CPP files petition in Election Commission against Qadri’s Agreement.

IN THE ELECTION COMMISSION OF PAKISTAN, ISLAMABAD.
(Original Jurisdiction)


                          Petition No.           of 2013.


Communist Party of Pakistan,  
Through its Central Chairman:
Engineer Jameel Ahmad Malik,
Communist Party Secretariat,
1426-Fateh Jang Chowk, 
Attock Cantonment.   

                                             .........Petitioner

Versus

1.           Federation of Pakistan through the Secretary Ministry of law and Justice, 
Ministry of law, Government of Pakistan, Islamabad.
 
2.       Chaudhry Shujat Hussain, Leader of Delegation and President Pakistan Muslim 
League (Shujat), Central Secretariat, 4 Main Margalla Road, Sector F-7/3, Islamabad.
 

3.       Pakistan Awami Tehreek, Central Secretariat: 365-M, Model Town, Lahore.

 
4.       Dr. Muhammad Tahir-ul-Qadri, Patron-in-Chief of Minhaj-ul-Quran International, 
365 M, Model Town, Lahore. 
 
5.       Minhaj-ul-Quran International, 365 M, Model Town, Lahore.
        
                                                ………          RESPONDENTS

 

A Petition under the Articles 218(3), 219, 17 and 214 of the Constitution of Pakistan, 1973 read with the Articles 5, 12 and 13 of the Political Parties Order, 2002 and Rule 7 of the Political Parties Rules, 2002.

 

Respectfully Sheweth,

            That the aforesaid Petition under the Articles 218(3), 219, 17 and 214 
of the Constitution of Pakistan, 1973 read with the Articles 5, 12 and 13 of the 
Political Parties Order, 2002 and Rule 7 of the Political Parties Rules, 2002 is 
being filed by the petitioner on the points of law, facts and grounds, as 
narrated, herein as under:-

 

POINTS OF LAW:
 

A.           Dr. Tahir-ul-Qadri being dual national of Canada and Pakistan is 
disqualified being elected as Member of Parliament under Article 63 (1)(c) 
and also he cannot be an office bearer of Pakistan Awami Tehreek under section 
5 of the Political Parties Order, 2002. How then he signed the Islamabad Long 
March Declaration as the Chairman of the Pakistan Awami Tehreek (PAT) when 
after dual nationality he ceases to be the Chairman of PAT?

B.           Even otherwise, the Awami Pakistan Tehreek is not now a registered 
political party with the Election Commission of Pakistan (ECP) as PAT does not 
now fulfill the requirements of Article 17 (3) (4) of the Constitution of Pakistan, 
1973 and Political Parties Order, 2002 and Political Parties Order Rules, 2002. 
A party which is not now registered with the ECP meaning thereby that the 
signature of Dr. Tahir-ul-Qadri on Islamabad Long March Declaration does not 
have any legal sanctity. Is this view of petitioner is correct?

C.           Whether the Respondents No. 1 to 5 can amend the Articles 213 to 
221 and Articles 224, 224A in the presence of Articles 238 and 239 of the 
Constitution of Pakistan, 1973 just by signing the Islamabad Long March Declaration?

D.           Whether an NGO like Minhaj-ul-Quran registered under the Societies Act, 
1860 can violate its constitution and can indulge in politics in violations to its 
aims and objectives as enshrined in the Articles and Memorandum of Association 
of Minhaj-ul-Quran?

E.           Whether an NGO like Minhaj-ul-Quran registered under the Societies Act, 
1860 can violate its constitution and can go for long March to Islamabad in violations 
to its aims and objectives as enshrined in the Articles and Memorandum of Association 
of Minhaj-ul-Quran?

F.            The right to form association or union or political party is a vested 
and constitutional right of every citizen of Pakistan under Article 17 of the 
Constitution but does association registered under sub-article 1 can perform 
the functions of a political party registered under sub-article 2 of Article 17 
of the Constitution of Pakistan, 1973? The answer is NO.

G.           That no association or union formed or operating under sub-article (1) 
of Article 17 can engage in any political activity and can give the call of long 
March or can be signatory of Islamabad Long March Declaration as mentioned in 
sub-article (2) of the same Article. Whether this view is correct and lawful?

