LAHORE, Dec 6: A full bench of the Lahore High Court on Thursday sought arguments on a point whether Article 248(2) of the Constitution bans entertaining a contempt of court petition against President Asif Ali Zardari for not relinquishing political office in the light of a judgment passed by the LHC last year.
The bench headed by Chief Justice Umar Ata Bandial sought these arguments from the petitioner’s counsel after the federation lawyer, Wasim Sajjad, concluded his arguments on the maintainability of the contempt petition.
Other members of the bench include Justice Nasir Saeed Sheikh, Justice Sheikh Najmul Hassan, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah.
As the bench resumed proceedings, Advocate Sajjad struggled to get the court’s permission for continuing his arguments on the maintainability issue. The chief justice asked the counsel to advance arguments on constitutional immunity enjoyed by the president as he had completed arguments on maintainability.
Advocate Sajjad insisted on arguing on the maintainability issue, saying the point of Article 248(2) (immunity) would rise after the court declared the instant petition maintainable. Advocate A.K Dogar, the petitioner’s counsel, stated that the question of the maintainability had been decided in the order issued by the bench on Oct 10, 2012. He said the proceedings were at a stage of issuing show-cause notice to the president under section 17 of Contempt of Court Law.
Advocate Sajjad reiterated his arguments that no order had been passed against the president but the judgment merely ‘expressed’ that the president maintain complete neutrality, impartiality and aloofness from any partisan political interest, which did not amount to an order or qualify as direction in the nature of mandamus.
Citing judgments of the Supreme Court, he said obligation/order must be expressed clearly and directly issued to the parties involved in a case. The LHC had not issued any binding direction to the president, he said, and added: “If the court issues any direct order, we will defend it.”
Advocate Dogar argued that the Supreme Court had already ruled that nobody was above the law and courts, under Article 204 of the Constitution court of law could punish anybody for committing contempt of court.
He said the SC also declared that Article 248(1) of the Constitution was in clear violation of Article 25. He further said that Article 248(1) did not provide immunity to anybody from any legal proceedings.
At this Justice Bandial pointed out that president and governors enjoyed immunity under Article 248(2) and ambit of both articles was different.
During the course of the arguments, Justice Syed Mansoor Ali Shah also asked Advocate Dogar to cite constitution of any country in world, which allowed action against president or any example of conviction of any head of the state.
The counsel said at the moment he could only discuss the Constitution of Pakistan but would find out such examples if the court asked him.
The bench adjourned further hearing for Friday (today) with a direction to the petitioner’s counsel to come up with arguments on the point of immunity.
Advocate Sajjad expressed his unavailability to attend Friday’s hearing. The chief justice observed that the court had heard arguments of the federation and the presence of its counsel was not required during further hearings.
A citizen, Munir Ahmad had filed the contempt of court petition against the president for holding political office and indulging in political activities in violation of a LHC full bench order. The petitioner said the president had not parted with political office as expected by the LHC full bench in its decision.
Right to vote
The Lahore High Court on Thursday issued a notice to the federation through the attorney general on a petition seeking “right to vote” for Pakistani expatriates. Advocate Shahid Pervez Jami, who filed the petition, contended before the court that he was an overseas Pakistani practicing in the UK as well as in Pakistan and his children studying in the UK were also overseas Pakistanis.
He said they were registered voters in Pakistan as well but they were not entitled to vote through postal ballot as provided under Section 29(1) of the Representation of People Act 1976 though they were residing outside the constituency where their votes were registered.
Advocate Jami argued that right to vote was a constitutional right and accordingly postal ballot should be available to all the registered voters intending to do so whether they were in Pakistan and either not able or unwilling to go to polling station due to any reason or outside Pakistan.
The lawyer further argued that millions of overseas Pakistanis sending a sizeable foreign exchange each year had been discriminated against.
The petitioner said restricting the overseas Pakistanis from exercising their right to vote was violation of their fundamental rights enshrined in the Constitution.
He prayed that Section 29(1) of the act be declared unconstitutional as therein right of postal ballot had been only to government servants, their families, prisoners and officials on election duty.
After hearing initial arguments, Justice Syed Mansoor Ali Shah issued notice to the government for Dec 17.