IN THE SUPREME COURT OF PAKISTAN, ISLAMABAD.
Constitutional Petition No. ____ of 2011.
Engineer Jameel Ahmad Malik,
s/o Late Malik Abdul Muqsit, Advocate,
Bhuboo Jee Haveeli,
Village Shamas Abad,
Tehsil Hazro, District Attock. .........Petitioner
1. FEDERATION OF PAKISTAN THROUGH THE SECRETARY, MINISTRY OF DEFENCE, CIVIL SECRETARIAT NO. II, RAWALPINDI.
2. LT. GENERAL AHMAD SHUJA PASHA, DIRECTOR GENERAL, INTER-SERVICES INTELLIGENCE, ISI HEADQUARTERS, ISLAMABAD.
3. OMAR WARAICH, JOURNALIST AND CORRESPONDENT OF THE INDEPENDENT AND TIME, ISLAMABAD PRESS CLUB, ISLAMABAD.
4. HAMID MIR, TV ANCHOR AND JOURNALIST, GEO TV CHANNEL, ISLAMABAD.
A Constitutional Petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan 1973, firstly for the enforcement of Fundamental Right enshrined in Article 25 of the Constitution and secondly the continuance of the Respondent No. 2 as the Director General of the Inter-Services Intelligence (ISI) be declared to be direct contravention of the Article 244 of the Constitution of Pakistan, 1973 and the Pakistan Army Act, 1952.
That the aforesaid Constitutional Petition under the Article 184(3) of the Constitution of Pakistan, 1973 read with the Pakistan Army Act, 1952 and the Article 244 of the Constitution of Pakistan, 1973 is being filed by the petitioner on the points of law, facts and grounds, as narrated, herein as under:-
POINTS OF LAW:
A. Whether the specific ruling concerning the Government employee as recorded by the Full Bench of Supreme Court in its Para No. 21 of the judgment reported as 2004 SCMR 164 and uphold by Larger Bench of five Judges in Civil Review Petition No. 145 of 2003 has any effect and implications on Government employee like DG (ISI) Lt. General Ahmad Shuja Pasha (Respondent No. 2) or not?
B. Whether the Lt. General Ahmad Shuja Pasha being DG (ISI) is barred to indulge in such like activities under the Pakistan Army Act, 1952 and Article 244 of the Constitution of Pakistan, 1973 as was disclosed by Omar Waraich in the Independent newspaper, Hamid Mir in Capital Talk and Mansoor Ijaz in Memogate Scandal?
C. Whether the Lt. General Ahmad Shuja Pasha in the capacity of DG (ISI) has any lawful authority that he had secretly sought and got permission from some senior Arab leaders to oust President Asif Ali Zardari, who is incidentally his Supreme Commander or this action of DG (ISI) would be treated as a severe violation of Article 244 of the Constitution and the Pakistan Army Act, 1952 and the same is punishable under the law?
D. Whether the petitioner, who being citizen of Pakistan by birth can be discriminated in his own country by the Apex Court in the presence of Article 4 and 25 of the Constitution of Pakistan vis-à-vis Lt. General Ahmad Shuja Pasha, DG (ISI)?
E. What is the correct interpretation of Article 25 of the Constitution of Pakistan, 1973?
FACTS OF THE CONSTITUTIONAL PETITION:
1. That the petitioner, who is permanent resident of Village Shamas Abad in Ilaqa Chaach, Tehsil Hazro, District Attock and is a citizen of Pakistan by birth. He remained twice elected President of POFs Officers Association from 1992 to 1996 and Secretary General of the Abdalians Association (Cadet College Hasan Abdal Old Boys Association) from 1999 to 2002. He is a political worker and presently is the Central Chairman of the Communist Party of Pakistan (CPP) and also a law abiding citizen with the dominant object of enforcement of the Constitution of Pakistan, 1973 through public interest litigations.
2. That the aforesaid petitioner is deeply concerned about the top story as published on the 13th of December, 2011 by a well known Journalist Omar Waraich in the newspaper of ‘The Independent’, London under the caption ‘Pakistan’s “Memogate”: Was there ever going to be a coup?’ And the same story reported in brief by the “The Economic Times” under the head lines “ISI chief had got nod to sack Asif Ali Zardari: Mansoor Ijaz” and which reads as under:-
“ISLAMABAD: Pakistan’s powerful spy agency chief, General Shuja Pasha, had sought and got permission from senior Arab leaders to oust President Asif Ali Zardari, said Pakistani-American businessman Mansoor Ijaz while confirming the claim in a blog in a British daily.
