December 30, 2003	Tuesday	Ziqa’ad 6, 1424

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LAHORE, Dec 29: The Lahore High Court has dismissed a constitutional petition challenging the veracity of the referendum, held on April 30, 2002, on the ground that it had asked political questions and not provided material enough to substantiate facts pertaining to the conduct of the electoral exercise.

The Pakistan Lawyers Forum (PLF) filed the petition through its president advocate A.K. Dogar who contended that the referendum was a deceitful, fraudulent and an incredibly horrendous criminal exercise which was imposed on the people of Pakistan.

The petitioner-lawyer had prayed to the court that the electoral exercise be declared unlawful and unconstitutional.

Justice Syed Tasaddaq Husain Jilani observed in his judgment, announced here on Monday, that courts had of late been called to decide constitutional cases and resolve issues which might not have fallen within their jurisdiction.

“To a certain extent this is a worldwide trend which may also be attributed to the country’s specific phenomenon institutional erosion which leads to the individuals dreaming of or envisioning how things ought to be and how state institutions should function.”

Justice Jilani observed that democracy could not be brought about merely by noble thoughts, words and pronouncements.

“There is no magic wand which can herald the dawn of a new era. Democracy and rule of law cannot bloom and flourish in the absence of other sustaining elements of a civil society — education, tolerance, eternal vigil for rights, commitment to duty, a certain level of economic well being and a culture of values.

“A country and a people have to determine the national priorities in accordance with the aspirations and ideals they cherish. For this every individual and every state institution has to play a defined role.”

The judgment declared that the lawyer approached the court unmindful of the extent of its powers under Article 199 of the Constitution because the prayer made entailed a factual inquiry into the referendum exercise which could be undertaken only by a tribunal of plenary jurisdiction.

Press clippings, articles and columns appearing in newspapers, which the petitioner relied upon the most as an evidence in seeking the disqualification of President Gen Pervez Musharraf, was dealt with at length by the judgment which held that the election of a holder of the public office could not be annulled on the basis of press reports.

In this regard the judgment cited 1984 CLC 1544 under which a similar request was rejected by the Lahore High Court.

The judgment also discussed the media coverage of the referendum.

Justice Jilani held that all the newspapers of the country put together, covered a few polling stations whereas the Election Commission of Pakistan had set up 87,074 polling stations and 163,641 polling booths for the referendum. Some rigging might have taken place but the issue involved was the quantum of rigging and not the manipulation of the electoral exercise. Thus the court could not be expected to annul the entire result on the basis of newspaper reports about a few polling stations.

Summing up the arguments advanced by advocate A.K. Dogar and Attorney-General Makhdoom Ali Khan on Dec 9, the judgment held that the controversy had three dimensions of the whole issue.

In the first instance, it posed the question if the Referendum Order, 2002, could have the effect of amending Article 41(6) of the Constitution; if the answer was in affirmative, the second question arising was if, notwithstanding the mode of elections as provided by the constitution, the President of Pakistan stood elected for a five-year term; and thirdly if the referendum was held in a fair and transparent manner.

Justice Jilani observed that his court was not considering the first two questions as they had been adjudicated by the Supreme Court in the Qazi Husain Ahmad and Watan Party cases (PLD 2002 SC 853 and PLD 2003 SC 74) under which the Referendum Order was held to have been validly issued empowering the Chief Election Commissioner to hold referendum.

Referring to the Syed Zafar Ali Shah case, the Supreme Court had stated that the question of the referendum was not open to challenge.

Regarding the third dimension, the judgment said that the petitioner had not agitated the issue of rigging before the Election Commission of Pakistan nor any individual or political parties complained of rigging in the referendum.

The argument before the court was based on reports, articles and columns in newspapers and it was for plea that the jurisdiction of the court was invoked, although the petitioner did not raise the question of cross-examining reporters and editors of the newspapers whose clippings were appended.

Referring to the case of Wali Khan (PLD 1976 SC 57), which the petitioner had relied upon substantially, the judgment said that it was decided upon a government reference to the Supreme Court under the Political Parties Act, 1962, and other material in addition to newspaper reports.

Such reports, according to the judgment, were not solely relied upon by the Supreme Court which used them in a limited and specific context. Even this limited acceptance of such material by the SC came after publishers of newspapers and books were in the dock.

It was under those circumstances that such a material was considered as evidence. Such a case was an exception and could not be generally admissible in evidence, according to the judgment.

The judgment said that courts might take judicial notice of newspaper reports and articles where direct evidence was not available, in cases of defamation and if an issue was old and eyewitness account was not reliable.

As for the PLF’s case, the petitioner had not stated that he did not have a direct access to evidence, the judgment added.