P L D 2012 Supreme Court 292 (PLP)
WATAN PARTY and others — Petitioners Versus FEDERATION OF PAKISTAN and others — Respondents
| Citation | P L D 2012 Supreme Court 292 (PLP) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan, Tassaduq Hussain Jillani, Jawwad S. Khawaja, Tariq Parvez, Mian Saqib Nisar, Ejaz Afzal Khan, Ijaz Ahmd Chaudhry and Muhammad Athar Saeed, JJ |
| Parties | WATAN PARTY and others — Petitioners Versus FEDERATION OF PAKISTAN and others — Respondents |
| Primary Law | (s) Constitution of Pakistan, (r) Constitution of Pakistan, (u) Constitution of Pakistan |
Q1: What are the key laws and sections cited in P L D 2012 Supreme Court 292 (PLP)?
This judgment primarily cites: (s) Constitution of Pakistan, (r) Constitution of Pakistan, (u) Constitution of Pakistan, (p) Mala fides, (c) Civil service, (e) Public importance, (q) Constitution of Pakistan, (g) 'Inquisitorial proceedings', (h) Constitution of Pakistan, (l) Constitution of Pakistan, (o) Constitution of Pakistan, (f) Constitution of Pakistan, (b) Constitution of Pakistan, (j) Constitution of Pakistan, (m) Constitution of Pakistan, (i) Constitution of Pakistan, (t) Constitution of Pakistan, (v) Interpretation of Constitution, (x) Constitution of Pakistan, (a) Constitution of Pakistan, (w) Constitution of Pakistan, (n) Constitution of Pakistan, (d) Constitution of Pakistan, (k) Constitution of Pakistan as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 2012 Supreme Court 292 (PLP)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan, Tassaduq Hussain Jillani, Jawwad S. Khawaja, Tariq Parvez, Mian Saqib Nisar, Ejaz Afzal Khan, Ijaz Ahmd Chaudhry and Muhammad Athar Saeed, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 2012 Supreme Court 292 (PLP) (WATAN PARTY and others — Petitioners Versus FEDERATION OF PAKISTAN and others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- ----Arts. 9, 14, 19, 187 & 184(3)---Supreme Court Rules, 1980, O.XXXII, Rr.1 & 2 read with O.XXXVI---Civil Procedure Code (V of 1908), Preamble---Constitutional petitions invoking original jurisdiction of Supreme Court, questioning therein the contents of a Memo. published in a newspaper "Financial Times" London, written by respondent on stated allegations and that question of public importance involving petitioners' fundamental rights under the Constitution had been made out as according to the version of respondent, Memo. was prepared/drafted for the purpose of delivering the same to the Chairman of U.S. Joint Chief of Staff through former U.S. National Security Advisor---Maintainability---Held, petitioners had succeeded in establishing that the issues involved were justiciable and question of public importance with regard to enforcement of fundamental rights, prima facie, under Articles 9, 14 and 19A of the Constitution, had been made out, thus, the petitions under Article 184(3) of the Constitution were maintainable---To delineate measures with a view to ensure enforcement of the said fundamental rights a probe was called for to ascertain the origin, authenticity and purpose of creating/drafting of Memo. for delivering it to Chairman of the U.S. Joint Chief of Staff through former U.S. National Security Advisor thus, in exercise of powers conferred upon the Supreme Court under Article 187 of the Constitution, Order XXXII, Rules 1 and 2 read with Order XXXVI of the Supreme Court Rules, 1980 coupled with the principles of Civil Procedure Code, a Commission was appointed, as the due process of law was the entitlement of all the stakeholders, therefore, to ensure probe into the matter in a transparent manner the Commission shall be comprising of (i) Mr. Justice Qazi Faez Isa, Chief Justice of Balochistan High Court (Chairman); Mr. Justice Iqbal Hameed-ur-Rehman, Chief Justice, Islamabad High Court (Member) and (iii) Mr. Justice Mushir Alam, Chief Justice, High Court of Sindh (Member) and Raja Jawwad Abbas Hassan, District & Sessions Judge, Islamabad, was appointed as Secretary to the Commission---Commission shall hold its meetings in the building of Islamabad High Court and shall be exercising all the powers of Judicial Officers for the purpose of carrying out the object mentioned hereinabove and it shall be free to avail services of advocates, experts of forensic science and cyber crimes---All the Federal Secretaries, including Interior Secretary, Secretary Cabinet, Secretary Foreign Affairs; Chief Secretaries of all the Provinces; DG, FIA; Inspector Generals of Police of all the Provinces and Ambassadors of Pakistan in USA and UK, shall provide necessary assistance to the Commission---Government of Pakistan, through Secretary Cabinet Division shall provide logistic support to the Commission, subject to its demands through the Secretary of the Commission---Commission shall be authorized to collect evidence within and outside Pakistan according to prevailing laws on the subject and shall provide full opportunity of hearing to all the parties---Commission was required to complete the task within a period of four weeks after receipt hereof---Reply submitted before the Court by the respondent, inter alia, comprised of certain documents including exchange of e-mails and other communications using the "BlackBerry Messaging Service" commonly known as "BBM" between respondent and the then Ambassador of Pakistan in U.S., who were in constant touch either through BBM, e-mails or voice calling w.e.f. 9th to 12th May, 2011---Said communications formed the most important piece of evidence regarding purported contacts between the two for the purposes of drafting the alleged Memo.---Respondent also claimed that he had electronic/telephonic interactions with the then Ambassador in U.S. on October, 28 and November, 1 2011, therefore, in the interest of justice, it was appropriate to get the confirmation about the veracity and authenticity of said communications from the original company based in Canada being the sole and exclusive custodian of such information---Supreme Court directed the Attorney General for Pakistan, to contact the said Company through Secretary, Ministry of Foreign Affairs for getting confirmation about the authenticity of the said electronic communications exchanged between the two---Such confirmation may be obtained at the earliest and in order to save and protect the forensic evidence and to scrutinize the same it should be produced before the Commission---Forensic evidence was likely to be collected from the company based in Canada, therefore, the High Commission of Pakistan in Canada was also directed to cooperate and assist the Commission as well.
