Court has no authority to replace a political system: Justice Bandial

It is PM’s discretion to refer referendum matter to Parliament: Justice Munib

It is a political question. How can court intervene? asks Justice Mansoor 

ISLAMABAD   -  The Supreme Court of Pakistan Monday turned down the petition seeking directions to order the Prime Minister to hold a referendum in the country for a presidential form of government.

A three-member bench of the apex court headed by Justice Umar Ata Bandial conducted hearing of the petitions of Ahmed Raza Khan Kasuri, Dr Sadiq Ali, Tahir Aziz Khan and Hafeez-ur-Rehman Chaudhry.

They had filed the identical constitutional petitions under Article 184(3) of the Constitution urging the apex court to direct the Prime Minister [Imran Khan] to hold a referendum under Article 48(6) of the Constitution to know the public opinion on the presidential form of government in the country.

During the hearing, Justice Munib Akhtar questioned that on what basis the Supreme Court can order the PM to hold the referendum. He said, “There is no clause in the constitution, which mandates the Supreme court to issue instructions to the prime minister for a referendum for the presidential form of government.”

Justice Syed Mansoor Ali Shah said, “It is a political question, how the court could intervene in it.” He further said, “Has someone raised this issue in the Parliament.”

Justice Munib asked that how can a single person demand changing the parliamentary system of governance. The court added that it is prime minister’s discretion to refer the matter for a referendum on the issue to the joint sitting of the Parliament.

Justice Munib said that the experience of referendums and the presidential system have always been bad for the country. He said that three times there was a presidential system in Pakistan. In 1984 referendum it was said that if people want Islam then I (Gen Zia-ul-Haq) will be president. Similarly, in 2002 as a result of the referendum he (Gen Musharraf) became president.

The court said that Pakistan was divided due to the 1962 presidential system. It noted that General Ayub Khan after the military coup held a referendum in 1960 and became president.

Justice Bandial said that the presidential system had damaged the country and added that they do not like to repeat 1958 events. He continued that let the Court solve people’s issues, therefore do not involve us in political matters.

Justice Munib said that in the 1973 Constitution the nation opted for a parliamentary system. He questioned that what guarantee the presidential system will bring prosperity. Justice Mansoor questioned does Islam says that there should be a presidential system.

Justice Ata Bandial said that the court does not have power to say the new system will improve things.

 The court upholding the registrar office’s objections declared that the petitions are non-maintainable. Justice Bandial said that whatever form of the presidential system the country faced problems. Addressing the petitioners he said that there is hope things will improve if there will be a parliamentary form of government.

 Ahmed Raza Kasuri, a petitioner, said that the SC Registrar should not have power to dismiss the petitions. Justice Bandial told the petitioners that their applications do not have substantial material about fundamental rights. He asked the petitioners that why they had to come to the Supreme Court in the presence of powerful political parties. He remarked that if any political party had approached the Court then they might have considered the plea.

Kasuri said that in the Parliament there are only abuses and when the politicians do not think for the welfare and development of the country, then he also remained silent. He added, “I am among the founders of the 1973’s Constitution.”

Justice Mansoor said that under Article 48 (6) of Constitution the prime minister can place the matter before the parliament for referendum. He questioned whether the Prime Minister placed this issue before the parliament or not? He further asked whether the presidential system is the wish of an individual. Kasuri responded that he is not an individual, but an institution.

 Justice Munib said, “Mr Kasuri at the time of framing of 1973 Constitution you were the parliamentarian.” “Did you sign for the parliamentary system in the constitution,” he questioned. “Neither I voted nor signed on the constitution,” Kasuri replied. “Then you could not claim to be a founder of the constitution,” Justice Munib remarked.

Petitioner Dr Sadiq Ali said that according to the Islamic point of view there should be democracy like in Khulfa-e-Rashideen periods. Justice Bandial said that everyone wants leadership like Khulfa-e-Rashideen. He added, “We should be realistic that now we cannot find leadership like Khulfa-e-Rashideen.”

Justice Bandial said that Quaid-e-Azam also talked about democracy. He asked the petitioners that they are free to launch political movement for their cause.