KARACHI, Aug 23: Counsel for former prime minister Benazir Bhutto filed on Friday amendments in the constitutional petition to impugn the substitution in article 63 (1) (p) of the constitution.
A division bench of the Sindh High Court had on Thursday allowed Barrister Kamal Azfar’s application for amending the prayers, in view of the situation after the promulgation of the Legal Framework Order 2002 on Aug 21.
In the additional ground the petitioner has maintained that “the substitution of paragraph (p) in article 63 (1) of the Constitution of Pakistan by the impugned CEO order/LFO of 2002, is in violation of the Constitution and the judgment of the Supreme Court of Pakistan in Zafar Ali Shah’s case.”
Through the amendment, the petitioner has also prayed for declaring the substitution of paragraph (p) in article 63 (1) of the constitution without lawful authority and of no legal effect.
It is the case of the petitioner, whose case is being argued by Barrister Azfar and Farook H. Naek, advocate, that she has never absconded in terms of section 31-A of the NAB Ordinance of 1999, as the petitioner has left the country with the permission of the Lahore High Court. Thus, no question of disqualification under clause 2 (n) of article 8D of CE Order No 7 of 2002, as amended, arises.
Even otherwise, article 8D 2 (n) only applies where a person has been “convicted” of absconcion. Under section 31-A, the guilt is determined by operation of law and not as a result of conviction. Thus, the disqualification envisaged under article 8D 2 (n) does not apply in the case of the petitioner.
It is her case that section 31-A of the Ordinance of 1999 only applies where a person absconds in order to avoid being served with any process.
The very concept of automatic conviction, let alone one without even a trial, is completely subversive of the cardinal principle of due process of law and is inconsistent with the norms of civility and justice.
Article 8D 2 (n) of CEO7 of 2002, as inserted by CEO No 21 of 2002, is violative of articles 4 and 9 of the constitution as a person is disqualified from being elected to the parliament against the doctrine of due process of law and the principle of natural justice.
It is also the petitioner’s case that section 31-A of the NAB Ordinance 1999 is violative of article 175 of the constitution as it interferes with the judicial functions, which the courts are required to perform in accordance with, inter alia, the Criminal Procedure Code, while dealing with cases of absconcion. The legislative fiat reflected by section 31-A of the Ordinance 1999 flouts the independence of judiciary.
This section, which automatically convicts a person, is violative of articles 4 and 9 of the constitution which guarantee the right of every citizen to be dealt with in accordance with law and that no action detrimental to liberty shall be taken except in accordance with law. Conviction of a person without any trial whatsoever is a mockery of the due process of law.
It is Ms Bhutto’s case that section 31-A of the Ordinance 1999 which automatically finds a person guilty for reason of absconcion regardless of the individual circumstances of each case, is manifestly arbitrary and discriminatory.
It is her case that the impugned provisions have been enacted by Gen Pervez Musharraf with the declared malafide intent of disqualifying her from the electoral process thereby subverting/frustrating the free exercise of expression of will by the people of Pakistan through ballot.
It is her case that article 8D 2 (n) of CEO 21 of 2002, as amended, is inconsistent with article 63 (h) and (l) of the constitution, which already provides for convictions which results in disqualification of a person.
Article 8 D 2 (n) of CEO of 21 of 2002, as amended, is outside the parameters of limited power to amend the constitution for the welfare of the people which has been circumscribed in Zafar Ali Shah’s case.
Besides praying for declaring the modification to article 63 (1) (p) illegal and unconstitutional, the petitioner has also prayed for declaring that section 31-A of the National Accountability Bureau Ordinance of 1999 and article 8D 2 (n) of CEO 7 of 2002 as inserted vide CEO 21 of 2002, is ultra vires of the provisions of the constitution.
The petition is fixed on Aug 27 before a division bench of the Sindh High Court.