Omar Waraich in his blog on The Independent claimed that Inter-Services Intelligence (ISI) chief Gen Shuja Pasha had sought and “received permission from senior Arab leaders to sack Z” (President Zardari), reported Geo News.
The blog said: “`I was just informed by senior US intel,’ Ijaz writes in a message on May 10, `that GD-SII Mr P asked for, and received permission, from senior Arab leaders a few days ago to sack Z. For what its worth’.” GD-SII was an anagram for DG-ISI.
Mansoor Ijaz, who had revealed the secret memo to Washington that said Zardari had feared a military coup after US commandos killed Al Qaeda leader Osama bin Laden in Abbottabad May 2, told Geo News: “This information has been on the record now for the better part of six weeks.”
Ijaz said Pakistan‘s then envoy to US Hussain Haqqani had approached him May 9 and he then decided to check the veracity of what Haqqani told him.
Mansoor Ijaz claimed that General Pasha had travelled throughout the Arab world and other countries after the May 2 raid.
“In many places he (ISI chief), in fact, explained that there was a lot of stress in the system because people could not understand who the blame should be pinned on for the fact that (Osama) bin Laden was on their soil,” said Mansoor Ijaz.
The secret memo to Washington had stunned Pakistan. The abrupt departure of President Zardari over a heart condition to Dubai Dec 6 had sparked coup rumours. There have been conflicting reports of his health, with one saying he suffered a minor attack and another that he had a stroke that caused bleeding in the brain and facial paralysis.
The president has been discharged from the Dubai hospital and shifted to his residence, authorities said Wednesday night.”
My Lordships! Copies of the aforesaid news are placed at the Annexure “A” and “B” respectively for kind perusal and record.
3. That on December 14, the Respondent No. 4 (Hamid Mir) in his live programme of Capital Talk with Khawaja Asif and Babar Ghori had also spoken with Respondent No. 3 (Omar Waraich) and Omar Waraich confirmed his reporting of December 13, which he made in ‘The Independent’ London. He also confirmed his conversations with Mansoor Ijaz and according to which the Respondent No. 2 (Lt. Gen. Pasha) had sought and “received permission from senior Arab leaders to sack President Zardari.” Copy of this live programme is enclosed at Annexure “C” with this petition.
4. That as and when this news item against Lt. General Ahmad Shuja Pasha (Respondent No. 2) that he had sought and “received permission from senior Arab leaders to sack President Zardari” has appeared in the various newspapers, TVs news in and abroad but till date, this allegation was not denied yet by the Respondent No. 2 himself (Lt. Gen. Pasha) nor by the ISPR and as per various Supreme Court of Pakistan judgments reported in the PLD 1998 SC 388 (Mohtarma Benazir Bhutto versus President of Pakistan and others), which in nut-shell states that “Facts given in newspapers having not been denied, would be considered as undisputed facts” and if any such news item is not denied, the same can be used against him as piece of evidence later on.
Even otherwise, if we agree that Mansoor Ejaz was correct in Memogate case then what about his opinion concerning this issue that ISI Chief Lt. General Ahmad Shuja Pasha got consent from some Arab states rulers for the removal of President Zardari. On this plea, a Member of Parliament Bushra Gohar of Awami National Party (ANP) has demanded that ISI Chief should immediately resign as in her opinion; DG (ISI) has hatched a conspiracy against an elected government and the President. In this context, it would not be out of place to mention here that the Nine Member Bench of the Supreme Court headed by the CJP would hear Memogate case on December 19, 2011.
5. My Lordships! Now this disclosure of Mansoor Ijaz and Omar Wariah that Pakistan’s powerful spy agency Chief, General Shuja Pasha, had sought and got permission from some senior Arab leaders to oust President Asif Ali Zardari, is alarming and shocking news for all our nations, simply because of this reasons that it shows involvement of Respondent No. 2 and Army in politics which is contrary to his oath, which he has taken under Article 244 of the Constitution of Pakistan, 1973.