- Words and phrases Vol 18, Great Public Importance; Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Maqbool Ahmad v. Pakistan Agricultural 2006 SCMR 470; Mian Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583; Shahida Zaheer Abbasi v. President of Pakistan PLD 1996 SC 632; State of Jammu and Kashmir v. Bakshi Ghulam Mohammad AIR 1967 SC 122; Sohail Butt v. Deputy Inspector General of Police 2011 SCMR 698; Munir Hussain Bhatti Advocate v. Federation of Pakistan and others PLD 2011 SC 407; Keliner v. District Court [256 P.2d 887 (1953) 127 Colo 320]; Queen on the Application of Compton v. Wiltshire Primary Care Trust [(2008) EWCA <mailto:E@WCA> Civ 749] and Jamat-e-Islami v. Federation of Pakistan PLD 2009 SC 549 ref.
- Barrister Zafarullah Khan, Advocate Supreme Court in person, Tariq Asad, Advocate Supreme Court in person, Rashid A. Rizvi, Senior Advocate Supreme Court, Senator Muhammad Ishaq Dar and Khawaja Muhammad Asif, MNA in person, Muhammad Rafiq Rajwana, Advocate Supreme Court, Attique Shah, Advocate Supreme Court, Dr. M. Salahuddin Mengal, Advocate Supreme Court, Sardar Asmatullah Khan, Advocate Supreme Court, Syed Ghous Ali Shah, Advocate Supreme Court, Dr. M. Shamim Rana, Advocate Supreme Court, Naseer Ahmad Bhutta, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.
- Ms. Asma Jahangir, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record assisted by Messrs Idrees Ashraf and Asad Jamal, Advocates for Hussain Haqqani.
- (c) The Commission shall hold its meetings in the building of Islamabad High Court. The Commission shall be exercising all the powers of Judicial Officers for the purpose of carrying out the object mentioned hereinabove and it shall be free to avail services of advocates, experts of forensic science and cyber crimes. All the Federal Secretaries, including Interior Secretary, Secretary Cabinet, Secretary Foreign Affairs; Chief Secretaries of all the provinces; DG, FIA; Inspector Generals of Police of all the provinces and Ambassadors of Pakistan in USA and UK, shall provide necessary assistance to the Commission.
- 15. Mr. Attique Shah Advocate Supreme Court and Mr. Muhammad Rafiq Rajwana, Advocate Supreme Court learned counsel in Petition No. 81 of 2011 framed following two questions:--
- 29. This Court in Manzoor Elahi's case (supra) has observed that in order to acquire public importance the case must obviously raise a question, which is of interest to, or affects the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities or the public or the community at large, even though the individual, who is the subject matter of the case, may be of no particular consequence. In the case of Munir Hussain Bhatti advocate v. Federation of Pakistan and others (PLD 2011 SC 407) it has been held that a wealth of jurisprudence is available on this subject. The issue, therefore, which has to be addressed while deciding the respondent's preliminary objection is whether or not these petitions raise issues of public importance. Furthermore, in making this determination, the Court is not to be swayed by expressions of public sentiment nor is it to conduct an opinion poll to determine if the public has any interest in an issue being agitated before the Court under Article 184(3) of the Constitution. Instead, a whole range of factors need to be kept in mind, which have, over the years, been expounded in numerous precedents of this Court. It is important to keep these precedents in view because, as noted in an earlier judgment, it is through the use of precedent that the contours of the law are constantly defined. In the case of Muhammad Shahbaz Sharif (PLD 2004 SC 583) it has been held that in order to acquire public importance the case must obviously raise a question, which is of interest to, or affects the whole body of people or an entire community. What is essential is that the question so raised must relate to the interest of whole body of the people or an entire community. To put it in other words, the case must be such, which raises a question affecting the legal rights or liabilities of the public or the community at large, irrespective of the fact that who raised such question. In the case of Kellner v. District Court [256 P.2d 887 (1953) 127 Colo 320], the Supreme Court of Colorado has laid down that as to the question of what is of great public importance, sole determination in all cases, according to the peculiar features of each, is within the province of the court. In some cases there may be an adequate remedy at law, but not speedy. In some instances, and we believe applicable here it is apparent on the face of the pleadings and record before us. The Supreme Court of Judicature, UK in the case of the Queen on the Application of Compton v. Wiltshire Primary Care Trust [(2008) EWCA Civ 749] has held that the first governing principle requires the judge to evaluate the importance of the issues raised and to make a judgment as to whether they are of general public importance. In the case of Jamat-e-Islami v. Federation of Pakistan (PLD 2009 SC 549), the dual office of General Pervez Musharraf as Chief Executive and the Chief of Army Staff was challenged. Although the petitions were dismissed being not maintainable, however, in the majority view, it was held that the condition precedent for following the precedent must be question of public importance. The learned Judge, who authored the majority judgment, accepted the principle that jurisdiction under Article 184(3) of the Constitution cannot be exercised unless the matter is of public importance involving the fundamental rights conferred by Part-II Chapter 1 of the Constitution. In the case of Muhammad Yasin v. Federation of Pakistan (Civil Petition No.42 of 2011) it has been held as under:--
- The adversarial system (or adversary system) is a legal system where two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case, whereas, the inquisitorial system has a judge (or a group of judges who work together) whose task is to investigate the case.
