Reference Against MQM: Fear Of “Becoming Controversial” – Lahore High Court’s Verdict
On 10 March, 2016, the honourable Lahore High Court, on the basis of factual controversy, dismissed an intra-court appeal, filed under section 3 and 4 of Law Reforms Ordinance in which the main prayer sought was to direct the federal government to file a reference against a political party MQM (Muttahida Qaumi Movement) before the honourable Supreme Court of Pakistan in light of Article 17 of the Constitution of Pakistan 1973 read with section 3(4) and 15 of the Political Parties Order 2002. Appearing on behalf of the petitioner, Mr Ali Javed Dogar Advocate, one of the founding members of Young Lawyers Forum Wing, I argued before the Divisional Bench that keeping into consideration the Articles 5 (loyalty to the state), 9 (security of life) and 17 (right to form association) of the Constitution, and the relevant provisions of the Political Parties Order 2002, if a political party is working against the national interest and its nefarious designs are likely to become prejudicial to the state sovereignty, then it is the responsibility of the state to take actions against the anti-state activities of such political group or association.
It was further argued by me that since 1989, serious allegations have been charged against the MQM leadership to have connections as well as to have been financed by the Indian intelligence agency RAW and also alleged to have been involved in spreading violence and terror in Karachi, which is the largest city and financial hub of Pakistan. It was also brought into the notice of the honourable court that from time to time, a number of operations have also been conducted by the army during the period of 1992-1993, on the directions of Chief of Army Staff General Asif Nawaz Janjua and General Waheed Kakar respectively. Since the cause of action has been recurring, keeping into consideration the BBC documentary of foreign journalist Bennet Johnson as well as the recent statements of arrested workers of MQM against the party’s chief during the recent operation of the Rangers, and finally the statements of former Mayor of Karachi Mustafa Kamal, manifest that the state is not fulfilling its statutory obligations and instead of initiating investigation and accumulating the evidence against the MQM’s links with RAW and its involvement in money laundering activities presented before the honourable Supreme Court, it has failed to enforce the fundamental rights of common citizens and henceforth state security is at risk.
The honourable judges questioned that if facts are disputed, how can the constitutional petition be maintainable? It was vociferously argued by me that in the light of PLD 2011 SC 997, in case of public interest petition, the superior courts can delve into disputed questions of facts as the nature of proceedings if public interest petition is inquisitorial rather adversarial. I further argued that a similar proposition was before the Supreme Court of Pakistan in the aforementioned case, PLD 2011 SC 997 in which Watan Party sought judicial review of the honourable Supreme Court under Article 184(3) against the monopolization of the city of Karachi by the MQM and its militant wing.
The question before the honourable Lahore High Court was whether the high courts can exercise similar powers under Article 199 which the Supreme Court exercises under 184(3) of the Constitution? I gave clarifications that the Supreme Court in the same aforementioned judgment PLD 2011 SC 997 has confirmed the view that the powers exercised by the Supreme Court under Article 184(3) are similar powers which the high courts exercise under Article 199 of the Constitution. Hence there is no bar in exercising the powers of judicial review and giving directions to the federal government to investigate and place the entire direct and corroboratory evidence before the honourable Supreme Court of Pakistan, if necessary, by filing a reference.
The court further questioned the credibility of evidence attached with the petition. The evidence attached with the petition mainly included newspaper reports and I argued in light of PLD 2009 SC 879, Sindh High Court Bar Association versus Federation of Pakistan, which had ultimately decided that if direct evidence is not available then newspaper reports are sufficient and admissible as evidence.
The court also pointed out that the petitioner could have also sent the application to the Interior Ministry and on this query I humbly submitted that there is no provision in the Political Parties Order 2002 which obligates a common citizen to first apply to the Ministry of Interior before knocking the door of superior courts under Article 199 if any political party is alleged to have been disloyal to the ideology of the country (in violation of Article 5 of the Constitution) and involved in anti-state activities. The superior court’s judgments 2012 SCMR 455 and PLD 2014 Sindh pg 1, have also decided that in case the question is of public importance, then notwithstanding the fact that there is an alternative remedy, the superior courts can still exercise their judicial review powers.
It was disappointing that instead of giving directions to the federal government to take cognizance of the recent events including the statements of former Karachi’s Mayor, the honourable judges refrained from addressing the public-wrong. In 2007, we the young lawyers protested on the streets and fought for the restoration of deposed judges and the independence of judiciary against the rule of dictator. It is shocking that even today the honourable judges of the superior courts show reluctance in issuing directions to the federal government in public interest litigation matters, lest they become controversial. Albeit, the fear of a judge of ‘becoming controversial’ undermines the concept of ‘independence of judiciary’. All I can say is that we all would have seen mutilated bodies lying on the road but nothing is worse than a mutilated soul.
The writer appeared as counsel in this case on behalf of the petitioner.
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