LAHORE, May 26: The Pakistan Lawyers Forum on Monday moved the Lahore High Court against the holding of the offices of president and the COAS simultaneously by Gen Pervez Musharraf.

PLF president A.K. Dogar further prayed that the court should issue restraint orders against the functioning of the sitting president till the disposal of the petition.

Claimed to have been filed in the public interest, the petition is based on the argument that even if the Legal Framework Order (LFO) is assumed to be a part of the 1973 Constitution, Gen Musharraf could not hold the offices of president and the COAS simultaneously.

According to the petitioner, the president could be asked by a court of law through a writ issued in nature of a quo-warranto (a petition questioning the authority of a public office holder) under Article 199 to disclose the source of authority which gave him the powers to assume the office of president.

Advocate Dogar further argued that under Article 243 of the 1973 Constitution, the federal government shall have the control and command over the armed forces. In the current democratic set up, the prime minister was the supreme commander.

“A government elected under the Constitution can only perform its functions and ensure observance of the constitutional provisions by making the civil power superior to and not subordinate to the armed force during peace as well as war,” he quoted a excerpt from Supreme Court’s judgment delivered in Sheikh Liaquat Hussain’s case.

It was argued that Article 41(7) empowers Gen Musharraf to hold the office of president for five years without being elected as such. This article is in conflict with Article 2-A of the Constitution which declares Holy Quran and Sunnat as the prime source of legislation.

“The latter (article) says loud and clear that power of state can be exercised only through the chosen representatives of the people. No one in the country can exercise power and authority unless he is an elected representative”.

The petitioner submitted the SC had ruled in Al-Jihad case that whenever there was a conflict in two provisions of the Constitution, with one incorporated through the consensus of the legislator and the other introduced by a dictator, the former would prevail. In the present situation, Article 2-A which was incorporated in the Constitution in March 1985, would have the overriding powers when compared with Article 41(7) which was introduced through the LFO.

Regarding his locus standi, the petitioner argued that the SC had in its judgment in Benazir Bhutto case observed that any person could activate a court for the enforcement of the fundamental rights of a class which itself was unable to seek relief from the court for different reasons.