 

 

FACTS OF THE CONSTITUTIONAL PETITION:

 

1.         That this is a public interest petition.

2.         That the petitioner is a political party established in almost every country of the world. In some parts of the world, the Communist Party is a ruling party and in the rest of the countries, it is opposition of the ruling party. Its basic manifesto is to have socialism based on the ideology of Karl Marx, who was a German philosopher, political economist, historian, political theorist, sociologist, communist and a great revolutionary of all era. Communist Party of Pakistan (CPP) under its subjective condition is in the political arena for the social change, free from exploitation of man by man and is working for the welfare of the downtrodden and poor masses. Accordingly, the CPP files this petition through its Central Chairman, Engineer Jameel Ahmad Malik requesting the Election Commission of Pakistan to declare the agreement and declaration called Islamabad Long March Declaration as unlawful, illegal, unconstitutional, ultra-vires, inoperative, void and ab-initio on the following facts and grounds, which are as under:-

3.       That on 17th January, 2013 an agreement and declaration was made between Respondents No. 1 to 5 now known as the ‘Islamabad Long March Declaration’ which was telecast by electronic media on the same day of 17th January and was notified in the print media on next day of 18th January, 2013 and which reads as under:-

            “Islamabad Long March Declaration –

Following decisions were unanimously arrived at; having been taken today, 17 January 2013, in the meeting which was participated by coalition parties delegation led by Chaudry Shujaat Hussain including:

  1. Makdoom Amin Fahim, PPP
  2. Syed Khursheed Shah, PPPP
  3. Qamar ur Zama Qaira, PPPP
  4. Farooq H Naik, PPPP
  5. Mushahid Hussain, PML-Q
  6. Dr Farooq Sattar, MQM
  7. Babar Ghauri, MQM
  8. Afrasiab Khattak, ANP0
  9. Senator Abbas Afridi, FATA

With the founding leader of Minhaj-ul-Quran International (MQI) and Chairman Pakistan Awami Tehreek (PAT), Dr Muhammad Tahir-ul-Qadri.

The Decisions

  1. The National Assembly shall be dissolved at any time before March 16, 2013, (due date), so that the elections may take place within the 90 days. One month will be given for scrutiny of nomination paper for the purpose of pre-clearance of the candidates under article 62 and 63 of the constitution so that the eligibility of the candidates is determined by the Elections Commission of Pakistan. No candidate would be allowed to start the election campaign until pre-clearance on his/her eligibility is given by the Election Commission of Pakistan.
  2. The treasury benches in complete consensus with Pakistan Awami Tehreek (PAT) will propose names of two honest and impartial persons for appointment as Caretaker Prime Minister.
  3. Issue of composition of the Election Commission of Pakistan will be discussed at the next meeting on Sunday, January 27, 2013, 12 noon at the Minhaj-ul-Quran Secretariat. Subsequent meetings if any in this regard will also be held at the central secretariat of Minhaj-ul-Quran in Lahore. In pursuance to todays’ decision, the Law Minister will convene a meeting of the following lawyers: S. M. Zafar, Waseem Sajjad, Aitizaz Ahsan, Farough Naseem, Latif Afridi, Dr Khalid Ranja and Hamayoun Ahsan, to discuss these issues. Prior to the meeting of January 27, the Law Minister, Mr Farooq H Naek, will report the results of this legal consultation to the January 27 meeting.
  4. Electoral Reforms: It was agreed upon that the focus will be on the enforcement of electoral reforms prior to the polls on:
  • A. Article 62, 63 and 218 (3) of the constitution
  • B. Section 77 to 82 of the Representation of Peoples’ Act 1976 and other relevant provisions relating to conducting free, fair, just and honest elections guarded against all corrupt practices.
  • C. The Supreme Court Judgement of June 8, 2012 on constitutional petition of 2011 must be implemented in Toto and in true letter and spirit.
  1. With the end of the long march and sit-in, all cases registered against each other shall be withdrawn immediately and there will be no acts of victimisation and vendetta against either party or the participants of the march.

This declaration has been entered into in a cordial atmosphere and reconciliatory spirit.

