LAHORE: The Lahore High Court has ruled that the demand for a presidential system of government in Pakistan is against the basic structure of the Constitution.

“The writ of mandamus can only be issued, under Article 199 of the Constitution, to a person to do what is required by law to do,” observed Justice Jawad Hassan, dismissing a writ petition seeking directions to the cabinet division to decide an application that seeks a referendum for presidential system in the country.

A citizen, Hafeezur Rehman Chaudhry, had filed a petition through Barrister Ahmad Pansota with multiple prayers, including a direction to the cabinet division to refer the matter to parliament for consideration, discussion and evaluation of the current system and holding a referendum to ascertain the will of people.

The judge asked the counsel to satisfy the court on the maintainability of the petition, as the plea went against the basic structure of the Constitution and jurisprudence developed by the superior courts of Pakistan.

Barrister Pansota explained that the reason for filing the petition was only that various applications of the petitioner addressed to the cabinet division had not been considered and decided so far. He said the petitioner sought indulgence of the court by filing the writ of mandamus to direct the respondents to do what is required by law to do, specifically under the Federal Rules of Business 1973.

However, Justice Hassan in his verdict observed that the plea for holding a referendum goes against the basic structure of the Constitution regarding democracy.

He explained that the LHC has already passed a detailed judgement by discussing the preamble of the Constitution on democracy in a 2021 case of ‘Jamshed Iqbal Cheema versus The Election Appellate Tribunal and others’, which clearly states that principles of democracy shall be fully observed.

The judge observed that such petitions brought before the court in this legal system will try to change the structure of the Constitution, the scope of which has been elaborated by the Supreme Court in ‘District Bar Association, Rawalpindi and others versus Federation of Pakistan and others’.

Justice Hassan also referred to a Supreme Court of India judgement in the famous case of ‘Kesavananda versus State of Kerala (AIR 1973 Supreme Court 1461)’ wherein it held that the basic structure and framework of the constitution cannot be altered as it was made by the chosen representatives of the country.

The petitioner’s counsel told the court that he would not press the matter if the petitioner was granted hearing by any of the relevant authorities of the cabinet division because under the federal rules, the cabinet can decide any matter if provided therein.

However, the judge observed, “I am afraid the request of the petitioner regarding issuance of a direction by this court for expeditious disposal of his aforesaid application/request cannot be allowed being not tenable in the eyes of law.”

He said that in this case, neither a proper party had been named to whom a direction could be issued, nor was the relevant law cited under which such directions can be issued, and dismissed the petition as non-maintainable.

Published in Dawn, February 10th, 2022

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