Apex court cites grounds for rejecting Qadri’s plea

Says he has failed to convince them that his rights have been infringed upon.

ISLAMABAD: The Supreme Court announced on Wednesday that dual nationality holders can approach Pakistani courts, but Minhajul Quran’s Dr Tahirul Qadri has failed to convince judges that any of his fundamental rights have been infringed upon.

The court, in its detailed judgment authored by Chief Justice Iftikhar Muhammad Chaudhry, has relied on political reasons for striking down Qadri’s petition against the Constitution of the Election Commission of Pakistan (ECP).

While quoting different cases, the judgment held that the upshot of the discussion is that the burden of proof was upon the petitioner to demonstrate which of his fundamental rights had been infringed upon, but he failed to point out an infraction of any of his rights.

The judgment goes on to say that given that this is an election year, the importance of the Election Commission is highlighted more than ever and we must be ever more cautious to not even appear to be placing restrictions upon its independent and Constitutional functions. It is certainly a matter of great public concern as it pertains to the deliverance of the right of representation through free and fair elections, a key aspect of democracy identified by the Constitution in the Workers Party Pakistan case. Therefore, an attack on the constitutional validity of such an important institution cannot be well received from the petitioner.

The judgment mentions, acquisition of nationality of any foreign country is not an impediment by itself in filing a petition under Article 184(3) or 199 of the Constitution. (But) as the facts surrounding the instant petition are rather peculiar and merit a complete appreciation of the various factors involved, it is to be noted at the cost of repetition that the petitioner is a renowned, well reputed and respected religious scholar, jurist and professor of law. However, as per his own declaration in his petition and concise statement submitted before this court, he is a citizen of Canada, read the verdict.

“He holds the nationality of Canada and carries a Canadian passport which he uses to travel the world for his frequent international engagements. As per his own admission, he only travels to Pakistan on his Pakistani passport and is otherwise allowed to enter, remain in and treated as a Canadian national throughout the world,” it adds.

The judgment also held that from the perusal of the petition it is clear that the petitioner has emphasized that the procedure provided in Articles 213 and 218 of the Constitution with regard to appointment of the Chief Election Commissioner as well as the members of ECP has not been followed in letter and spirit.

Scope of Article 184 (3)

At this stage, it would be appropriate to consider the scope of Article 184(3) of the Constitution as deliberated upon by this court in various pronouncements. The court also quoted three cases of former prime ministers of Pakistan Benazir Bhutto, Nawaz Sharif and Jamaat-e-Islami to explain the scope of article 184 that is being questioned by certain parliamentarians.

The court withdrew a conclusion of these discussions that Article 184(3) is remedial in character and is conditioned by three prerequisites, namely:

(i)         There is a question of public importance.

(ii)        Such a question involves the enforcement of a fundamental right, and

(iii)       The fundamental right sought to be enforced is conferred by Chapter 1, Part II of the Constitution.