Signatories of the declaration

Prime Minister of Pakistan Chairman Pakistan Awami Tehreek
Raja Pervez Ashraf Dr Muhammad Tahir-ul-Qadri
Leader of the delegation and former Prime Minister Law Minister
  • Chaudry Shujaat Hussain
  • Farooq H Naek
  • Makdoom Amin Fahim, PPPP
  • Syed Khursheed Shah, PPPP
  • Qamar ur Zama Qaira, PPPP
  • Farooq H Naik, PPPP
  • Mushahid Hussain, PML-Q
  • Dr Farooq Sattar, MQM
  • Babar Ghauri, MQM
  • Afrasiab Khattak, ANP
  • Senator Abbas Afridi, FATA

4.       That vide Article 214 of the Constitution of Pakistan, 1973, the Chief Election Commissioner and other members of the Election Commission of Pakistan has taken oath in the form set out in the Third Schedule which is as under:-

“(In the name of Allah, the most Beneficent, the most Merciful.)

                I,__________________________, do solemnly swear that as Chief Election Commissioner or, as the case may be, member of the Election Commission of Pakistan, I will discharge my duties, and perform my functions, honestly, to the best of my ability, faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law, and without fear or favour, affection or ill-will, and that I will not allow my personal interest to influence my official conduct or my official decisions.

 

May Allah Almighty help and guide me (A’meen).”

5.        That the petitioner party duly registered with the Election Commission of Pakistan is aggrieved on the above mentioned agreement and declaration now called Islamabad Long March Declaration and which also infringes the rights of the petitioner under Article 17 and others relevant Articles of the Constitution of Pakistan, 1973 and law on the following genuine grounds as under:-

GROUNDS:

6.       Accordingly this constitutional petition is filed on the following among other genuine grounds, interalia:-

Firstly –       AGREEMENT AND DECLARATION BY DR. TAHIR-UL-QADRI AS THE CHAIRMAN OF PAKISTAN AWAMI TEHREEK IS HIT BY THE ARTICLE 5 OF THE POLITICAL PARTIES ORDER, 2002.

At the general elections on 20 October 2002, Dr. Tahir-ul-Qadri was elected as an MNA (Member of the National Assembly) from his Lahore constituency. On 29 November 2004, Dr. Tahir-ul-Qadri announced his resignation as a Member of the National Assembly.

Dr. Tahir-ul-Qadri after his resignation migrated from Pakistan to Canada and obtained Canadian Nationality in 2006 as per his own version and admission in Geo TV talk show Aapas Ki Baat with Najam Sethi few days back and due his migration and Canadian Nationality, Dr. Tahir-ul-Qadri ceases to be the Chairman of the Pakistan Awami Tehreek (Respondent No. 3) vide Article 5 of the Political Parties Order, 2002.

Article 5 of the Political Parties Order, 2002 reads as under:-

“5. Membership of political parties.—(1) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party or be otherwise associated with a political party or take part in political activities or be elected as an office-bearer of a political party:

Provided that a person shall not be appointed or serve as an office-bearer of a political party if he is not qualified to be, or is disqualified from being, elected or chosen as a member of the Majlis-e-Shoora (Parliament) under Article 63 of the Constitution of the Islamic Republic of Pakistan or under any other law for the time being in force:”

And as Dr. Tahir-ul-Qadri (Respondent No. 4) being a dual national of Pakistan and Canada is disqualified from being, elected or chosen as a member of the Majlis-e-Shoora (Parliament) under Article 63(1)(c) of the Constitution of the Islamic Republic of Pakistan vide celebrated judgment of Supreme Court titled  Syed Mehmood Akhtar Naqvi versus Federation of Pakistan through Secretary Law and others available on the website of the SC as CONSTITUTION PETITION NO.5 OF 2012 (DUAL NATIONALITY CASE) http://www.supremecourt.gov.pk/web/page.asp?id=1204

The Election Commission of Pakistan can solely ascertain the legal status of Pakistan Awami Tehreek and also to verify as to who is now the Chairman of the Pakistan Awami Tehreek.

 The nut-shell submission is that the agreement and declaration signed by Dr. Tahir-ul-Qadri as the Chairman of the Pakistan Awami Tehreek is nullity, void and ab-initio is now hit by Article 63(1)(c) of the Constitution of Pakistan, 1973 and Article 5 of the Political Parties Order, 2002.

Secondly –       ISLAMABAD LONG MARCH DECLARATION CANNOT

   AMEND THE CONSTITUTION OF PAKISTAN, 1973.

