MQM Reply on Decission of Supreme Court 26 Feb 2009

DECISION MAY BE UNPOPULAR BUT BASED ON FACTS – MQM COORDINATION COMMITTEE

SYMPATHIES WITH SHARIF BROTHERS

All political parties of the country to demonstrate political wisdom and maturity that is required to
steer the country out of this critical and challenging times

Karachi: 26^th February 2009

The MQM Central Co-ordination Committee stated that the judgment of the Supreme Court may not appear to be a popular judgment and we are sympathetic to Sharif Brothers, however, the decision is based on the merit of the facts and evidences as were presented during the trial of the case.

The MQM Central Coordination Committee appealed to all the political parties of the country to demonstrate political wisdom and maturity that is required to steer the country out of this extremely critical and challenging times of its history.

After two days of deliberation the MQM Central Coordination Committee also presented the report of the constitutional and legal experts of the MQM on the decision of 25^th February 2009, which is as follows:

A. Case of Mian Muhammad Nawaz Sharif

1. Against the order of the Returning Officer of the Election Tribunal and the Chief Election Commissioner holding Mian Muhammad Nawaz Sharif to be qualified to contest elections, one Noor Elahi filed a writ petition bearing no.6468/2008, which came before a Full Bench of the Lahore High Court comprising Mr. Justice Abdul Shakoor Paracha, Mr. Justice M. Bilal Khan and Mr. Justice Syed Shabbar Raza Rizvi.

2. On 23.6.2008 the Hon’ble Full Bench of the Lahore High Court decided the matter and the operative part of the said judgment is as follows:-

“18. We are in agreement with the learned counsel for the petitioner that Presidential Order under Article 45 of the Constitution of the Islamic Republic of Pakistan, 1973 does not exonerate the respondent No.1 (i.e. Nawaz Sharif) from the sentence and conviction recorded by the Court of competent jurisdiction particularly, when the respondent has failed to produce the Presidential Order…….

19. In view of the above discussion, we hold that respondent No.1 (i.e. Nawaz Sharif) is a convict in view of the judgment of Accountability Court, in reference No.2 of 2000 dated 22.7.2000, whereby he was convicted under section 10 read with section 9(a)(v) of the NAB Ordinance and sentenced to 14 years’ R.I. and a fine of Rs20,00,000,000 in default of payment of fine he was further directed to undergo R.I. for a period of three years. He was also disqualified for 21 years for seeking or from being elected, chosen, appointed or nominated as member of representative of any public office or any statutory or local authority of Government of Pakistan. We also hold that respondent No.1 has scandalized, abused, disobeyed and ridiculed the judiciary of Pakistan. He has also sworn a false affidavit attached with the nomination papers.

20. In view of our above findings, order of the Returning Officer, dated 15.5.2008, order of the learned Tribunal dated 31.5.2008 and order of the learned Election Commissioner of Pakistan dated 1.6.2008 are set aside and are declared to be of no legal effect. As a result of above the findings, the responding No.1 (i.e. Nawaz Sharif) is declared as disqualified to contest the upcoming bye-election scheduled to take place on 26.6.2008 in view of the express provisions of Articles 62 and 63 of the Constitution to be read with section 99(f)(g) of the Representation of People Act, 1976.”

3. In view of the above judgment of the Full Bench of the Lahore High Court Mian Muhammad Nawaz Sharif stood disqualified from taking part in the electoral process. Against this judgment of the Lahore High Court Mian Muhammad Nawaz Sharif did not himself file any appeal/petition before the Supreme Court but rather the Federal Government filed an appeal before the Supreme Court of Pakistan, which has been dismissed by a short order of the Supreme Court of Pakistan on 25.2.2009.

