Original Articles

Supreme Court’s Oath to Provide Justice – A rare example – By Ali Asad

 

A rare example of respecting oath of a judge and love of doing justice by the Supreme Court of Pakistan

On the last day of hearing on 18th amendment, a number of Judges in the bench expressed their love of their oath on the constitution of Pakistan. Let us take an example to judge their commitment with the Constitution.

Mr. Shahid Orakzai a journalist/lawyer has been knocking at the doors of our independent judiciary. Unfortunately he has chosen a wrong respondent. Had the respondent been Zardari Mr. Orakzai would have won the case. But the respondent is Shahbaz Sharif and hence the case is lingering on and on. The case involves a very serious matter i.e “is Shahbaz Sharif a member of Punjab Assembly or not?” The matter is to be view under article 223 of the Constitution of Pakistan. Let us first read the said article:

“ 223. Bar against double membership.
(1) No person shall, at the same time, be a member of,
(a) both Houses; or
(b) a House and a Provincial Assembly; or
(c) the Assemblies of two or more Provinces; or
(d) a House or a Provincial Assembly in respect of more than one seat.
(2) Nothing in clause (1) shall prevent a person from being a candidate for two or more seats at the same time, whether in the same body or in different bodies, but if he is elected to more than one seat he shall, within a period of thirty days after the declaration of the result for the last such seat, resign all but one of his seats, and if he does not so resign, all the seats to which he has been elected shall become vacant at the expiration of the said period of thirty days except the seat to which he has been elected last or, if he has been elected to more than one seat on the same day, the seat for election to which his nomination was filed last.
Explanation:- In this clause, “body” means either House or a Provincial Assembly.
(3) A person to whom clause (2) applies shall not take a seat in either House or the Provincial Assembly to which he has been elected until he has resigned all but one of his seats.
(4) Subject to clause (2), if a member of either House or of a Provincial Assembly becomes a candidate for a second seat which, in accordance with clause (1), he may not hold concurrently with his first seat, then his first seat shall become vacant as soon as he is elected to the second seat.”

Mr. Shahid Orakzai has taken the plea that Mr. Shahbaz Sharif had been a member of Punjab Assembly from PP-48( Bhakkar ). He further contested on PP-10 and again won that seat as well. In accordance with article 223 as soon as result on PP-10 was announced Mr. Shahbaz Sharif ceased to be member from PP-48. Afterwards Shahbaz Sharif decided to resign from PP-10 and so he is no more member of Punjab Assembly. The case was being heard by a division bench of Supreme Court under Mr. Javed Iqbal JJ. But the hearing has been put of sine die.
Let us now examine the case on the basis of facts. I hereby reproduce the relevant notification of The Election Commission of Pakistan about PP-10. Viewing these notifications, I am of the opinion that it is an open n shut case which does not require any interpretation from the judges.

ELECTION COMMISSION OF PAKISTAN

http://ecp.gov.pk/content/press/June2008/3.htm

********

PRESS RELEASE

                  Islamabad the  3rd June, 2008.-       The Chief Election Commissioner of Pakistan has published the name of the candidate returned to the Provincial Assembly of Punjab as a result of un-contested Bye-Election from the under mentioned Constituency :

No. and Name of Constituency Name Father’s Name Address
1 2 3 4
       
PP-48 Bhakkar-II Mian Muhammad Shahbaz Sharif Mian Muhammad Sharif 180-181-H Model Town, Lahore.

 

ELECTION COMMISSION OF PAKISTAN

http://ecp.gov.pk/content/press/June2008/21a.htm

********

PRESS RELEASE

                   Islamabad the 21st June, 2008.-   The Chief Election Commissioner of Pakistan has published the name of the candidate returned to the Provincial Assembly of the Punjab as a result of Un-contested Bye-Election from the under mentioned Constituency: 

No. and Name of Constituency Name Father’s Name Address
1 2 3 4
       
PP-10

Rawalpindi-X

 Mian Muhammad Shahbaz Sharif Mian Muhammad Sharif 180-181-H

Model Town, Lahore.

 

ELECTION COMMISSION OF PAKISTAN

http://ecp.gov.pk/content/press/July2008/4b.htm

PRESS RELEASE

Islamabad, the 4th July, 2008.- The Chief Election Commissioner has called upon the electors of the Constituency No. PP-10 Rawalpindi-X of Provincial Assembly of the Punjab, to elect a Member to fill the seat from the said Constituency, which has become vacant due to the resignation tendered by Mian Muhammad Shahbaz Sharif, Member of the Provincial Assembly, Punjab and specifies in relation thereto, the following dates for Bye-Election:

 PROGRAMME

 

Sl.No. EVENTS DATE
     
(1) Dates for filing of nomination papers with the Returning Officer by the candidates 07-7-2008

to

12-7-2008

(2) Dates for Scrutiny of nomination papers by the Returning Officer 14-7-2008

to

16-7-2008

(3) Last date for filing of appeals against decisions of the Returning Officer rejecting/accepting the nomination papers  

19-7-2008

(4)  

Last date for deciding appeals by the Tribunal

24-7-2008
(5)  

Last date for withdrawal of candidature

25-7-2008
(6)  

Publication of revised list of candidates

26-7-2008
(7)
 
Polling day

 

11-8-2008

 

ELECTION COMMISSION OF PAKISTAN

http://ecp.gov.pk/content/press/August2008/16.htm

PRESS RELEASE

                      

               

Islamabad the 16th  August, 2008 :-        The Chief Election Commissioner of Pakistan has published the name of the candidate returned to the Provincial Assembly of the Punjab as a result of Bye-Election from the under mentioned Constituency:

No. and Name of Constituency Name Father’s Name Address
1 2 3 4
       
PP-10 Rawalpindi –X Malik Iftikhar Ahmed Malik Ghulam Sarwar H. No. 534, Main Baazar Mohallah Nasirabad, Rawalpindi. 

 

2. The result shall be subject to the final decision of Writ Petitions No. 9255/2008, 9254/2008, 7606/2008, 7606/2008 titled “Shahid Orakzai Vs Kanwar Muhammad Dilshad etc.”

These notifications clearly show that Shahbaz Sharif had contested the election on PP-10 while he was already member of the assembly from PP-42 and the notification of his winning PP-10 was issued on June 21, 2008 and in accordance with article 223, PP-48 fell vacant. His choice of retaining PP-48 is unconstitutional.
I wonder what the Independent Judiciary is doing in the case. Have they forgotten their oath of safeguarding the constitution?

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Ahmed Iqbalabadi

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