 

That vide so-called agreement and declaration the issue of composition of the Election Commission of Pakistan will be discussed at the next meeting on Sunday, January 27, 2013, 12 noon at the Minhaj-ul-Quran Secretariat (Respondent No. 5). Subsequent meetings if any in this regard will also be held at the central secretariat of Minhaj-ul-Quran in Lahore. In pursuance to decision dated January 17, 2013 the Law Minister will convene a meeting of the following lawyers: S. M. Zafar, Waseem Sajjad, Aitizaz Ahsan, Farough Naseem, Latif Afridi, Dr Khalid Ranja and Hamayoun Ahsan, to discuss these issues. Prior to the meeting of January 27, the Law Minister, Mr Farooq H Naek, will report the results of this legal consultation to the January 27 meeting.

 

My Lordships!        The above Islamabad Long March Declaration is in Toto conflicting and contrary with the Articles 213 to 221 of the Constitution of Pakistan, 1973 which reads as under:-

“Article: 213 Chief Election Commissioner

213.  Chief Election Commissioner.—(1) There shall be a Chief Election Commissioner (in this Part referred to as the Commissioner), who shall be appointed by the President.

(2) No person shall be appointed to be Commissioner unless he is, or has been, a Judge of the Supreme Court or is, or has been, a Judge of a High Court and is qualified under paragraph (a) of clause (2) of Article 177 to be appointed a Judge of the Supreme Court.

(2A). The Prime Minister shall in consultation with the Leader of the Opposition in the National Assembly, forward three names for appointment of the Commissioner to a Parliamentary Committee for hearing and confirmation of any one person.

(2B) The Parliamentary Committee to be constituted by the Speaker shall comprise fifty percent members from the Treasury Benches and fifty percent from the Opposition Parties, based on their strength in Majlis-e-Shoora (Parliament), to be nominated by the respective Parliamentary Leaders:

Provided that in case there is no consensus between the Prime Minister and the Leader of the Opposition, each shall forward separate lists to the Parliamentary Committee for consideration which may confirm any one name:

Provided further that the total strength of the Parliamentary Committee shall be twelve members out of which one-third shall be from the Senate.

Provided also that when the National Assembly is dissolved and a vacancy occurs in the office of the Chief Election Commissioner, the total membership of the Parliamentary Committee shall consists of the members from the Senate only and the foregoing provisions of this clause shall, mutatis mutandis.apply.

(3)  The Commissioner shall have such powers and functions as are conferred on him by the Constitution and law.

Article: 214 Commissioner’s oath of office

214.  Oath of office.—Before entering upon office, the Commissioner shall make before the Chief Justice of Pakistan, and a member of the Election Commission shall make before the Commissioner, oath in the form set out in the Third Schedule.

 

Article: 215 Term of office of Commissioner

215. Term of office of Commissioner and members.—(1)  The Commissioner and a member shall, subject to this Article, hold office for a term of five years from the day he enters upon his office:

                 Provided that the aforesaid amendment shall be effective after the expiry of current tenure of the present incumbent Commissioner; and        

 (2) The Commissioner or a member shall not be removed from office except in the manner prescribed in Article 209 for the removal from office of a Judge and,  in the application of the Article for the purposes  of this clause, any reference  in that Article to a Judge shall be construed as a reference to the Commissioner or, as the case may be, a member.

 (3) The Commissioner or a member may, by writing under his hand addressed to the President, resign his office.

 

Article: 216 Commissioner not to hold office of profit

216. Commissioner and members not to hold office of profit.—(1)   The Commissioner or a member shall not,—

(a)  hold any other office of profit in the service of Pakistan; or

(b)  occupy any other position carrying the right to remuneration for the rendering of services.

 (2)  A person who has held office as Commissioner or a member shall not hold any office of profit in the service of Pakistan before the expiration of two years after he has ceased to hold that office:

                 Provided that—

                 (a)  this clause shall not be construed as preventing a person who was a Judge of the Supreme Court or of a High Court immediately  before his appointment as Commissioner from resuming his duties as such Judge on the expiration of his term as Commissioner.

 

Article: 217 Acting Commissioner

217. Acting Commissioner.-At any time when,-

(a) the office of Commissioner is vacant, or

(b) the Commissioner is absent or is unable to perform the functions of his office due to any other cause,

a Judge of the Supreme Court nominated by the Chief Justice of Pakistan shall act as Commissioner.

Article: 218 Election Commission

218.  Election Commission.—(1) For the purpose of election to both Houses of Majlis-e-Shoora (Parliament), Provincial Assemblies and for election to such other public offices as may be specified by law, a permanent Election Commission shall be constituted in accordance with this Article.