- 42. Learned counsel for respondent No.4 emphasized that there must be a serious question involving enforcement of the fundamental rights. Prima facie, what could be more threat to the life of citizens who are loyal to this country and the Constitution where on the basis of activities, which resulted in originating Memo dated 10th May, 2011. Its existence, as discussed above, has been established. Inasmuch as, the Federation itself, is of the opinion that the matter requires to be probed into and the initiative apparently has been taken in view of the letter dated 16th November, 2011, copy of which has been produced by learned counsel for respondent No.4, in which besides mentioning other facts he himself has offered for a probe into the issue of the Memo, therefore, in such like cases when cogent, concurrent and undisputed facts have come on record about the existence of the Memo dated 10th May, 2011 and contents whereof have threatened the independence, sovereignty and security of the country, the loyal citizens are, prima facie, justified to raise a voice about the denial of their fundamental rights under Articles 9, 14 and 19A of the Constitution, which are tagged with the question of public importance, thus, call for their enforcement. Learned counsel, however, stated that for enforcement of the "Fundamental rights to have access to information, under Article 19A of the Constitution", alternate remedy is available under the Freedom of Information Ordinance, 2002 (Promulgated on 26th October, 2002). On having gone through the scheme of the Ordinance, we are not inclined to agree with her, as in the instant case, enforcement of fundamental rights in terms of Article 184(3) of the Constitution has been prayed for.
- As in the instant case in view of the facts noted hereinabove, contained in the letter dated 16th November, 2011 addressed by the former Ambassador Husain Haqqani to the President of Pakistan, the letter dated 28th November, 2011 and the request made in Constitution Petitions Nos.77 and 78 of 2011 as well as by other petitioners during course of the arguments including the learned Attorney General as well as the counsel for respondent No.4 Mr. Husain Haqqani all are one on the point that probe should be conducted in the matter. This fact itself indicates the importance of the issue, otherwise respondent No.4 and the Prime Minister in the letter dated 28th November, 2011 would have not referred the matter for probe by the Parliamentary Committee on National Security.
- 61. Learned counsel also suggested for probe through a Commission to be constituted under the Pakistan Commission of Inquiry Act, 1956. It is to be noted that the Federal Government is empowered to constitute an Inquiry Commission but the same has not been done because the matter has been referred to Parliamentary Committee, reference of which has been made hereinabove. She also pointed out that the petitioner who is in service of Pakistan can be subjected to disciplinary proceedings as he has tendered resignation pursuant to the directions of the Prime Minister, therefore, it would be for the department to initiate any proceeding if permissible under the law, which so far have not been commenced, as such, this argument has no substance to be considered at this stage. Therefore, the points so raised need no elaborate discussion. In these circumstances, for the foregoing reasons, we are of the considered opinion that issue of probe to ascertain the origin, authenticity and purpose of creating/drafting of the Memo is justiciable.
- 71. Learned counsel for respondent No.4 contended that the petitions submitted on behalf of the petitioners are benami petitions as the pleas taken by the respondents Chief of Army Staff and DG, ISI seem to be the case of the petitioners and the petitions have been filed with a mala fide intention. We failed to appreciate the argument of the learned counsel except observing that the defence functionaries under the Constitution are bound to discharge their functions strictly in accordance with the Constitution. The affidavits/counter affidavits filed by both the high-ups of the Pakistan Army the events, which took place after 10th October, 2011, details whereof have been mentioned, and such events have not been denied by the Federation through learned Attorney General. As certain facts have been placed before the Court, it does not mean that they are supporters of the petitioners. In addition to it, ascertainment of origin, authenticity and the purpose of the drafting/creating the Memo is a matter of public importance and prima facie calls for enforcement of their Fundamental Rights provided under Articles 9, 14 and 19A of the Constitution, hence, whosoever has laid information before the Court, calls for due consideration as the object is to see what he is speaking, and not who is speaking the same. In this behalf we cannot do better than to reproduce a para from the judgment in Civil Petition No.42 of 2011 composed by Mr. Justice Jawwad S. Khawaja:--
- 72. Learned counsel for respondent No.4 vehemently contended that instant petitions lack bona fides. She relied upon news clippings filed by her with C.M.A. No. 5440 of 2011 as under:
Headnotes / Summary
Arts. 9, 14, 19, 187 & 184(3)
Supreme Court Rules, 1980, O.XXXII, Rr.1 & 2 read with O.XXXVI
Civil Procedure Code (V of 1908), Preamble
Constitutional petitions invoking original jurisdiction of Supreme Court, questioning therein the contents of a Memo. published in a newspaper "Financial Times" London, written by respondent on stated allegations and that question of public importance involving petitioners' fundamental rights under the Constitution had been made out as according to the version of respondent, Memo. was prepared/drafted for the purpose of delivering the same to the Chairman of U.S. Joint Chief of Staff through former U.S. National Security Advisor
Held, petitioners had succeeded in establishing that the issues involved were justiciable and question of public importance with regard to enforcement of fundamental rights, prima facie, under Articles 9, 14 and 19A of the Constitution, had been made out, thus, the petitions under Article 184(3) of the Constitution were maintainable