6. Pakistanis expect from the Pakistan Army and its Generals to be a model institution from every point of view. They like to see this institution best professional army in the world. It is not possible until unless Pakistan army conducts its affairs first according to Constitution of Pakistan and then according to its own Rules of Business. Four Pakistani generals openly defied the laws of Pakistan while they illegally took over Pakistan. Many more engaged in political activities violating their oaths and discipline of their own institution. General Musharraf was the fourth such general who violated the Constitution of Pakistan and illegally took control over Pakistan.
Armed forces of Pakistan will remain open and become target of harsh criticism due to the illegal acts of their Generals. If armed forces of Pakistan want to remain above criticism, they first need to learn to remain within their constitutional and legal limits. If an army general like Respondent No. 2 uses armed forces of Pakistan to oust the President of Pakistan, who is also his Supreme Commander and in these circumstances the Respondent No. 2 and the armed forces of Pakistan cannot remain free from criticism. For 63-64 years, few politically motivated generals have used armed forces of Pakistan as a base to carry out their personal political agenda. It is the responsibility of the armed forces of Pakistan to come up with a mechanism to keep check on such rogue generals. Until they take care of this internal problem, the people will continue criticizing them. Otherwise, the rule of the day is: the people of Pakistan will only respect the army as much it respects them. They will also respect the army as much it respects their constitution and their political institution.
7. That Lt. General Pasha being Director General of ISI (Respondent No. 2) is a Government employee by all means and his contention to oust and dismiss President Zardari, who is his Supreme Commander, clearly violates the Pakistan Army Act, 1952 and the Article 244 of the Constitution of Pakistan, 1973 and acting in utter bad faith and in breach of the oath taken by him under Article 244 of the Constitution of Islamic Republic of Pakistan, 1973 which states “to up-hold provisions of the Constitution” and “will not engage myself in any political activities whatsoever.”
8. Keeping in view, what has been stated above, the Respondents No. 1 and 2 badly failed to perform their functions and duties as entrusted to them under the Constitution of Pakistan, 1973 and in the interest of justice, a time has now come wherein the Apex Court may kindly give a direction to Respondent No. 1 to immediately remove the Respondent No. 2 from the office of DG (ISI) or alternatively, an appropriate orders which deemed fit in the current scenario for resolving this controversy forever may kindly be passed by Apex Court, interalia on the following genuine
9. Accordingly, this constitutional petition is filed on the following among other genuine grounds, interalia:-
Firstly – That the Constitution of Pakistan like any other Constitution of the World has also granted the Fundamental Rights to its citizens. The Fundamental Rights as guaranteed to the citizen of Pakistan are enshrined and enumerated in Part II, Chapter I consisting from Article 8 to Article 28. That out of above referred Articles; the Article 25 is also very relevant, which reads as under:-
“25. Equality of citizens. – (1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.”
My Lordships! The action of General Pasha (Respondent No. 2) is hit by the golden principles of law, which were enunciated by the Supreme Court in its Para No. 21 of the judgment titled ‘Engineer Jameel Ahmad Malik versus Government of Pakistan and others’ which was reported as 2004 SCMR 164 and which reads as under:-
“21. Taking part in politics, participation in the functions of political parties, supporting the student’s agitations, discussing politics in offices, clubs, restaurants and other public places are prohibited for Government servants and action can be taken against defaulting Government servants under the Rules of 1964 and Government Servants (E & D) Rules, 1973. To discuss about the latest happening in the New World Order and geopolitical situation are not within the realm of the permissible limits of freedom of speech/expression for a Government servant. These are the issues to be addressed by the political parties and that too in a constructive manner.”
The Supreme Court hold the above views after considering the material placed against the aforesaid petitioner at the Annexure “D”, “E” and “F”. The Annexure “D” and Annexure “E” were the English and Urdu letters dated 31st October 1991 of the petitioner written to the members of the POFs Officers Association during the election campaign of the POFs Officers Association whereas Annexure “F” is the press conference of the petitioner, which was addressed in the capacity of a Presidential candidate of POFs Officers Association and was published in English daily “The Muslim” Islamabad dated 20-11-1991 whereas the action of DG (ISI) Lt. General Pasha (Respondent No. 2), who want to oust his Supreme Commander is an act of mutiny and which was more severe in nature as comparison to the charges of the petitioner but surprisingly the Respondent No. 1 have taken no action against DG (ISI) till by now for the reason best known to them.