(2) The Election Commission shall consist of­,—

(a) the Commissioner who shall be the Chairman of the Commission; and

 (b) four members, each of whom has been a Judge of a High Court from each Province, appointed by the President in the manner provided for appointment of the Commissioner in clauses (2A) and (2B) of Article 213.               

(3)  It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.

 

219. Duties of Commission

The Commission shall be charged with the duty of,

(a) Preparing electoral rolls for election to the National Assembly and the Provincial Assemblies, and revising such rolls annually,

(b) organizing and conducting election to the Senate or to fill casual vacancies in a House or a Provincial Assembly; and

(c) appointing Election Tribunals;

(d) the holding of general elections to the National Assembly, Provincial Assemblies and the local governments; and
(e) such other functions as may be specified by an Act of Majlis-e-Shoora (Parliament).Provided that till such time as the members of the Commission are first appointed in accordance with the provisions of paragraph (b) of clause 2 of Article 218 pursuant to the Constitution (Eighteenth Amendment) Act, 2010, and enter upon their office, the Commission shall remain charged with the duties enumerated in paragraphs (a), (b) and (c) of this Article.
   

Article: 220 Executive authorities to assist Commission, etc

220. Executive authorities to assist Commission, etc.-It shall be the duty of all executive authorities in the Federation and in the provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions.

 

Article: 221 Officers and servants

221.  Officers and servants.—Until Majlis-e-Shoora (Parliament) by law otherwise provides, the Election Commission may, with the approval of the President, make rules providing for the appointment by the Election Commission of officers and servants to be employed in connection with the functions of the Election Commission and for their terms and conditions of employment.”

Similarly on 17th January, 2013 vide the so-called agreement  and Islamabad Long March Declaration, it was also un-lawfully and un-constitutional agreed by the treasury benches in complete consensus with Pakistan Awami Tehreek (PAT) will propose names of two honest and impartial persons for appointment as Caretaker Prime Minister.

Whereas under the Constitution, the prime minister, provincial chief ministers and leaders of opposition in the outgoing national and provincial assemblies have the authority to pick up interim setups. In case of their and bipartisan parliamentary committees’ failure to do so, the Election Commission of Pakistan has the power to decide from amongst the nominees sent by the outgoing prime minister, chief ministers and opposition leaders to select the caretakers.

The above declaration is also in conflict and contrary with the Articles 224 and 224A of the Constitution of Pakistan, 1973 which is as under:-

Article: 224 Time of election and bye-election

224.  Time of election and bye-election.—(1) A general election to the National Assembly or a Provincial Assembly shall be held within a period of sixty days immediately following the day on which the term of the Assembly is due to expire, unless the Assembly has been sooner dissolved, and the results of the election shall be declared not later than fourteen days before that day.

                (1A) On dissolution of the Assembly on completion of its term, or in case it is dissolved under Article 58 or Article 112, the President, or the Governor, as the case may be, shall appoint a care­taker Cabinet:

                Provided that the care-taker Prime Minister shall be appointed] by the President in consultation with the Prime Minister and the Leader of the Opposition in the outgoing National Assembly, and a care-taker Chief Minister shall be appointed by the Governor in consultation with the Chief Minister and the Leader of the Opposition in the outgoing Provincial Assembly:

                Provided further that if the Prime Minister or a Chief Minister and their respective Leader of the Opposition do not agree on any person to be appointed as a care-taker Prime Minister or the care-taker Chief Minister, as the case may be, the provisions of Article 224A shall be followed :

                Provided also that the Members of the Federal and Provincial care-taker Cabinets shall be appointed on the advice of the care-taker Prime Minister or the care-taker Chief Minister, as the case may be.

                (IB) Members of the care-taker Cabinets including the care­-taker Prime Minister and the care-taker Chief Minister and their immediate family members shall not be eligible to contest the immediately following elections to such Assemblies.

Explanation.- In this clause “immediate family members” means spouse and children.

(2)  When the National Assembly or a Provincial Assembly is dissolved, a general election to the Assembly shall be held within a period of ninety days after the dissolution, and the results of the election shall be declared not later than fourteen days after the conclusion of the polls.

(3)  An election to fill the seats in the Senate which are to become vacant on the expiration of the term of the members of the Senate shall be held not earlier than thirty days immediately preceding the day on which the vacancies are due to occur.