To delineate measures with a view to ensure enforcement of the said fundamental rights a probe was called for to ascertain the origin, authenticity and purpose of creating/drafting of Memo. for delivering it to Chairman of the U.S. Joint Chief of Staff through former U.S. National Security Advisor thus, in exercise of powers conferred upon the Supreme Court under Article 187 of the Constitution, Order XXXII, Rules 1 and 2 read with Order XXXVI of the Supreme Court Rules, 1980 coupled with the principles of Civil Procedure Code, a Commission was appointed, as the due process of law was the entitlement of all the stakeholders, therefore, to ensure probe into the matter in a transparent manner the Commission shall be comprising of (i) Mr. Justice Qazi Faez Isa, Chief Justice of Balochistan High Court (Chairman); Mr. Justice Iqbal Hameed-ur-Rehman, Chief Justice, Islamabad High Court (Member) and (iii) Mr. Justice Mushir Alam, Chief Justice, High Court of Sindh (Member) and Raja Jawwad Abbas Hassan, District & Sessions Judge, Islamabad, was appointed as Secretary to the Commission
Commission shall hold its meetings in the building of Islamabad High Court and shall be exercising all the powers of Judicial Officers for the purpose of carrying out the object mentioned hereinabove and it shall be free to avail services of advocates, experts of forensic science and cyber crimes
All the Federal Secretaries, including Interior Secretary, Secretary Cabinet, Secretary Foreign Affairs; Chief Secretaries of all the Provinces; DG, FIA; Inspector Generals of Police of all the Provinces and Ambassadors of Pakistan in USA and UK, shall provide necessary assistance to the Commission
Government of Pakistan, through Secretary Cabinet Division shall provide logistic support to the Commission, subject to its demands through the Secretary of the Commission
Commission shall be authorized to collect evidence within and outside Pakistan according to prevailing laws on the subject and shall provide full opportunity of hearing to all the parties
Commission was required to complete the task within a period of four weeks after receipt hereof
Reply submitted before the Court by the respondent, inter alia, comprised of certain documents including exchange of e-mails and other communications using the "BlackBerry Messaging Service" commonly known as "BBM" between respondent and the then Ambassador of Pakistan in U.S., who were in constant touch either through BBM, e-mails or voice calling w.e.f. 9th to 12th May, 2011
Said communications formed the most important piece of evidence regarding purported contacts between the two for the purposes of drafting the alleged Memo.
Respondent also claimed that he had electronic/telephonic interactions with the then Ambassador in U.S. on October, 28 and November, 1 2011, therefore, in the interest of justice, it was appropriate to get the confirmation about the veracity and authenticity of said communications from the original company based in Canada being the sole and exclusive custodian of such information
Supreme Court directed the Attorney General for Pakistan, to contact the said Company through Secretary, Ministry of Foreign Affairs for getting confirmation about the authenticity of the said electronic communications exchanged between the two
Such confirmation may be obtained at the earliest and in order to save and protect the forensic evidence and to scrutinize the same it should be produced before the Commission
Forensic evidence was likely to be collected from the company based in Canada, therefore, the High Commission of Pakistan in Canada was also directed to cooperate and assist the Commission as well.
Art. 184(3)
Exercise of jurisdiction under Art.184(3) of the Constitution by Supreme Court
Held, Supreme Court should not enter into disputed questions of fact involving appreciation of voluminous evidence, however, to decide the question brought before the Court relating to public importance and enforcement of fundamental rights, there was no prohibition to consider facts, which did not require consideration of voluminous evidence
Settled practice of the Supreme Court was that proceedings are not undertaken for academic purposes but on the basis of admitted or proven facts to resolve the controversy.
Ambassador of Pakistan, including the one who is on contract appointment, is deemed to be holding the post in connection with the affairs of the Federation and is to be governed by the Rules applicable to the general body of civil servants.
Art. 184(3)
Exercise of jurisdiction by Supreme Court under Art.184(3) of the Constitution
Scope
Public importance is one of the components to attract the said jurisdiction of Supreme Court coupled with the facts that three elements i.e. question of public importance; question of enforcement of fundamental rights and fundamental rights sought to be enforced as conferred by Chap. I, Part II of the Constitution are required to be satisfied
Scope.
Art. 184(3)
Exercise of jurisdiction under Art.184(3) of the Constitution by the Supreme Court
Art. 184(3)
Interpretation of Art.184(3)
Principles/Judicial consensus
While interpreting Art.184(3) of the Constitution, the interpretative approach should not be ceremonious observance of the rules or usages of the interpretation but regard should be had to the object and purpose for which the Article is enacted i.e. the interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution including the Objectives Resolution (Article 2-A), the fundamental rights and the Directive Principles of State Policy so as to achieve democracy, tolerance, equity and social justice according to Islam.
Arts. 2A , 9 & 14
Scope
Words of Objectives Resolution comprehensively define the stature of an independent Pakistan where the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world
Article 2A, undoubtedly has overwhelming nexus with the fundamental rights of Citizens of Pakistan (people) specifically guaranteed under Arts.9 & 14 of Chap. 1, Part II of the Constitution.
Art. 9
"Life" as used in Art.9 of the Constitution
Scope
Word "Life" used in Art.9 of the Constitution is very significant as it covers all facets of human existence
Word "life" has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death
Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally
Arts. 9 & 2A
"Life with dignity"
Citizen who is constitutionally under the obligation to be loyal to State, the Constitution and the law, whatever his status may be, also remains under the command of the Constitution to have an honoured place amongst the nations of the world
Attempt/act of threatening to the dignity of the people, collectively or individually, concerning the independence, sovereignty and security of their country, prima facie, raises a serious question tagged/linked with their fundamental rights.