That in this context, it would not be out of place to mention here that even the aforesaid petitioner filed the Civil Review Petition bearing No. 145 of 2003 and a larger Bench consisting of five judges of Supreme Court namely Mr. Justice Sardar Muhammad Raza Khan, Mr. Justice Nasir-ul-Mulk, Mr. Justice Ch. Ijaz Ahmed, Mr. Justice Syed Jamshed Ali and Mr. Justice Hamid Ali Mirza was constituted, which heard the petitioner in quite length on the 15th of March, 2007 but dismissed the review petition meaning thereby that the larger Bench also confirmed the judgment of the Full Bench in which it was held that the Government employees should neither take part in politics nor can even addresses a press conference in any capacity.
Secondly:- My Lordships! It is a great injustice that the Government employees who are not holding guns in their hands are not even allowed to carry out their Association activities as per judgment 2004 SCMR 164 whereas the Government employee like Lt. General Ahmad Shuja Pasha, who is holding gun in his hand and that too on public exchequer is allowed to take part in politics and to oust his Supreme Commander in contrary to the Article 244 of the Constitution and the principles as enumerated in Para No. 21 of the judgment reported as 2004 SCMR 164. This discrimination between the petitioner and other government employees vis-à-vis Director General of ISI, Lt. General Ahmad Shuja Pasha (who too being a Government employee) is certainly hit by Article 25 of the Constitution of Pakistan, 1973.
Thirdly:- Furthermore, the Supreme Court of Pakistan has to protect the breach of any of the fundamental rights of the ordinary citizen of Pakistan like the petitioner and the petitioner with open heart accepted the decision of the Supreme Court after his review petition was dismissed by the larger bench of the five judges but when the petitioner observe and sees that how badly he is being discriminated in his own country as compared with a Government employee and serving General in uniform like Ahmad Shuja Pasha, then he thinks that Article 25, which is mentioned in the Constitution of Pakistan is only applicable to the Civil Servants like the petitioner and this Article 25 has no worth for those Government employee, who are in Army and in uniform like General Ahmad Shuja Pasha (Respondent No. 2).
My Lordships! The justice, Islamic principles, universal declaration of human rights and Constitution of Pakistan 1973, otherwise, demands that all citizens irrespective of any status should be treated alike under Article 4 and there should be no discrimination under Article 25 of the Constitution of Pakistan, 1973. A question arises to every mind that if the petitioner, who was the elected President of the POFs Officer Association was not allowed to function his association activities than how General Ahmad Shuja Pasha (Respondent No. 2) can be exempted from the effect and implications of the Supreme Court of Pakistan Judgment reported as 2004 SCMR 164 which barred all the Government servants not to take part in politics.
My Lordships! Is Director General of ISI (Respondent No. 2) is not a Government employee? In fact it is the worst form of discrimination among the citizens of Islamic Republic of Pakistan and it is the right and fit case where the question of public importance with reference to the enforcement of the Fundamental Rights as conferred in Article 25 of Chapter I of Part II is involved.
Fourthly – That Lt. General Ahmad Shuja Pasha (Respondent No. 2) is also a Government employee like the petitioner was. The only difference is that the service of the petitioner was governed by the Civil Servants Act, 1973 and the service of the Respondent No. 2 in the capacity of DG (ISI) is being governed by Pakistan Army Act of 1952. Civil Servants Act, 1973 and Pakistan Army Act of 1952 both prohibits and bar its employees to take part in politics.
Fifthly – That the findings and observations as recorded by the Full Bench in its Para No. 21 of the Supreme Court judgment reported in the 2004 SCMR 164 and uphold in Civil Review Petition No. 145 of 2003 on 15th March 2007 by the larger Bench of the Supreme Court consisting of five judges is not only attracted and related to the petitioner’s case but these findings and observations are also now bindings on all Government employees including Lt. General Ahmad Shuja Pasha (Respondent No. 2), as the findings of the Supreme Court on this aspect are of general nature and it applies to all Government employees in Civil as well as in Military Bureaucracy.