(4)  When, except by dissolution of the National Assembly or a Provincial Assembly, a seat in any such Assembly has become vacant not later than one hundred and twenty days before the term of that Assembly is due to expire, an election to fill the seat shall be held within sixty days from the occurrence of the vacancy.

(5)  When a seat in the Senate has become vacant, an election to fill the seat shall be held within thirty days from the occurrence of the vacancy.

(6) When a seat reserved for women or non-Muslims in the National Assembly or a Provincial Assembly falls vacant, on account of death, resignation or disqualification of a member, it shall be filled by the next person in order of precedence from the party list of the candidates to be submitted to the Election Commission by the political party whose member has vacated such seat

Provided that if at any time the party list is exhausted, the concerned political party may submit a name for any vacancy which may occur thereafter.

224A. Resolution by Committee or Election Commission.—(1) in case the Prime Minister and the Leader of the Opposition in the outgoing National Assembly do not agree on any person to be appointed as the care-taker Prime Minister, within three days of the dissolution of the National Assembly, they shall forward two nominees each to a Committee to be immediately constituted by the Speaker of the National Assembly, comprising eight members of the outgoing National Assembly, or the Senate, or both, having equal representation from the Treasury and the Opposition, to be nominated by the Prime Minister and the Leader of the Opposition respectively.

(2) In case a Chief Minister and the Leader of the Opposition in the outgoing Provincial Assembly do not agree on any person to be appointed as the care-taker Chief Minister, within three days of the dissolution of that Assembly, they shall forward two nominees each to a Committee to be immediately constituted by the Speaker of the Provincial Assembly, comprising six members of the outgoing Provincial Assembly having equal representation from the Treasury and the Opposition, to be nominated by the Chief Minister and the Leader of the Opposition respectively.

(3) The Committee constituted under clause (1) or (2) shall finalize the name of the care-taker Prime Minister or care-taker Chief Minister, as the case may be, within three days of the referral of the matter to it:

Provided that in case of inability of the Committee to decide the matter in the aforesaid period, the names of the nominees shall be referred to the Election Commission of Pakistan for final decision within two days.

(4) The incumbent Prime Minister and the incumbent Chief Minister shall continue to hold office till appointment of the care-taker Prime Minister and the care-taker Chief Minister, as the case may be.

(5) Notwithstanding anything contained in clauses (1) and (2), if the members of the Opposition are less than five in the Majlis-e-Shoora (Parliament) and less than four in any Provincial Assembly, then all of them shall be members of the Committee mentioned in the aforesaid clauses and the Committee shall be deemed to be duly constituted.

Thirdly –         PURPOSE OF ARTICLE 17 IN CONSTITUTION OF

          THE ISLAMIC REPUBLIC OF PAKISTAN, 1973.

 

The 1973 Constitution is very crucial for the survival of the country. It is the only constitutional document ever to have been promulgated unanimously by each and every member of the National Assembly. Out of 200, 196 voted in favour of it. There were four abstentions, not a single vote of dissent against the passing of the Constitution in 1973.

In the document, the framers of the Constitution provided Article 17 in the Constitution of Pakistan, 1973 which reads as under:-

“17. Freedom of association.
(1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.

 (2)Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan or public order and such law shall provide that where the Federal Government declare that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan or public order, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.

Provided that no political party shall promote sectarian, ethnic, regional hatred or animosity, or be titled or constituted as a militant group or section.(3)Every political party shall account for the source of its funds in accordance with law.

             (4)     Every political party shall, subject to law, hold intra-party

                     election to elect its office-bearers and party leaders.”

The philosophy incorporated in this Article is basically based on the fundamental principle of democracy and as per this Article only the political parties as registered under this Article of 17 are allowed to do any lawful protest, strike, procession or long March for the acceptance of their political demands and on the interpretation of Article 17, there are quite a large numbers of judgment of Apex Court wherein a clear line has been drawn to differentiate between an association and a political party.