Art. 184(3)
Constitutional petitions under Art.184(3) of the Constitution
No one specifically amongst the respondents, had been sought by the petitioners, to be held liable to take brunt of the civil liability or criminal culpability, except praying to probe into the matter and to identify those who were responsible in issuance of the derogatory Memo. though they had alleged threat to life, security, dignity as well as denial of fundamental right to have complete information about the issue wherein allegedly independence, sovereignty and security of the country was likely to be compromised
Seeking no relief against any of the respondents suggested that in accordance with the provisions of Art.184(3) of the Constitution, Supreme Court was empowered to make a declaratory order to enforce any of the fundamental rights conferred by Chap. 1, Part II of the Constitution
Such kind of litigation fell within the category of 'inquisitorial proceedings' and not 'adversarial', which was generally undertaken by the litigants against each other for determination of their respective rights in the common law countries.
Art. 4
Scope
Right of due process, inter alia, envisages the right to have a fair and proper trial and right to have impartial court or tribunal
"Right of access to justice" and "due process" are referable to the basic judicial function, which necessarily are known to judicial minded persons and for the safe administration of justice said principles can only be adhered to strictly by the forums manned by the persons responsible to deliver judicial findings subject to following of principles of natural justice.
Art. 184(3)
Exercise of jurisdiction under Art.184(3) of the Constitution
Scope
Supreme Court enjoys jurisdiction to proceed in all those matters which are justiciable; however, if there is an issue, which is alleged to be non-justiciable it would be the duty of the Court to examine each case in view of its facts and circumstances, and then to come to the conclusion whether it is non-justifiable or otherwise.
Arts. 9, 14, 19A, 187, 190 & 184(3)
Supreme Court Rules, 1980, O.XXXII, Rr.1 & 2 read with O. XXXIII, R.1
Civil Procedure Code (V of 1908), O.XXVI, R.10
Constitutional petitions questioning therein the contents of a Memo. published in a newspaper "Financial Times" London, written by respondent on stated allegations and according to the version of respondent, Memo. in question was prepared/drafted for the purpose of delivery of the same to the Chairman of U.S. Joint Chief of Staff through former U.S. National Security Advisor
Ascertainment of origin, authenticity and the purpose of the drafting/creating the Memo. was a matter of public importance and, prime facie, called for enforcement of fundamental rights of the petitioners provided under Arts. 9, 14, & 19A of the Constitution
Arguments raised before the Supreme Court posed two questions firstly, to conduct probe to ascertain the origin, authenticity and effect of the Memo. for the purpose of Fundamental Rights; and secondly consequential effect of such probe, which would determine civil and criminal liability against the person(s), who were responsible for it
Such questions, in exercise of power of judicial review, were justiciable by Supreme Court treating same to be proceedings of criminal nature, as in exercise of Art.184(3) of the Constitution, Supreme Court was seized with the case which fell in the category of inquisitorial nature
To initiate proceedings in the cases with the object of enforcement of fundamental rights guaranteed under Chap. 1, Part II of the Constitution, relating to a matter of public importance, Supreme Court enjoys ample powers to constitute Commission
Issue of probe to ascertain the origin, authenticity and purpose of creating/drafting Memo. was required to be determined by holding a judicial probe
Supreme Court, in exercise of judicial powers conferred upon it under Arts.187 and 190 of the Constitution, O.XXXII, Rr.1 & 2 read with O.XXXIII, R.1, Supreme Court Rules, 1980 coupled with the principles of C.P.C. including its O.XXVI, R.10 constituted a high powered Commission
Issue of probe through experienced Judicial Officers who were Chief Justices of three High Courts itself was sufficient to attach importance with the case from two angles that the matter relating to sovereignty, independence and security of Pakistan and during course of probe procuring of evidence shall be helpful to determine civil liability as well as criminal culpability based an forensic evidence and other material, which was likely to be produced before the Commission
Senior Judicial Office holders in view of their experience would conduct through probe into the matter in order to ascertain the correct facts.
Bona fides are to be presumed unless the party challenging the action is able to substantiate that the action was mala fide or without any grounds whatsoever.
Art. 19A & 184(3)
Article 184(3) read in conjunction with Art.19-A of the Constitution has empowered the citizens of Pakistan by making access to information a justiciable right of the people rather than being largesse bestowed by the State at its whim
Article 19-A of the Constitution has thus, enabled every citizen to become independent of power centres which heretofore, were have been in control of information on matters of public importance
Art. 19A
Citizens of Pakistan, through Art.19A of the Constitution have been freed from the caprice of a sorry fate and have become independent of whistle-bowlers in foreign lands or the magnanimity of the likes of WikiLeaks or biographies of political actors, to get to the information they are now entitled to as of right under the Constitution, which provides for and makes good a crucial missing element of responsible State governance in the scheme of the Constitution.
Arts. 19A & 184(3)
Constitutional petitions questioning therein the contents of a Memo. published in a newspaper "Financial Times" London written by respondent on stated allegations and according to the version of respondent, Memo. in question was prepared/drafted for the purpose of delivering the same to the Chairman of U.S. Joint Chief of Staff through former U.S. National Security advisor
Memo. and the events surrounding it were "matters of public importance" was not contentious between the parties arrayed before the Court
Parties were also agreed that said events should be probed
Petition under Art.184(3) of the Constitution to enforce the Fundamental Right granted by Art.19A of the Constitution therefore, was maintainable.
