ISLAMABAD, Sept 17: Two members of a Supreme Court bench hearing petitions challenging President Gen Pervez Musharraf’s holding of two offices said on Monday they wondered how could the Election Commission change the rules governing the presidential election.
“Can articles of the Constitution be amended or deleted by a sub-legislation?” asked Justice Falak Sher and said: “Article 63 cannot be made ineffective through sub-legislation.”
Justice Javed Iqbal also expressed surprise at the amendment made by the Election Commission and said it was ‘very significant’ and ‘a drastic development’ which should be taken note of. He hinted at examining the competence of the Chief Election Commissioner to amend the rules.
On Sept 10, the Election Commission had amended the Presidential Election Rules to make non-applicable disqualifications for a presidential candidate as explained in Article 63 of the Constitution.
“In the dark of the night”, the CEC deleted disqualifications spelt out in Article 63 of the Constitution for election of the president, senior advocate Mohammad Akram Sheikh said in his opening arguments. Mr Sheikh is fighting the case of the Jamaat-i-Islami before the nine-member bench hearing identical petitions on the issue of two offices.
JI chief Qazi Hussain Ahmed has challenged the president’s retention of the army post, Pakistan Tehrik-i-Insaf chief Imran Khan has challenged the two offices of Gen Musharraf, Jameel Ahmed and Shahid Orakzai have filed petitions against the president for holding two offices, Prof Anwarul Haq has sought permission to contest the presidential election and Maulvi Iqbal Haider has favoured the dual offices of the president.
Besides Justice Falak Sher and Justice Javed Iqbal, the bench comprises Justice Rana Bhagwandas, Justice Abdul Hameed Dogar, Justice Sardar Mohammad Raza Khan, Justice Mohammad Nawaz Abbasi, Justice Faqir Mohammad Khokhar, Justice Mian Shakirullah Jan and Justice M. Javed Buttar.
The JI counsel said the amendment constituted contempt of the court because the Election Commission had tried to overreach judgments of the Supreme Court in instant petitions. The Election Commission, he said, was reluctant to issue a schedule for the presidential election because of the pending petitions.
The larger bench decided to continue hearing and hinted at concluding its proceedings in a week after unanimously rejecting a request of the JI, Imran Khan and the Pakistan Lawyers Forum to constitute a full court comprising all judges of the court.
Justice Rana Bhagwandas chose not to disclose dissenting voices in the bench during deliberations over the full court. “The convention is that dissent is not expressed or brought on record,” he said.
The proceedings also witnessed a spat when government counsel Ahmed Raza Qasuri objected to the presence of Barrister Aitzaz Ahsan as amicus curiae (friend of the court) on the court’s request.
“Aitzaz Ahsan is not entitled to appear as amicus because he is a party and hostile to the president,” Mr Qasuri said.
Taking exception, Barrister Ahsan asked if he should construe that Mr Qasuri’s statement was as a threat to him from the president. He withdrew as amicus curiae in protest, saying he was not afraid of anything outside the court, but he did not want to vitiate the atmosphere inside the court and left the courtroom.
However, Justice Bhagwandas called him back and said the court had declined to accept his request not to appear as amicus.
Akram Sheikh referred to a statement submitted by the president’s counsel that the term of the president would expire on Nov 15 and said the president had missed the ‘bus of his re-election’ because the last date to commence proceedings for re-election had expired on Sept 11.
“Tenure of the president for holding elections for a second term has run out and now Senate Chairman Mohammedmian Soomro should take over and make arrangements for the elections,” he said.
He argued that the President to Hold Another Office Act, 2004, militated against Article 41(7) of the Constitution and discriminated among people occupying similar offices, similar incumbents and among army personnel.
