September 18, 2007	Tuesday	Ramazan 05, 1428

LAHORE, Sept 17: The Lahore High Court has been moved for declaring illegal the Election Commission of Pakistan’s announcement, through a ‘notification’, that Gen Pervez Musharraf is an eligible candidate for re-election as the president of Pakistan.

“The ECP has neither the powers nor jurisdiction to change the pre-requisite qualification of a candidate seeking election as president of Pakistan,” pleaded Muhammad Azhar advocate, the petitioner.

The lawyer maintained in his petition that no such power stood granted to the Election Commission of Pakistan and no sub-constitutional legislation could change the provisions of the Constitution in this regard. The constitutional provisions could only be amended or altered through the procedure laid down in Articles 238 and 239 of the Constitution, he added.

“Where a person or an institution publicly and declaredly acts in conflict with the constitutional provisions in respect of certain matters, it is for the proper authorities to consider if such act amounts to sedition and if so take remedial measures to uphold and apply the provisions of Constitution,” he said.

“The qualifications for becoming a candidate for the high office of president of Pakistan are contained in Article 41, read with Articles 62 and 63 of the Constitution. The ECP is bound to follow them and divergence is not permitted,” he stated.

The amendments contained in Article 41 (read with Articles 62 and 63 of the Constitution) were incorporated for a specific purpose, for a specific person and for a specific period of time, he said. These conditions stood met with due to expiry of that period, he added.

The Supreme Court dictum in case of Qazi Hussain Ahmad was pronounced when the constitutional provisions were not enforced, he said. The effect of the constitutional provisions were accordingly not an issue that attracted the attention of the august Supreme Court, he added.

The election commission relied upon the dictum wrongly for issuing the impugned notification, he said. “Being devoid of sustainability under the constitutional provisions, the impugned notification is a stillborn child. This gracious court may consider declaring it as void, illegal, mala fide and fraud,” he said.

The constitutional provisions did not provide that a person could remain qualified to act as president of Pakistan while holding an office of profit under the government beyond 15th of November, 2007, he said. A candidate, clearly suffering from a constitutional inability to remain the president for the next five years, could not seek such election for next five years, he stated.

The lawyer sought that the operation of notification during the hearing of the petition may be stayed.