Arts. 19A & 184(3)
Constitutional petitions questioning therein the contents of a Memo. published in a newspaper "Financial Times" London, written by respondent on stated allegations and according to the version of respondent, Memo. in question was prepared/drafted for the purpose of delivering the same to the Chairman of U.S. Joint Chief of Staff through former U.S. National Security Advisor
Contention was that the petitions raised a political question and the Supreme Court, should, therefore, avoid deciding the same
Held, conduct of a government's foreign policy was indeed, by and large, a political question, but the fact was that the present petitions did not require the court to devise the country's foreign policy or to direct the government in that regard
Present petitions had only sought to enforce the people's right to know the truth about what their government and its functionaries, were up to, and that was by no means, a political question and was fully justiciable fundamental right enumerated in Chap. II, of the Constitution no less.
Arts. 19A & 184(3)
Freedom of Information Ordinance (XCVI of 2002), S.3
Right to information/access to information not denied
Scope
Interpretation of Art.19A of the Constitution and S.3 of the Freedom of Information Ordinance, 2002
Held, it was clear from reading of Art.19A of the Constitution and S.3(1) of the Freedom of Information Ordinance, 2002 that the constitutional right was much broader and more assertive than the statutory right which by its own terms was restricted to disclosure of official record only
Principle of law was that the fundamental right under Art.19A of the Constitution was grant of the Constitution, and, therefore could not be altered or abridged by a law enacted by the Parliament.
Fundamental right granted by the Constitution could not be altered or abridged by a law enacted by the Parliament.
Arts. 19A & 184(3)
Constitutional petitions questioning therein the contents of a Memo. published in a newspaper "Financial Times" London written by respondent on stated allegations and according to the version of respondent, Memo. in question was prepared/drafted for the purpose of delivering the same to the Chairman of U.S. Joint Chief of Staff through former U.S. National Security Advisor
Held, when the question was for the truth under Art.19A of the Constitution, and nothing but the truth the court could not foresee the result of the probe which was ordered
Contention was that the court to adjust its opinion according to some anticipated consequences of such inquiry
Held further that Court being an objective enforcer of fundamental rights could not do that
Whether the petitioners or the respondents stood to benefit from the order of the Court or which institution or functionary of the State ends up being indicted by the Truth, Court was not called upon the say; in fact such was the very point of the inquiry; the only calculus Supreme Court was entitled to engage in was the calculus of true information and its availability to the citizens of Pakistan
Truth will indeed be critical if the nation is to achieve the goal
Constitution, in its preamble, had set for all organs of the State viz. the preservation of democracy achieved by the unremitting struggle of the people against opinion and tyranny
Supreme Court, therefore, could not deny to the citizens their guaranteed fundamental right under Art.19A by limiting or trivializing the scope of such right through an elitist construction whereby information remained the preserve of those who exercised State power.
Part I, Chap. I [Arts. 8 to 28]
Nexus between security of person and State; dignity of person and State and between a right and its different implications and manifestations illustrated.
Judgment & Decree
JAWWAD S. KHAWAJA, J.
"And ye shall know the Truth, and the Truth shall set you free" (John 8:32). Thus spake Hazrat Isa, the Messiah and champion of the oppressed. In the same vein, the Persian savant Hakeem Sinai Ghaznavi said: "embrace the truth and become free of grief and torment". It is these Biblical and sage sentiments and other similar sensibilities which appear to have inspired an important change in the Constitution - the recent incorporation of Article 19A in the Chapter on fundamental rights. The said Article stipulates that "every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law". Most petitioners and respondents, and their learned counsel seem to have ignored or glossed over the significance of this major constitutional change. While the circumstances in which these cases arise have been elaborated in fair detail in the reasoning of Hon'ble the Chief Justice, I only reiterate this salient aspect of the case.
2. It is an unfortunate facet of our history that during the 64 years since Pakistan's independence in 1947, the people of Pakistan have been, at times, disserved by a non-inclusive governance paradigm where information critical to them has been withheld from them. Pakistan has faced many crises of public importance. This, in itself, is not unexpected in the life of a State. What has, however, been aggravating for the People is that numerous inquiries and probes have been undertaken by Governments which have spent substantial amounts of public time, money and effort, but the citizens of Pakistan, the most direct affectees, have remained clueless and uninformed as to the causes or the progenitors of the multiple crises in our history.
3. Major events in our history in the past six decades since 1947 have included the dismemberment of the country in 1971 and the murder of one incumbent and one former Prime Minister of Pakistan. We have witnessed the extraordinary case of those in the seats of governance in December 1971 informing us that all was going well in East Pakistan even after the surrender of forces in Dhaka. The results of probes into such events have almost invariably been withheld from the people of Pakistan or, at times, selectively disclosed. The people in quest of the truth have mostly been left with conjectures, rumours and half truths. Concealment of information has, in turn led to a distorted history of the country and to a destabilizing division in the polity.
4. This paradigm has shifted through the recent incorporation of Article 19A in the Constitution. By virtue of the said Article the right of a citizen to have information "in all matters of public importance" is made a fundamental right which is guaranteed by the Constitution. Article 184(3) of the Constitution stipulates, inter alia, that this Court shall have jurisdiction to pass an order in a case "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 [of the Constitution] is involved" Article 184 (3) read in conjunction with Article 19A has empowered the citizens of Pakistan by making access to information a justiceable right of the People rather than being largesse bestowed by the State at its whim. Article 19A has thus, enabled every citizen to become independent of power centres which, heretofore, have been in control of information on matters of public importance.