Sixthly – That out of sixty four years since independence, our country was ruled by Army for more than 35 years. It would not be out of place to mention here that Pakistan was not created by Army and Army doesn’t have any role in the creation of Pakistan. The petitioner himself heard the interview of Air Marshal (Retd) Asghar Khan on GEO TV in which he quoted the saying of the Father of Nation Mohammad Ali Jinnah as “Armed Forces have to obey the orders of Politicians and never think of ruling the Government.” Air Marshal (Retd) Asghar Khan was present when Quaid-e-Azam said the above remarks.
My Lordships! A time has now come in the history of the Supreme Court of Pakistan after their historic judgments “Sindh High Court Bar Association through its Secretary (Constitutional Petition No. 8 of 2009) and Nadeem Ahmed Advocate (Constitutional Petition No. 8 of 2009) Versus Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others, release of a number of citizens unlawfully and illegally detained by ISI or MI or other government secret agencies for a number of years without any trial (Forced Disappearance Cases) and likewise many other similar judgments, which clearly predicts without any shadow of doubt that the “Law of Necessity” is no more the law of the land now and the Nation as a whole is now waiting that how Supreme Court would now interpret the Articles 4, 25, and 244 of the Constitution of Pakistan, 1973 and Pakistan Army Act of 1952 concerning the conduct of Army Officers like that of Respondent No. 2 and it is the correct and right time for the judiciary and Apex Court to kindly decide all the questions of law as posed by the petitioner in the instant constitutional petition.
Seventhly – That obedience to the Constitution precedes submission to laws made there under and no Government, Federal or Provincial, can enforce a law without first fulfilling her own Constitutional obligations. The petitioner believes beyond any shadow of doubt that Lt. General Ahmad Shuja Pasha (Respondent No. 2) has bypassed the Constitution of their own convenience. The Holy Prophet PBUH says, “The highest kind of Jehad is to speak upon truth in the face of Sultan that deviates from right path”.
In short, any action under any law would not be in accordance with the Constitution unless this Court has spelt out the Articles to enforce the Fundamental Rights.
Eighthly – That the appellant craves permission to argue any other point of law at the time of arguments.
That pending decision of this Constitutional Petition, the Respondent No. 1, who has appointed the Respondent No. 2 as DG (ISI) may kindly be directed in the interest of justice to immediately suspend the Respondent No. 2 till the disposal of this petition by this Honourable Supreme Court.
PRAYER IN PETITION:-
In view of the above, the petitioner very graciously and respectfully prayed this Honourable Court to provide the following remedies:
FIRSTLY – That in view of the legal and constitutional points raised as above, it is graciously prayed that the Honourable Supreme Court of Pakistan may kindly implement the general observations as recorded in its Para No. 21 of the judgment of the Supreme Court of Pakistan as reported in 2004 SCMR 164 on serving Lt. General Ahmad Shuja Pasha too in the interest of justice and enforce Article 25 as enshrined in the Constitution of Pakistan, 1973 and SECONDLY – it is also humbly and graciously prayed that the continuance of Lt. General Ahmad Shuja Pasha as the Director General of Inter Services Intelligence (ISI) be declared to be direct contravention of the Article 244 of the Constitution of Pakistan, 1973 and Pakistan Army Act, 1952 and the Respondent No. 2 be removed from the post of DG (ISI) accordingly.
Any other remedy for the supremacy of the Constitution and the law, which this Honourable Court deems fit and appropriate in the facts and circumstances of the case, may also be granted and this petition may kindly be accepted with costs.
This prayer is made in the interest of justice.
Drawn up and filed by: Sig/-
Dated:- 19th December, 2011. (Engineer Jameel Ahmad Malik)
Village Shamas Abad,
LIST OF BOOKS:
1. The Constitution of the Islamic Republic of Pakistan, 1973.
2. Pakistan Army Act, 1952.
3. 2004 SCMR 164
4. PLD 2005 SC 719.
5. PLD 1988 SC 416
6. 1999 SCMR 382
7. PLD 2000 SC 84
8. PLD 2006 SC 697
Certified that this is the first petition in the Supreme Court of Pakistan on the subject.
(Engineer Jameel Ahmad Malik)