No constitutional constraint: LHC: President in uniform
By Zeeshan Siddique
LAHORE, June 10: Elaborating on its short order announced on May 19, the Lahore High Court on Tuesday validated President Gen Pervez Musharraf’s decision to remain in military uniform till a date of his own choice, ruling that this announcement was not impeding the state’s functioning nor contravening any provision of the 1973 Constitution.
The LHC Chief Justice, Mr Iftikhar Hussain Chaudhry, who headed a division bench with Justice Akhtar Shabbir as the other member, issued the detailed judgment on a Pakistan Lawyers Forum’s petition seeking trial of Gen Musharraf on high treason charges under Article 6 of the 1973 Constitution. The bench had dismissed the petition in limine on May 19 through a short order. The court had stopped the media from coverage of the case proceedings and publishing of the short order.
In the petition filed in April, the PLF had pleaded that the president had made a show of force by announcing that he would hold both offices of army chief and president simultaneously till his own decision to take off the uniform which amounted to treachery under Article 6 of the Constitution.
PLF President AK Dogar had also questioned both the legality of the last year’s presidential referendum and the authority of the president to amend the constitution besides accusing him of not having yet transferred the power to civilian government in violation of Supreme Court’s judgment.
“We have not noted anything in the Constitution which would debar the president from remaining in uniform nor is his holding the two office simultaneously creating any hindrance to the smooth functioning of the government or any other institution,” the bench noted in its judgment released three weeks after the pronouncement of the short order.
The court further ruled that “none of the constitutional provisions is affected if the president remains in the uniform. Therefore, decision by the president that he would take off the uniform on a date of his own choice does not impinge upon any constitutional provision and the Article 6, in no way is attracted to this case.”
While touching on the petitioner’s objection to the insertion of Article 41(7) in the Constitution, through which the president was authorised to hold this office for five years, the court ruled that the amendments made in the Constitution by President Musharraf were incorporated under the authority granted to him by the Supreme Court and this act of amending the Constitution would not amount to its subversion. As further observed by the court, whatever was done by the president with regard to introducing amendments to the Constitution, had been executed in accordance with the dictum of the SC.
REFERENDUM ORDER 2002: The court refused to take into account the argument that the president was not chosen in accordance with the constitutional provisions and Article 41(7) did not confer any right on Gen Musharraf to hold the president’s office for five years. The court declared the status of Referendum Order 2002 as unquestionable, ruling that this order was not based on any mala fide intentions and was promulgated in accordance with Proclamation of Emergency Order 1999, which had already been validated by the Supreme Court in the Zafar Ali Shah’s case.
While declaring the president’s selection valid, the court observed “the president was elected under the provisions of the Referendum Order 2002, as the electoral college prescribed by the Constitution for the election of the president did not even exist. Therefore, the provisions of the Constitution on this subject would not attract to this case.”
TRANSFER OF POWER: The court rejected the plea that Gen Musharraf had subverted the Constitution by not yet transferring the power to the prime minister and the real power still vested in his office. “No material has been placed before us which could show that the prime minister was not exercising his powers vested in him by the civilian government was dysfunctional.”
The bench members ruled that all constitutional provisions relating to the office of the prime minister were intact and had not been touched or even amended in any manner. The court noted “the Rules of Business, 1973, are intact. The argument that power has not yet been handed over to the chosen representatives of the people is nothing but a subjective and notional view of the petitioner.” It supported this verdict with an observation that still the basic structure of the Constitution was the same, the provisions relating to the institutions were intact and all these institutions existed as mandated by the Constitution.
LFO: The bench members termed the LFO an instrument for the revival of the 1973 Constitution and adopted observations of a division bench made earlier in a judgment on PLF’s intra-court appeal against the LFO. The court reiterated that under Article 199, the constitutional courts could not strike down the LFO which was more of political issue whose fate was to be decided by parliament.
