularity in the
decision making process, the Court must exercise its discretionary power of
judicial review with circumspection and only in furtherance of public interest
and not merely for making out a legal point. It should always keep the larger
public interest in mind to interfere or not to interfere.
24. As pointed out by Mr. Muhammad Munir Paracha,
learned counsel for the Election Commission of Pakistan, the petitioner came to
Pakistan
25. Laches are vital in the instant case, as
noted hereinabove, the Election Commission is functioning from the day of the
notification dated 6.2.2011 appointing the members, followed by notification
dated 16.7.2012 of the appointment of Chief Election Commissioner. After having
become fully functional, the Commission is headed towards holding elections and
no one except the petitioner alone, as a voter, has questioned their appointments
through the instant petition on 07.02.2012 which was taken up for hearing on
11.02.2013. Therefore, arguments of the Attorney General and Mr. Muhammad Munir
Paracha, learned ASC in this behalf, in view of the discussion above is
accordingly accepted that the petition suffers from laches. Thus, it is held
that the petition is not maintainable on this score as well.
26. As far as the other pre-requisite under
Article 184(3) of the Constitution is concerned, namely, an element of `public
importance' enabling this Court to exercise such jurisdiction, the petitioner,
in addition to proving his bona fides in approaching this Court and seeking
relief as has been prayed for by instituting instant petition, has to show that
a question of public importance is involved in the matter and that therefore,
Fundamental Rights have to be enforced. The expression `public importance' was
interpreted in the cases of Manzoor Elahi v. Federation of Pakistan (PLD 1975
SC 66), Shahida Zaheer Abbasi v. President of Pakistan (PLD 1996 SC 632), Syed
Zulfiqar Mehdi v. Pakistan International Corporation (1998 SCMR 793), wherefrom
following principles have been determined:--
(a) The term `public' is invariably employed
in contradistinction to the terms private or individual and connotes, as an
adjective, something pertaining to or belonging to the people; relating to a
nation, State or community. In other words, it refers to something which is to
be shared or participated in or enjoyed by the public at large, and is not
limited or restricted to any particular class of the community.
(b) The phrase `public purpose', `whatever
else it may meet must include a purpose, that is an object or aim, in which the
general interest of the community as opposed to the particular interest of
individuals is directly and vitally concerned'.
(c) It is quite clear that whether a
particular case involved the element of `public importance' is a question which
is first to be determined by this Court with reference to the facts and
circumstances of each case.
(d) The public importance should be viewed
with reference to freedom and liberties guaranteed under Constitution, their
protection and invasion of these Rights in a manner which raises a serious
question regarding their enforcement irrespective of the fact whether such
infraction of right, freedom or liberty is alleged by an individual or a group
of individuals.
(e) The issues arising in a case cannot be
considered as a question of public importance if the decision of the issues
affects only the Rights of an individual or a group of individuals. The issue,
in order to assume the character of public importance, must be such that its
decision affects the rights and liberties of people at large.
(f) The objective "public"
necessarily implies a thing belonging to people at large, the nation, the State
or a community as a whole.
(g) If a controversy is raised in which only
a particular group of people is interested and the body of the people as a
whole or the entire community has no interest, it cannot be treated as a case
of public importance.
(h) In all systems of law which cherish
individual freedom and liberty and which provide Constitutional safeguards and
guarantees in this behalf, any invasion of such freedom in circumstances which
raise serious questions regarding the effectiveness and availability of those
safeguards, must be regarded as a matter of great public importance."
This Court
discussed in the case of Al-Jehad Trust v. Lahore High Court (2011 SCMR 1688),
all the cases wherein the scope of Article 184(3) with reference to the
jurisdiction of this Court was highlighted, and held as under:--
11. We have also examined cases titled Zafar Ali
Shah v. Pervez Musharraf (PLD 2000 SC 869), Qazi Hussain Ahmad v. Pervez
Musharraf, Chief Executive (PLD 2002 SC 853), Sabir Shah v. Shad Muhammad Khan
(PLD 1995 SC 66), Wattan Party v. Federation of Pakistan (PLD 2006 SC 697),
Wasim Sajjad v. Federation of Pakistan (PLD 2001 SC 233), Muhammad Nawaz Sharif
v. President of Pakistan (PLD 1993 SC 473), Amanullah Khan v. Chairman Medical
Research Council (1995 SCMR 202), Zulfiqar Mehdi v. Pakistan International
Airlines Corporation (1998 SCMR 793), All Pakistan Newspapers Society v.
Federation of Pakistan (PLD 2004 SC 600), State Life Insurance Employees
Federation v. Federal Government of Pakistan (1994 SCMR 1341), Muhammad Shahbaz
Sharif v. Federation of Pakistan (PLD 2004 SC 583), Muhammad Siddique v.