Minhaj-ul-Quran (Respondent No. 5) is not a political party but an NGO as already described above. Minhaj-ul-Quran is of course one of the largest non-political, non-sectarian and non-governmental organizations in the world, which was founded in 1980 and according to its constitution, the Minhaj-ul-Quran cannot participate in politics nor it can held a procession, nor it can give call for long march or strike. Furthermore, no NGO can interfere in state affairs or use public for its political interest and whereas Dr. Tahir-ul-Qadri (Respondent No. 4) is the Patron-in-Chief of Minhaj-ul-Quran and so his call of long March to Islamabad on 14th January 2013 using his NGO Minhaj-ul-Quran purely for political purpose is not against the very spirit of the Article 17 of the Constitution but also unlawful and un-ethical too on his part for using a religious NGO Minhaj-ul-Quran for his unknown political hidden agenda, which in our party opinion is on the vested interest of his master better known to him but whatever it is, this long march followed by Islamabad Long March Declaration is certainly a conspiracy against the neutral Election Commission of Pakistan, Constitution of Pakistan, 1973, democracy and rule of law.

         That even otherwise, no association or union formed or operating under Clause (1) of Article 17 can engage in any political activity as mentioned in Clause (2) of the same Article or can sign any agreement or declaration which contained political agenda and demands and that too which are against the Constitution of Pakistan.

Fourthly    The Respondent No. 4 (Dr. Tahir-ul-Qadri) from October, 2012 to the end of long march on 17th January, 2013 has done all the activities on the platform of Minhaj-ul-Quran (Respondent No. 5). So much so, that he has not given the call of long March to Islamabad on 14th January, 2013 on the platform of the Political Party named Pakistan Awami Tehreek (Respondent No. 3), which he formed on 14th of May, 1989 and was his first President but as and when he became the Canadian National, he ceases to be President of Pakistan Awami Tehreek under Article 5 of the Political Parties Order, 2002.

It would not be out of place to mention here that Dr. Tahir-ul-Qadri on one hand has not given any call of long March to Islamabad on the 14th of January, 2013 on the platform of  Pakistan Awami Tehreek (Respondent No. 3) but on the other hand he surprisingly signed the so-called Islamabad Long March Declaration as the Chairman of the Pakistan Awami Tehreek which itself shows how clever he is, as he knows that an NGO like Minhaj-ul-Quran cannot sign any political agreement and declaration like Islamabad Long March Declaration. Even if it is assumed that Dr. Qadri signed it in both capacity of Minhaj-ul-Quran and PAT, the void agreement ab-initio does not come lawful one.

Fifthly       Dr. Tahir-ul-Qadri may have pristine vision to reform the electoral system that may sound convincing to some taking his dream on the face of it, but his several assertions, which he made in his address at the Minar-e-Pakistan public meeting and during long march clashes with the Constitution of Pakistan, 1973 that he wants to adhere to. At various times, Dr. Tahir-ul-Qadri was self-contradictory. Whatever the case be, our submission is that the Islamabad Long March Declaration is against the basic and fundamental principles of the Constitution of Pakistan, 1973 and the Representation of the Peoples Act, 1976.

Seventhly –  Whereas, the call of long march to Islamabad on 14th January 2013 of Dr. Tahir-ul-Qadri (Respondent No. 4) on the platform of an NGO Minhaj-ul-Quran (Respondent No. 5) for his unknown political hidden agenda, which in our party opinion is on the vested interest of his master better known to him but whatever it is, this long march followed by Islamabad Long March Declaration is certainly a conspiracy against the neutral Election Commission of Pakistan, Constitution of Pakistan, 1973, democracy and rule of law on the so-called programme of election reforms has affected the fundamental rights of not an individual but whole of downtrodden masses and public at large is violated. So much so, the fundamental right of not only Communist Party of Pakistan (CPP) but in fact it infringes the fundamental rights of all others political parties in view of 11 members bench of Supreme Court headed by then Chief Justice of Pakistan Abdul Haleem Khan in a famous case of Miss Benazir Bhutto vs Federation of Pakistan etc. (PLD 1988 SC 416, 514) in which it was held “Article 17 (2) provides a basic guarantee to a citizen against usurpation of his will to freely participate in the affairs and governing of Pakistan through political activity relation thereto……”

Eighthly –     To sum up all the above submissions, the petitioner in nut-shell submits as under:-

1.       That the Respondents No.1 to 5 has reportedly signed an agreement called the Islamabad Long March Declaration wherein:

a.       The time period for the holding of general election to the National Assembly under Article 224 has been extended from the given 60-days to 90-days in clear violation of Clause (1) of that Article.

b.       That the agreement does mention March 16 as the “due date” of expiry of the term of the National Assembly but without any apparent reason it has supplemented another 30-days to the administration by caretaker cabinet.

c.       That the Prime Minister has also reportedly committed to expand the time period for scrutiny of nominations to one month as against the period laid down in the Representation of the People Act, 1976.

