6, April 2005	Wednesday	26 Safar 1426

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ISLAMABAD, April 5: Wondering as to why lawmakers sent to parliament by their electorate were not following the dictates of the constitution, Chief Justice Nazim Hussain Siddiqui on Tuesday asked advocate A.K. Dogar if the judiciary could consider itself wiser than elected representatives. “And can we consider ourselves (the judiciary) wiser than the elected representatives?”, the chief justice asked Mr Dogar towards the end of Tuesday’s proceedings on constitutional petitions challenging the 17th amendment and the dual office of President Pervez Musharraf.

Advocate Dogar of the Pakistan Lawyers Forum (PLF), who has challenged the vires of the 17th amendment, replied that the judiciary was wiser than the parliamentarians, as the latter were not adhering to the provisions of the constitution.

They (parliamentarians) were driven by personal motives to support an unelected president who was providing them benefits, he observed.

The bench, specially constituted to hear seven constitutional petitions that had been pending before the court for some time, comprises the chief justice, Justice Iftikhar Mohammad Chaudhry, Justice Javed Iqbal, Justice Abdul Hameed Dogar and Justice Faqir Mohammad Khokhar.

“Look at the size of the cabinet, which consists of 62 ministers, while India, the largest democracy in the world, has only 45 ministers,” Mr Dogar said, adding that even the National Assembly speaker had asked for a luxurious car worth Rs11 million.

“The gang of dacoits always support each other, otherwise they know they would be physically eliminated,” he said.

At this point, Justice Javed Iqbal observed that we could not absolve ourselves by shifting the responsibility of all the ills to parliament as being a nation there had been a great contradiction between our words and deeds.

“Should we substitute the parliamentarians and start doing their job,” Justice Iftikhar Chaudhry observed.

By holding a referendum, Mr Dogar pleaded, President Musharraf had entrenched himself to remain in power. Therefore, he was a self-imposed president and not an elected one.

Citing article 50 of the constitution, he argued that without a duly elected president parliament should be considered incomplete.

“If for the time being we accept that the 17th amendment was correctly inserted in the constitution, even then President Musharraf violated its provisions by keeping military uniform beyond Dec 31, 2004,” he added.

Mr Dogar referred to the Zafar Ali Shah case and said that Gen Musharraf was bound to obey the directives set out by the apex court, during which an undertaking was given by the president to hand over power to civilians. He regretted that it had not yet been done.

Since President Musharraf had failed to carry out the directives of the apex court by not surrendering powers to civilians, the three-year extension had become invalid in the eyes of law, he argued.

Mr Dogar also quoted the objectives resolution which formed part of the constitution through article 2A, and contended that sovereign powers could only be exercised by the people through chosen representatives. This, he said, was the fundamental principle of the constitution enshrined in the Holy Quran and Sunnah and, therefore, could not be abrogated or held in abeyance by any regime, be it military or civil.

Based on the Holy Quran and Sunnah, the objectives resolution and the ideology of Pakistan were the basic structure of the constitution. Therefore, courts could not remain silent if parliament made any amendment which abridged any right guaranteed in the basic structure or declared Pakistan to be a secular country, contrary to its ideology.

“This court is the custodian of the constitution,” he said.

Advocate Dogar is likely to conclude his arguments on Wednesday after which Awami Himayat Tehrik Party chairman Maulvi Iqbal Haider, Barrister Zafarullah Khan of the Watan Party and Jamil Ahmed Malik of the Pakistan Communist Party will present their arguments.