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| March 19, 2003 | Wednesday | Muharram 15, 1424 |
President cannot overrule two-third majority: LHC ruling
LAHORE, March 18: The Lahore High Court (LHC) on Tuesday ruled that under the 1973 Constitution, the president was bound to sign every bill passed by a two-third majority of the Parliament.
Justice Tassadaq Hussain Jilani, senior member of the division bench, while hearing Pakistan Lawyers Forum’s intra-court appeal against the LFO, refuted the petitioner’s argument that President Pervez Musharraf had the authority to reject a bill of the Parliament that disapproved of his presidency and the LFO.
The court observed that the president could only send a bill back to the Parliament for review. The bill would become a law even if he refused to sign it for the second time.
The court further observed that former president Ziaul Haq had signed the eighth amendment bill following its approval by a two-third majority of the Parliament, and this precedent could not be ignored while considering the hypothetical situation cited by the petitioner.
Justice Jilani observed that the SC judgment in Zafar Shah case was the only time in the history of the country when the court set parameters for a military ruler by giving him a three-year timeframe, the authority to amend the Constitution and a roadmap for restoration of democracy.
The court further observed that the only valid question in the appeal was whether the parameters set by the SC in Zafar Ali Shah case had been violated by the former military regime.
With regard to legality of the referendum order, the court ruled that it had become part of the 1973 Constitution since the matter was examined by the Supreme Court and no objection raised. “All we have to see is the impact of the referendum order as part of the Constitution,” observed Justice Jilani.
According to the court, the constitutional precedent for the referendum order was the Parliament approving Ziaul Haq as the president through Eighth Amendment to the 1973 Constitution after he had assumed the office through a referendum in 1985. Gen Pervez Musharraf claims to be the president for the next five years since the referendum order has been made part of the Constitution, the court observed.
It also cited the observation of SC on the referendum order that “this matter would be decided by an appropriate forum at an appropriate time” and sought explanation of the term “appropriate forum” from petitioner’s counsel A.K Dogar. The counsel submitted that by an appropriate forum, the SC meant any court having the jurisdiction to enforce the Constitution.
The court pointed out that Article 41(6) of the Constitution clearly laid down that “election of the president could not be called into question”, and the petitioner could not challenge the validity of the referendum order.
The petitioner, however, disagreed with this observation saying that this provision was applicable to an elected president and not to the one assuming the office through a referendum. He elaborated his point by arguing that the term “election” stood for two or more candidates vying for an office while in the present case, one person had become president without any competition.
He submitted that the SC had not validated the military takeover of October 1999 but only the actions that would be taken in line with the 1973 Constitution within a three-year timeframe. The SC never gave him the authority to install himself as the president of the country or amend the Constitution after Oct 12, 2002, through the LFO, claimed the counsel.
He alleged that President Musharraf was “withholding” power and not transferring it under the SC directions after the three-year timeframe.
Mr Dogar, while arguing the appeal on behalf of the PLF, submitted that the Parliament could not approve a non-elected person as the president and contravene Article 2-A of the 1973 Constitution. It could not permit an individual to amend the constitution either, claimed the counsel.
The court pointed out that there was a contradiction in his arguments since he had argued the other day that those provisions of the LFO that were passed for the good of the general public should be considered as valid.
The petitioner stood by his argument. He further submitted that a parliament did not have any constitutional identity without an elected president and would remain incomplete.
He submitted that the High Treason Punishment Act 1973 had prescribed death penalty or life imprisonment for anyone subverting the Constitution after March 23, 1956. The constitution of a country is the will of its people and cannot be amended by an individual, the petitioner concluded.
Deputy Attorney General Sher Zaman Khan informed the court that Attorney General Makhdoom Ali Khan would like to argue the case on behalf of the State, whereupon the hearing was adjourned until March 26.
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