KARACHI, Aug 22: Counsel for Benazir Bhutto termed on Thursday the Legal Framework Order illegal and contended that amendments to the constitution, especially to article 63 (p), were mala fide and intended to keep the petitioner out of political dispensation.
Counsel Barrister Kamal Azfar was arguing before a bench of the Sindh High Court, comprising Justice Sabihuddin Ahmed and Justice Ali Aslam Jafferi, on a petition in which the former prime minister has prayed for enforcement of her right to contest election to the National Assembly from NA-207 and has challenged the Musharraf regime’s measures to keep her out of the political and electoral process.
“These amendments are illegal and mala fide and outside the ambit of powers conferred by the Supreme Court in Zafar Ali Shah’s case,” argued Barrister Azfar who, along with Farooq H. Naek, represented the former prime minister.
The bench also allowed the petitioner’s application for filing an amended petition, also questioning amendment to article 63 (p) of the constitution. The petitioner has prayed for declaring this illegal.
The counsel sought an interim order from the court, allowing the petitioner to file nomination papers for NA-207, saying that it should be left to the voters once again to decide who should represent them.
It was also prayed that the returning officer should be directed not to announce adverse order on scrutiny until her petition was decided.
Justice Ahmed observed that “you can always file a nomination paper. The court can always grant you relief if it comes to a conclusion that the amendments are invalid.”
Attorney-General Makhdoom Ali Khan argued that the question was whether disqualification was constitutional or unconstitutional, whether the amendments were constitutional or unconstitutional? It was his contention that appeal against rejection of nomination papers could be raised at an appropriate forum.
He argued that the “court has powers to strike down a constitutional provision, but it cannot suspend a provision of law.”
Barrister Azfar, however, said that the apprehensions expressed by him on Wednesday that the adjournment was being sought in order to bring an amendment to cover up the illegalities in the CEO No 21 of 2002, which was inconsistent with article 63.
He said that the chief executive had no legislative power or jurisdiction to make any change or amendment to the constitution as the power to amend the constitution was the prerogative of a duly elected parliament.
He added that the government was motivated by the desire to introduce new faces in the political arena. If such practice was permitted this would be fraught with dangerous consequences. He pointed out that when Hussain Shaheed Suhrawardy was disqualified under the EBDO by Ayub Khan, the leadership of the Awami League was transferred to the “new face” of Shaikh Mujibur Rahman.
The AG opposed the maintainability of the petition. He said that appropriate remedy had been provided in the Election Laws.
He argued that no interim order could be passed by this court, as in election matters this court could not interfere. He also submitted that the petitioner had not filed nomination papers. If she did so and the same were accepted or rejected, a legal remedy was available in either case to aggrieved parties. If her nomination papers were accepted, other contesting candidates had a right to challenge her candidature. In case nomination papers were rejected, an appeal lay before the Election Tribunal.
He pointed out that the returning officer had not yet rejected her nomination papers.
Barrister Azfar relied upon the case of Ghulam Mustafa Jatoi in which a constitutional petition was filed and interim relief was given. He submitted that his client had a strong prima-facie case to contest the election and the balance of inconvenience was also in her favour.
He said that if interim relief was not allowed, the petitioner would suffer irreparable loss and the voters of NA-207 would be deprived of an opportunity to elect the petitioner.
Counsel Farook H. Naek pointed out that in case interim relief was not granted the name of the petitioner would not appear on the ballot paper and she would not be able to challenge the elections even under the election laws, whereas no harm and/or injury would be caused if the petitioner was allowed to contest the election.