2.       That the proclaimed expansion of the time periods laid down in Article 224 and the Representation of the People Act, 1976 is a clear violation of the Constitution and the law.

3.       That the Federation has also given an undertaking to PAT about Articles 62 and 63 which, in the eyes of the Constitution, are the domain of the Chief Election Commissioner and the Election Commission and no government can do anything about those Articles.

4.       That the Prime Minister has also agreed to hold another round of negotiations with the Respondent Canadian Citizen at the office of an organization which has no constitutional or legal status for taking part in electoral process or overseeing the election as an observer.

5.       That the intended meeting, as announced by the agreement, is to decide re-composition of the Election Commission.

6.       That the Election Commission cannot be reconstituted merely to appease a group of voters of the Punjab Province.

7.       That the Federal Law Minister, who is paid by the public exchequer, is to hold consultations with no less than eight advocates of the Supreme Court to formulate the re-composition of the Election Commission, outside Part VIII of the Constitution.

8.       That under Article 91, the cabinet is responsible to the Senate and the National Assembly and not to any political or non-political body outside the Parliament.

9.       That the agreement although signed by a few Ministers is not approved by the Federal Cabinet.

10.     That the Constitution does not allow any referendum on the streets for amending any provision of the Constitution or altering or repealing any law in force.

PRAYER IN PETITION:-

1.        It is, therefore, respectfully and graciously prayed that the learned Honourable Election Commission of Pakistan may kindly declare and provide the following remedies in the interest of justice.

 

Firstly – to declare that Dr. Tahir-ul-Qadri is not the Chairman of the Pakistan Awami Tehreek, as he is disqualified to be an office bearer of PAT under Article 5 of the Political Parties Order, 2002 being a Canadian national;

 

Secondly – to declare that Pakistan Awami Tehreek at the present moment is not a registered political party with the Election Commission of Pakistan as it has not fulfilled the requirements of Article 17 (3) (4) of the Constitution of Pakistan, 1973 and Articles 12 and 13 of the Political Parties Order, 2002 and Rule 7 of the Political Parties Rules, 2002;

 

Thirdly – the directions may kindly be given to the Respondents No. 1 and 2 to refrain from any negotiations with the Respondents No. 3 to 5 in any capacity until the ruling on this petition.

 

Fourthly – to declare that the so-called Islamabad Long March Declaration is of no legal effect in relation to the forthcoming elections and no organ of the State shall alter its prescribed course of action and the Respondents No. 1 to 5 be also refrained not to proceed further in this context or alternatively, an appropriate order as deemed fit in the current situation and scenario may kindly be passed and also direct the Respondents to do anything, they are required by law to do.

 

2.         Any other remedy for the supremacy of the Constitution and the law, 
which this Honourable Election Commission deems fit and appropriate in the 
facts and circumstances of the case, may also be granted and this petition 
may kindly be accepted. This prayer is made in the interest of justice.


                               Drawn up and filed by:

Sig/-

Dated:- 24th January, 2013.   (Engineer Jameel Ahmad Malik)

                                                               Petitioner-in-Person,

                                                               Chairman of Communist Party,

                                                               Communist Party Secretariat,

                                                               1426-Fateh Jang Chowk,

                                                               Attock Cantonment.         
                                                              Tel: 057-2611426
                                                                Fax: 057-2612591
                                                                Mob: 0300-9543331
                                                                            And
                                                                Email: cpp@cpp.net.pk
                                                                Web:   www.cpp.net.pk

LIST OF BOOKS:
1.        The Constitution of the Islamic Republic of Pakistan, 1973.
2.        Societies Registration Act, 1860.
3.        Political Parties Order, 2002.
4.        Political Parties Rules, 2002.
5.        PLD 1988 SC 719
6.        PLD 2005 SC 719
7.        1999 SCMR 382
8.        PLD 2000 SC 84
9.         PLD 2006 SC 697
Certificate:-
            Certified that this is the first petition in the Election 
Commission of Pakistan on the subject.

          Sig/-

(Engineer Jameel Ahmad Malik)

 Petitioner-in-Person.