Government of Pakistan (PLD 2005 Supreme Court 1), Benazir Bhutto v. Federation
of Pakistan (PLD 1988 SC 416), Javed Jabbar and 14 others v. Federation of
Pakistan and others (PLD 2003 Supreme Court 955). "The ratio of the
judgment referred hereinabove is that unless the matter is of public importance
relating to the enforcement of any of the Fundamental Rights conferred by Part
II, Chapter 1 of the Constitution (Articles 8 to 28), the jurisdiction of the
Court under Article 184(3) of the Constitution, cannot be invoked. The mere
importance of a matter, without enforcement of any fundamental right or
reference to a fundamental right without any public importance, will not
attract the jurisdiction of this Court under Article 184(3) of the
Constitution. Consequently, we having considered the matter in the light of the
law laid down by this Court in the judgments referred hereinabove, find that
these petitions under Article 184(3) of the Constitution are not maintainable
and we are not persuaded to agree with the assertion that in view of the nature
of dispute and importance of the matter, the Court may ignore the objection and
decide these petitions' on merits. This may be pointed out that in the light of
constitutional mandate as contemplated in Article 184(3) of the Constitution
this Court may not entertain a direct petition under Article 184(3) in a matter
not involving the enforcement of any of Fundamental Rights mentioned therein.
The question raised in the present petitions do not as such relate to the
Fundamental Rights conferred by Part II, Chapter 1 of the Constitution and most
of these questions even otherwise are speculative and presumptive in nature at
this stage. There is clear distinction between Article 199 and Article 184(3)
of the Constitution and this Court has repeatedly held that in the matters
which do not involve enforcement of the Fundamental Rights of the public at
large as envisaged in Article 184 (3) of the Constitution, a direct petition in
original jurisdiction is not entertainable." (Jamat-e-Islami v. Federation
of Pakistan
27. As the facts surrounding the instant petition
are rather peculiar and merit a complete appreciation of the various factors
involved, it is to be noted at the cost of repetition that the petitioner is a
renowned, well reputed and respected religious scholar, jurist and professor of
law. However, as per his own declaration in his petition and concise statement
submitted before this Court, he is a citizen of Canada Canada Pakistan Pakistan
28. From the perusal of the petition it is clear
that the petitioner primarily has emphasized that the procedure provided in
Articles 213 and 218 of the Constitution with regard to appointment of the
Chief Election Commissioner as well as the Members of ECP has not been followed
in letter and spirit. However, neither infraction of any of the Fundamental
Rights has been listed in the petition nor enforcement of the same has been
sought in the prayer clause; and even during the course of arguments the
petitioner has failed to identify any of the Fundamental Rights, which may have
been violated. Despite insistence of the Court, the petitioner did not show as
to which of the Fundamental Rights had been violated. Thus, one of the
fundamental requirements of Article 184(3) of the Constitution, namely, the
violation of any of the Fundamental Rights, enabling this Court to exercise
jurisdiction conferred by said Article, is apparently missing in the instant
case.
29. At this stage, it would be appropriate to
consider the scope of Article 184(3) of the Constitution as deliberated upon by
this Court in various pronouncements. In the cases of Benazir Bhutto v.
Federation of Pakistan (PLD 1988 SC 416), it has been held as under:--
"Article
184(3) of the Constitution empowers Supreme Court to enforce the Fundamental
Rights where the question of public importance arises in relation thereto. And
if looked at from this angle it is hardly of any importance whether the
Executive has passed a prejudicial order or not when the infraction of the
Fundamental Rights takes place by the operation of the law itself. In this
context what would be relevant would be the language of the provisions of the
impugned Act itself. It will then not be a question of the Court merely
granting a declaration as to the validity or invalidity of law in the abstract.
An enactment may immediately on its coming into force take away or abridge the
Fundamental Rights of a person by its very terms and without any further overt
act being done. In such a case the infringement of the Fundamental Right is
complete co instant the passing of the enactment and, therefore, there can be
no reason why the person so prejudicially affected by the law should not be
entitled immediately to avail himself of the constitutional remedy. To say that
a person, whose fundamental Right has been infringed by the mere operation of
an enactment, is not entitled to invoke the jurisdiction of Supreme Court for
the enforcement of his right, will be to deny him the benefit of a salutary
constitutional remedy which is itself his Fundamental Right. The infractions
alleged cannot be regarded as seeking a declaration in the air or asking the
Court to decide, in abstract, and for that matter hypothetical or contingent
questions."
Similarly, this
Court in the case of Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993
SC 473) has held as under:--
Article 184(3)
of the Constitution of Pakistan pertains to original jurisdiction of the
Supreme Court and its object is to ensure the enforcement of Fundamental Rights
referred to therein. This provision is an edifice of democratic way of life and
manifestation of responsibility casts on this Court as a protector and guardian
of the Constitution. The jurisdiction conferred by it is fairly wide and the
Court can make an order of the nature envisaged by Article 199, in a case where
a question of public importance, with reference to enforcement of any
fundamental right conferred by Chapter 1 of Part II of the Constitution is
involved. Article 184(3) is remedial in character and is conditioned by three
prerequisites, namely:--
(i) There is a question of public
importance.