5. Many of the arguments that came up during the hearing of these petitions are premised on a lack of appreciation not just for this aspect of our constitutional law, but also for the intrinsic worth of Truth as a value in itself. What, it may be asked, is the intrinsic worth of information as a stand-alone fundamental right? The answer to this is simple. The very essence of a democratic dispensation is informed choice. It is through such choice that the political sovereign, the People of Pakistan acquire the ability to reward or punish their elected representatives or aspirants to elected office, when it is time for the People to exercise their choice. If information on matters of public importance is not made available to citizens, it is obvious they will not have the ability to evaluate available choices. Information on matters of public importance thus, is a foundational bedrock of representative democracy and the accountability of chosen representatives of the people. It is in this context, both historical and conceptual, that the fundamental right to information has to be seen. Through Article 19A in the Constitution, the citizens of Pakistan have also been freed from the caprice of a sorry fate and have become independent of whistle-blowers in foreign lands or the magnanimity of the likes of WikiLeaks or biographies of political actors, to get to the information they are now entitled to as of right under the Constitution. This provides for and makes good a crucial missing element of responsible State governance in our Constitutional scheme.
6. At this point it is necessary to highlight an important aspect of our Constitution which is often over-looked. The Constitution of 1973 has not been bestowed as a matter of grace on the People of Pakistan by a monarch or a foreign Parliament as, for instance, is the case with Canada, Australia and a number of other countries. Our Constitutional Order has been established by "the will of the people of Pakistan". All State functionaries have to understand that in a very real sense, they are employed in the service of the People of Pakistan and are paid for by them. The loyalty, therefore, of these State functionaries has to be to the Constitutional Order established by the People. Once this context is understood, the issue in these petitions stands greatly simplified. There is no contention between the parties arrayed before us that the Memo and the events surrounding it are "matters of public importance". The parties are also agreed that these events should be probed. It is, therefore, clear that a petition under Article 184(3) to enforce the fundamental right granted by Article 19A is maintainable.
7. We are cognizant that there may be situations where the Government may want to justify non-disclosure of information on a matter of public importance. That plea, however, does not arise and nor has it been taken in these cases. It is, therefore, not necessary to comment on the same as a mere speculative exercise. Learned ASC for Mr. Haqqani contended that these petitions raise a political question and the Court should, therefore, avoid deciding the same. This argument has been adequately discussed in the reasoning of Hon'ble the Chief Justice. I would only add that the conduct of a government's foreign policy is indeed, by and large, a political question. But the fact is that the present petitions do not require us to devise the country's foreign policy or to direct the government in that regard. These petitions only seek to enforce the People's right to know the truth about what their government, and its functionaries, are up to. And that is by no means, a political question. It is a fully jusiticiable fundamental right enumerated in Chapter II, of the Constitution no less. We need not look any further than Article 19A, for this conclusion.
8. This brings me to a consideration of the Freedom of Information Ordinance, 2002 ("FIO, 2002") and to see if there is anything therein which can support the contention advanced on behalf of Mr. Haqqani, that the information sought by the petitioners should be denied to them in these proceedings or that the FIO 2002 is an adequate and complete alternate to Article 19A. Section 3 (1) of the FIO 2002 specifies the substantive right provided for thereunder. It is couched in restrictive language and reads as under:-- "
3. Access to information not to be denied--(1) Notwithstanding anything contained in any other law for the time being in force, and subject to the provisions of this Ordinance, no requester shall be denied access to any official record other than exemptions as provided in section 15." In stark contrast Article 19A in affirmative and expansive language avows as under: "19A. Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law."
9. It is clear from a reading of Article 19A and section 3 (1) ibid, that the Constitutional right is much broader and more assertive than the statutory right which by its own terms is restricted to disclosure of official record only. Furthermore, the principle of law is that the fundamental right under Article 19A is a grant of the Constitution and, therefore, cannot be altered or abridged by a law enacted by Parliament. The submissions of learned ASC for Mr. Haqqani, based on the FIO 2002 are, therefore, misconceived and have no merit.
10. At this point it may also be added that when the quest is for the truth under Article 19A, and nothing but the truth, the Court cannot foresee the result of the probe which has been ordered. The arguments on behalf of Mr. Haqqani amount to asking the Court to adjust its opinion according to some anticipated consequences of such inquiry. As an objective enforcer of fundamental rights we cannot do that. Whether the petitioners or the respondents stand to benefit from our order or which institution or functionary of the State ends up being indicted by the Truth, we are not called upon to say. In fact, that is the very point of the inquiry; the only calculus this Court is entitled to engage in is the calculus of true information and its availability to the citizens of Pakistan.
11. The Truth will indeed be critical if the nation is to achieve the goal the Constitution, in its Preamble, sets for all organs of the state: viz. "the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny." It, therefore, will not do for this Court to deny to the citizens their guaranteed fundamental right under Article 19A by limiting or trivializing the scope of such right through an elitist construction whereby information remains the preserve of those who exercise state power. (Sd.) (Jawwad S. Khawaja) Judge EJAZ AFZAL KHAN, J.
I have gone through the judgment authored by my lord the Chief Justice. It is complete and comprehensive in all respects. Reasons recorded and the case-law referred are so persuasive and powerful that one cannot have any other choice but to agree therewith. I respectfully agree with the judgment thus authored. However, I would like to add a few words to illustrate nexus between security of person and State and dignity of person and State and also nexus between a right and its different implications and manifestations.
