ISLAMABAD, Feb 10: A Supreme Court bench on Monday declared the law which had prohibited defeated politicians from contesting Senate elections as discriminatory and violative of Article 25 of the Constitution.
The Supreme Court said: “We hold that Article 8AA is discriminatory in nature and as such violative of Article 25 of the Constitution of the Islamic Republic of Pakistan.”
This is the first decision of the apex court disproving any act of President Gen Pervez Musharraf. It had first validated the military takeover on October 12, 1999, on the basis of the doctrine of necessity, and all subsequent actions were approved on the touchstone of this Provisional Constitutional Order.
“We further hold that disqualification attributable to defeat in consequence of the lawful act of contesting election of the national and provincial assemblies should have been provided in the original order itself, so that the affected persons should have an opportunity to avoid such disqualification,” the court said.
The government had defended the legislation, saying that President Musharraf was empowered by the Supreme Court to prescribe any qualification or disqualification for members of parliament.
The SC bench consisted of Chief Justice Shaikh Riaz Ahmad, Justice Munir A. Sheikh, Justice Nazim Hussain Siddiqui, Justice Iftikhar Mohammad Chaudhry and Justice Qazi Mohammad Farooq.
The Supreme Court made no mention of the Legal Framework Order 2002, whose legality was called into question by a number of petitioners, including Millat Party senior vice president Javed Jabbar.
Twenty-five petitioners had approached the Supreme Court under its original jurisdiction, arguing that Article 8AA of the Conduct of General Elections Order 2002 was violative of their fundamental rights as it was discriminatory in nature and issued with mala fide intentions.
It was argued by Mr Javed Jabbar that some federal ministers who had applied for PML-Q tickets knew that such a restriction would be imposed, they had not contested elections, he said.
The petitioners had questioned the vires of Article 8AA on the ground that it was promulgated at a time when the chief executive had lost his legislative power and was issued without authority.
The apex court had allowed all the petitioners to contest the Senate elections as an interim measure, and adjourned the case for an indefinite period.
Mr Asfandyar Wali of the ANP petitioned the court that it should decide the case before the holding of the Senate elections. It was argued by the ANP leader that in case the Supreme Court, in its final decision, rejected the petitions, its share in the Senate would go to some other party as under the Senate election rules, the next candidate was declared winner in case the winner was disqualified on any ground.
The government, 19 days after the holding of general election, had amended the Conduct of General Elections (Eighth Amendment) Order 2002, and added Article 8AA, providing that “a person shall be disqualified from being elected or chosen as, and from being, a member of the Senate if, having been a candidate for election to the National Assembly or a provincial assembly at the elections held under this order he has not been elected to such assembly.”
Syed Iftikhar Gillani and Raja Ibrahim Satti had argued on behalf of the petitioners, and Attorney-General Makhdoom Ali Khan had represented the federation.