(ii) Such a question involves the enforcement
of a fundamental right, and
(iii) The fundamental right sought to be
enforced is conferred by Chapter 1, Part II of the Constitution."
In case of
Jamat-e-Islami v. Federation of Pakistan (PLD 2008 Supreme Court 30) following
observations have been made:--
31. There are two essential conditions for
invoking the jurisdiction of Supreme Court of Pakistan under Article 184(3) of
the Constitution. The first condition is that subject matter of the petition
under this Article must be of public importance and second condition is that it
must relate to the enforcement of any of the Fundamental Rights conferred by
Part II, Chapter 1 of the Constitution. We therefore, in the light of law laid
down by this Court on the subject, would like to examine the question whether
the present petitions qualify the above test to entertain the same under
Article 184(3) of the Constitution."
In the case of
Bank of Punjab v. Han's Steel Industries (PLD 2010 SC 1109) relief was granted
to the petitioner on the ground that the right of property granted under
Articles 9 and 24 of the Constitution were involved, as due to gravest
financial scams in the history of Pakistan, the bank stood cheated of an
enormous amount of around 11 billions Rupees. In the case of Shahid Orakzai v. Pakistan
30. The upshot of the above discussion is that
the burden of proof was upon the petitioner to demonstrate as to which of his
fundamental rights had been infringed upon but he failed to point out an
infraction of any of his fundamental rights. Thus, judgments relied upon by the
petitioner are not attracted to the facts of the instant case.
31. Before parting with the judgment, it is to be
noted with regard to the question of extending the right of vote to citizens of
Pakistan living abroad, some of whom may be holding dual citizenship, that as a
voter, the petitioner can also exercise his right of vote like other overseas
Pakistanis whose names have been incorporated in the Electoral Rolls. This
right has been recognized under the Constitution and has also been held by this
Court in the case of Yasmin Akhtar v. Election Commission of Pakistan (1994
SCMR 113), which was finally disposed of vide judgment dated 18.12.1993 in
Constitutional Petition No. 26/1993. Reference in this regard may also be made
to the case Ch. Nasir Iqbal v. Federation of Pakistan (Constitutional Petition
No. 39/2011 etc.), wherein vide order dated 14.02.2013, the ECP was directed to
ensure that all the overseas citizens of Pakistan, who are qualified/eligible
for the registration of their votes in accordance with the Electoral Rolls Act,
1974 and the Rules framed thereunder must be registered before the forthcoming
elections.
32. Hereinabove are the reasons of our short
order of even date, which reads as under:--
"For
reasons to be recorded later it is held that petitioner, Dr. Muhammad
Tahir-ul-Qadri has failed to make out a case for exercising the discretionary
jurisdiction by this Court under Article 184(3) of the Constitution of the
Islamic Republic of Pakistan, for the facts that violation of any of the
Fundamental Rights under Chapter 1 of Part II of the Constitution has neither
been listed in the petition nor established during course of arguments, despite
of insistence by the Bench to do so. The petitioner has also failed to prove
his bona fides in view of the facts, which have been noticed at the hearing of
the case, to invoke the jurisdiction of this Court coupled with the fact that
under the peculiar circumstances he has no locus standi to claim relief as it
has been prayed for in the petition, inter alia, for the reasons that being a
holder of dual citizenship, he is not qualified (disqualified) to contest the
election to the Parliament in view of the constitutional bar under Article
63(1)(c) of the Constitution, which has
been interpreted by this Court in the case of Syed Mehmood
Akhtar Naqvi v. Federation of Pakistan (PLD 2012 SC 1089).
2. However, it is loudly and clearly observed
that as a voter like other overseas Pakistanis, whose names have been incorporated
in the Electoral Rolls, he can exercise his right of vote as this right is
recognized under the constitution and has also been held by this Court in the
case of Yasmin Khan v. Election Commission of Pakistan (1994 SCMR 113), which
was finally disposed of vide judgment in Constitutional Petition 26/1993 dated
18.12.1993. Thus, the petition is dismissed.
3. Before parting with the short order, it is
essential to note that at the time of concluding his arguments on the points
noted hereinabove, he started making uncalled for aspersions against the member
of the Bench, which are tantamount prima facie to undermine its authority
calling for action against him for Contempt of Court under Article 204(3) of
the Constitution read with Section 3 of the Contempt of Court Ordinance, 2003.
However we, while exercising restraint, have decided not to proceed against him
following the principle that such jurisdiction has to be exercised sparingly on
case to case basis."
(R.A.) Petition dismissed
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