2. The right to vote, for instance, is not a right confined to casting a ballot. It is a wider and more comprehensive term. If it, on the one hand, aims at choosing the representative, it on the other includes the right to participate in the electoral process, political activity consisting in forming a political party, projecting a programme through a manifesto and propagating it and thereby persuading the people to accept it. In the case of Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) and many other cases cited in the main judgment this Court has interpreted the expression fundamental right as of much greater amplitude and of much wider ring and connotation. It has been extended to include all the possible implications and manifestations of such right. Apparently registration of a political party has no nexus with a fundamental right. The more so when the vires of a statute making its registration compulsory is challenged in a Court of law. But since it is one of the manifestations and one of the consequential effects of such right, it was extended to cover the same.
3. Security of person is one of the most important fundamental rights. It is inextricably linked with the security of the State. If and when a person performing functions in connection with the affairs of the Federation acts in a manner which imperils the very existence of the State a writ of prohibition or any other appropriate writ, according to the circumstances of the case could be issued against him. A petition filed by a citizen asking for the issuance of an appropriate writ cannot be declined simply because his fundamental right has not yet been infringed. A narrow and pedantic interpretation may lend support to the argument that security of person is not imperiled or infringed by a mere threat to the security of the State, but actually it is otherwise. Security of person in the absence of a strong, secure and stable State would be inconceivable. It would be as imaginary as drinking water from a mirage. Therefore, fundamental right of person would stand infringed the moment something tending to imperil the security of State is done.
4. Why is loyalty to the State the basic duty of every citizen? Why is obedience to the Constitution and law the inviolable obligation of citizens? Why are fundamental rights suspended when security of the State is at stake? Because the State is a fortress protecting such rights. Because the Constitution and the law are the fountains of such rights. So long as the fortress is intact fundamental rights shall remain protected. So long as the fountains are secure fundamental rights would continue flowing from it. It would thus be naive to say that threat to security of the State has nothing to do with fundamental rights of person. A threat to the fortress protecting such rights would, therefore, be a threat to the security of person. A citizen with seeing eyes and thinking mind would not sit relaxed and relieved till the fall of such fortress by seeking refuge in the belief that security of person is yet to be attacked or assaulted. Such belief seems have originated from no other state except that of self-deception. A person hacking a branch of a tree another is sitting on, does not harm the latter but when the branch is hacked, its fall would coincide with the fall of the person sitting thereon.
5. The Constitution of the Islamic Republic of Pakistan not only guarantees the security of person but also his right to live with dignity. The word "dignity" has various shades of meanings. It, according to Chambers 21st Century Dictionary means "stateliness, seriousness and formality of manner and appearance, goodness and ability of character, calmness, self-control and high rank and position." This right has various effects and implications ranging from individual life to the collective national life. Within the confines of his individuality he may be respectable but he cannot live with his head high within or outside his country, when the country does not command respect in the comity of nations. If the dignity of State which cannot be detached from the dignity of person, appears to have been compromised or made negotiable by express or implied terms he not only looses his moorings but also ceases to live with dignity and respect. His right thus stands infringed. In the case of Benazir Bhutto v. Federation of Pakistan (PLD 1998 SC 388) this Court while highlighting this aspect held in no uncertain terms that the right to live includes the right to live with respect, honour and dignity. Therefore, dignity of person being commingled with the dignity of State cannot be dealt with as something apart from the latter. Wherever an act or omission of a person who is at the helm of affairs in any department of life tends to compromise or even negotiate the dignity of the State that would be an affront to the fundamental right of the citizen guaranteeing his dignity, notwithstanding his person may not be subjected to any indignity. This is what has been portrayed in the preamble of the Constitution in the words as follows:-- "So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity;"
6. What is sovereignty and what does it mean? Sovereignty means supreme and independent power or authority. According to the preamble of the Constitution, authority over the entire universe belongs to Almighty Allah alone. This has been delegated to the people as a trust. It is to be exercised by them through their chosen representatives within the limits prescribed by Him. Principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam are the norms to be followed. Those who are chosen are not given carte blanche to rule according to their whim and caprice but according to the provisions of the Constitution and law. Any chosen representative who does not exercise this authority in accordance with the provisions of the Constitution shall betray the mandate given to him pursuant to the exercise of right to vote. Such a course though does not infringe a right at its primary level but it does so in its ultimate form and manifestation. Because the very condition for the exercise of such right is that those who are chosen shall exercise their authority in accordance with the provisions of the Constitution.
7. Consent to, connivance at or complicity in the infringement of security of person may not be so criminal, as an act, an omission or an attitude evincing the aforesaid attributes in the infringement of security of State. It is rather pedantic, perverse and preposterous to detach or disassociate security, solidarity and sovereignty of the State from fundamental rights. Security of person and security of State are integral part of each other. Existence of one cannot be conceived without existence of the other. All this is a part of an organic, integrated and indivisible whole. As an injury to a limb of one's body can't be considered in isolation, so can't be an injury to a vital organ like the brain or the heart when it tends to paralyze or benumb all the limbs. One cannot keep them in water tight compartments or away from or independent of each other. Security of the State is like a ship. One cannot have a safe and smooth sailing in the ship by permitting others to drive a hole into that. Such an approach or outlook, we are afraid, would be dangerous, devastating and even catastrophic for all those who live in the hard world of reality and, of course not in fool's paradise. Partial and piecemeal approach or outlook in such matters cannot be approved of. It, therefore, follows that the nexus between security of person and State and dignity of person and State cannot be lost sight of while hearing a lis for enforcement of fundamental rights. The probe ordered by us is a prelude thereto as it aims at uncovering the truth for taking remedial measures before the situation goes beyond repair. (Sd.) (Ejaz Afzal Khan) Judge 12-1-2012 M.A.K./W-1/S Order accordingly.