B. The case of Mian Shahbaz Sharif

4. The Returning Officer had rejected the objections of one Malik Nazar Abbas against the nomination papers of Mian Shahbaz Sharif, against which the objector i.e. Malik Nazar Abbas filed an application under section 14(5-A) of the Representation of the Peoples Act, 1976 before the Election Tribunal comprising two learned judges of the Lahore High Court on grounds that Mian Shahaz Sharif was disqualified as he had sworn a false declaration to the effect that he was qualified under article 62 of the Constitution and that he was not disqualified under article 63 of the Constitution. The above application under section 14(5-A) was heard by the Election Tribunal alongwith appeal No.26-A of 2008 and was decided by a common order whereby one learned Judge allowed the application of Malik Nazar Abbas whereas the other learned Judge dismissed his application. When the matter was referred to the Chief Election Commissioner, he vide order dated 1.6.2008 held that since the last date of deciding the election appeals had lapsed the petition of the objector would be deemed to have been dismissed.

5. The order of the Returning Officer, Election Tribunal and the Chief Election Commissioner were challenged before the Lahore High Court in writ petition No.6479/2008. This writ petition was heard by a Full Bench of the Lahore High Court comprising Mr. Justice Abdul Shakoor Paracha, Mr. Justice Bilal Khan and Mr. Justice Shabbar Raza Rizvi on 23.6.2008 the petition was allowed and it was held that although an appeal before the Election Tribunal would lapse if not decided within the limitation period but an application under section 14(5-A) of the Representation of the Peoples Act, 1976 filed by the objector would not automatically lapse and the Chief Election Commissioner had erred in holding that due to the expiry of time the application under section 15(5-A) has lapsed. Accordingly the Full Bench of the Lahore High Court had set aside the impugned orders and held that the application under section 14 (5-A) would be deemed to be pending before the Election Tribunal and the Chief Election Commissioner was directed to constitute a fresh Tribunal comprising three Judges of the Lahore High Court to decide the said application under section 14(5-A) so as to adjudicate upon the disqualification of Mian Shahbaz Sharif. Till such time the Election Tribunal were to decide the matter, Mian Shahbaz Sharif was directed by the Lahore High Court to perform functions as the Chief Minister of the Punjab and the Member of the Provincial Assembly.

6. Against this order Mian Shahaz Sharif did not file any appeal/petition before the Hon’ble Supreme Court but instead the order of the High Court dated 23.6.2008 was challenged by the Federal Government before the Hon’ble Supreme Court.

7. On 26.6.2008 the Supreme Court granted stay against the Election Tribunal from adjudicating upon the disqualification of Mian Shahbaz Sharif.

NB: This stay order stands vacated in view of the order of the Supreme Court dated 252.2009 dismissing the appeals.

C. Comments

8. The Hon’ble Supreme Court vide order dated 25.2.2009 has dismissed both the petitions/appeals of the Federal Government whereby the two orders of the Lahore High Court in writ petition No.6468/2008 dated 23.6.2008 (pertaining to Mr. Muhammad Nawaz Sharif) and the writ petition No.6479/2008 dated 23.6.2008 (pertaining to Mian Shahaz Sharif) were dismissed.

9. From a legal point it may be stated that if M/s. Mian Muhammad Nawaz Sharif and Mian Shahbaz Sharif chose not to prefer any petition/appeal against the orders of the Lahore High Court, the appeals/petitions before the Hon’ble Supreme Court were not maintainable at the behest of the Federal Government. In this respect one may refer to the following two judgments of the Supreme Court:-

a) Secretary to the Government of Punjab v. Syed Farooq Hassan Naqvi 1972 Supreme Court Monthly Review 300:-

In this case services of officers were terminated by the Lahore Municipal Corporation. such orders were set aside by the Lahore High Court against which the Punjab Government filed appeals before the Supreme Court. It was held that appeals ought to have been filed by the Lahore Municipal Corporation and not the Punjab Government. Hence the appeals were dismissed on grounds that the same were not maintainable as the Punjab Government had no locus standi to file the appeals;

b) Government of Sindh v. Mst. Najma 2001 Supreme Court Monthly Review 8:-

In this case certain costs were awarded by the High Court against the District Magistrate and the Superintendent of Police. No appeal was filed by the District Magistrate and the Superintendent. Instead an appeal was filed by the Government of Sindh. It was held that the appeal was not maintainable at the behest of the Government of Sindh which had no locus standi since the appeal ought to have been filed by the District Magistrate and the Superintendent police who were aggrieved in their personal capacity against the order of the High Court.