ISLAMABAD, April 25: The Supreme Court bench, hearing petitions challenging the holding of referendum, was informed by a petitioner that Gen Pervez Musharraf was not the first military ruler to hold referendum for prolonging his stay in office.
“Col Qadhafi of Libya, Anwar Sadat of Egypt, Gen Pinochet of Chile, and Gen Irshad of Bangladesh also held similar referendums,” said Moulvi Iqbal Haider, who is often used by “invisible powers” to state such things before the court which any professional lawyer will be hesitant to state.
He appealed to the court to hold that there was no bar on Gen Musharraf to hold referendum, adding that Gen Zia’s referendum was condoned by the National Assembly and after that five parliaments came into being but none of those bothered to express any opinion on the issue.
He said that Jamaat-i-Islami chief Qazi Hussain Ahmed, one of the petitioners, remained member of the Senate but he never raised his voice against the holding of referendum by Gen Zia.
The petitioners’ counsels completed their arguments on Thursday, leaving the stage for the government lawyers to start defence of assumption of office of president by Gen Musharraf and holding of referendum to prolong it for five more years.
Syed Iftikhar Hussain Gillani would open the defence argument, followed by Maqbool Ellahi Malik, Advocate-General of Punjab; Abdul Hafeez Pirzada and Syed Sharifuddin Pirzada.
Syed Sharifuddin Pirzada said he being the senior lawyer would advance his arguments after all the other counsels finished their pleadings. The court is likely to complete hearing on Saturday.
Advocate Sharif Bukhari, representing the Alliance for Restoration of Democracy, stated that the Chief Executive did not enjoy immunity from legal action provided under Article 248 of the Constitution.
He pointed out that the Chief Executive was not accepted as the prime minister, but was only allowed to use the powers of the prime minister in the transitory period.
Referring to the written reply submitted by the respondents, the counsel stated that on the one hand the respondents demanded immunity under Article 248, on the other they had stated that Constitution was held in abeyance.
He said the respondents had, purposely, not mentioned the word election in the written statement, and said that referendum was nothing but an appeal to the political sovereigns. The counsel stated that his client, ARD, a conglomerate of 15 political parties, was equally entitled to go to masses.
The counsel further stated that no legal necessity existed for the holding of referendum. The Referendum Order, he said, was not an honest legislation unlike Article 96 (a) which had come into existence as a result of Seventh Amendment.
In Article 96 (A) it was provided that if the prime minister decided to get a vote of confidence and got a negative response subsequently, he would be deemed to have retired. But now even if the response was in negative, the man would remain in office.
The Referendum Order, he stated, was nothing but a fraud on the statute. The general, he said, was so ambitious that he wanted to concentrate everything in his hands. He ended arguments by quoting William Shakespeare, saying that Brutus had justified the murder of Caesar on the grounds that Ceaser, despite being a gentleman, was an ambitious man.
Sheikh Mushtaq Ali, representing the Adal Trust, stated that the Supreme Court had given three years to the military government to achieve seven declared objectives. None of those objectives, he said, had been achieved in the last three years. The Supreme Court should have taken a suo motu notice of this failure, but when people from streets had reached the court, it must not give more time to the military government, he said.
About the powers of the Election Commission to hold referendum, he said the EC had absolutely no constitutional mandate. Article 48(6), he said, was not part of the original Constitution as Gen Ziaul had inserted it in the Constitution, hoping some one else like him might use it.
The counsel argued that holding of “fair” referendum was not possible and a provision had been added to the Referendum Order to fill the ballot boxes with fake votes. He stated that few government officials would be left alone in the polling stations after the polling was closed and they would be free to stuff the boxes with fake votes. By making the Election Commission sole arbiter to disputes arising out of the Referendum Order, the possibility of challenging the wrongdoing of the officials was also eliminated, he pointed out.
He requested the court to stop the holding of referendum as Gen Musharraf had already proved that he was not trustworthy as he was violating the Supreme Court judgment.
Advocate A.K. Dogar, representing Syed Zafar Ali Shah, a former MNA from Islamabad, opened his arguments with this: “Is the general above the law?”
He said that Gen Musharraf was directed by the Supreme Court to go back to barracks after three years but he was now trying to get out of those restrictions through referendum.
He said that the use of public office for personal gains was defined as corruption in the NAB Ordinance and added that Gen Musharraf was guilty of the same offence on four counts as he was misusing four offices.
The counsel pointed out that the roadmap given by the Supreme Court for restoring the civilian rule made no mention of referendum. The holding of referendum for extending the rule was an extra-constitutional act as was the military takeover on October 12, 1999, he said.
The lawyer argued that election of the president could not be held before the election to National and Provincial Assemblies. “A child cannot be born before the birth of the parents.”
The counsel stated that Gen Musharraf was not qualified to contest the election as he was not fulfilling the conditions laid down under Article 62 and 63 of the Constitution.
He referred to reports that the press information department had sought Rs27.5 million for running the election campaign of the Chief Executive.
The other petitioners, Engineer Saleemullah, Waseem Rehan, Shahid Orakzai and Moulvi Iqbal Haider were given short time to complete their arguments.
Shahid Orakzai, who prayed that referendum should be held with general elections to save millions of rupees, was dissatisfied that he was not given enough time to put across his views. He said he wanted to withdraw his petition, and the court allowed him.
