Presidential system is against basic structure of Constitution, rules LHC

The Lahore High Court has ruled that the presidential system of government is against the basic structure of the constitution regarding democracy which can’t be altered.

Dismissing the constitutional petition seeking direction to the federal government to hold a public referendum to determine the will of the people of Pakistan for a presidential system, Justice Jawad Hasan ruled,  “Conduct of a referendum goes against the basic structure of the Constitution regarding the democracy”.

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In its 5 page order, the court noted that the LHC had already passed a detailed judgment by discussing the preamble of the Constitution on democracy in the case of Jamshed Iqbal Cheema versus The Election Appellate Tribunal and clearly stated that the principles of democracy shall be fully observed; dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny. It further observed that the State shall exercise its powers and authority through the chosen representatives of the people.

The court dismissed the petition at the limine (first hearing) stage and observed that such kind of petition brought before the LHC in this legal system will try to change the structure of the Constitution, scope of which has been comprehensively discussed by the Supreme Court of Pakistan in case of District Bar Association, Rawalpindi and others versus Federation of Pakistan and others.

To substantiate his arguments, the court mentioned that the Full Bench of the Supreme Court of India in the famous case reported as Kesavananda versus State of Kerala has held that the basic structure and framework of the Constitution cannot be altered as it was made by the chosen representatives of the country.

The court maintained that the leading Jurist of India namely Nani Ardeshir Palkhivala in Kesavananda’s Case convinced the Supreme Court of India by stating that “creature of the Constitution, cannot become its master.”

“The concept of decentralization of power and functions has gained currency throughout the world and political philosophers have advocated merits of sharing responsibilities with all the component units of the state instead of concentration and centralization of all the powers within the Federal Government,” the judge further observed.

The court observed that it is clear that the federal government exercises powers within the framework provided under the federal rules while the provincial government will exercise powers within the framework provided under the Punjab Government Rules of Business, 2011.

During the hearing, The law officers of both the Punjab government and federal government also objected to the maintainability of this petition on the ground that the petition is liable to be dismissed under the Doctrine of Limine Control developed by this Court in Asif Saleem versus Chairman BOG University of Lahore and others holding that for early and expeditious disposal of a case, the court can decide the matter at the limine stage on the basis of material/documents available on the record/file, without issuing notice to other side so that the party concerned may not face inconvenience or monetary loss in approaching this Court.

“Most importantly, this Court has to exercise the powers of judicial restraint to protect/guard the sanctity of the Constitution as well as the government institutions established under the Constitution, “the court opined.

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The court also declined the petitioner’s plea to issue directions to government authorities for expeditious disposal of his application to hold a referendum for the Presidential system in Pakistan.

“I am afraid, the request of the Petitioner regarding issuance of a direction by this Court for expeditious disposal of his application/request cannot be allowed for not being tenable in the eye of law. In this case, neither proper party has been made to whom a direction can be issued nor has the relevant law been cited by the Petitioner under which such direction can be issued, and most importantly, the prayer made by the Petitioner is against the basic structure of the Constitution, “the judge concluded.