Judge points out deviation by politicians: 17th Amendment
By Nasir Iqbal
ISLAMABAD, Sept 19: The Supreme Court, hearing identical petitions against President Pervez Musharraf holding two offices, on Wednesday asked why no legislator pointed out any anomaly when the parliament was voting for the relevant amendment.
“It may be a jugglery of words, but how can it be said that the President to Hold Another Office Act, 2004, is for one time when the holder is to continue as the president,” Justice Sardar Mohammad Raza Khan observed and wondered why a writ petition was needed to understand this.
Justice Javed Iqbal was similarly struck by the politicians’ own extra-constitutional deviation reflected in their senior counsel Hamid Khan’s reference to the agreement between the government and the Muttahida Majlis-i-Amal (MMA) to indemnify all actions of the president through the 17th Constitutional Amendment.
Counsel Hamid Khan, representing Jamaat-i-Islami President Qazi Hussain Ahmed and Pakistan Tehrik-i-Insaaf chief Imran Khan, cited the book ‘Dialogue’ authored by S.M. Zafar, suggesting that Article 63(1-d) about disqualifications was non-applicable with effect from December 31, 2004.
He also told the nine-member bench, seized with a set of identical petitions challenging the president’s dual offices, that Imran Khan had moved an application before it to strike down the amendment made on Sept 10 by the Chief Election Commissioner in the President Election Rules, 1988. The application requested the court to make the CEC respondent in the main petitions as the amendment to Article 63 of the Constitution had been made in a secretive manner.
The CEC colluded with Gen Musharraf to help the latter escape disqualification under the Article 63, in a mala fide exercise allegedly on the part of the CEC, the application said.
“The notification was neither made public nor circulated till Sept 17, that too after one of the federal ministers disclosed it to the media,” it said.
Justice Sardar Mohammad Raza Khan recalled that the Election Commission had explained that they had amended the law in line with the judgment of the Supreme Court in the 2002 Qazi Hussain and 2005 Pakistan Lawyers Forum cases.
Hamid Khan said the review petitions in both cases were pending in the Supreme Court, adding that the notification had come on a question on which he had to argue, besides the provisions relating to the qualifications and disqualifications were never discussed in these judgments, though passing remarks had been made.
Justice Faqir Mohammad Khokhar observed that rules could not neutralise the effect on Article 41 (the office of the president). “If Article 63 is applicable then it is applicable and cannot be made non-applicable through simple amendments to the rules.”
Hamid Khan contended that Gen Musharraf was not eligible to contest the presidential election for the next term because he had already served two terms -- first he assumed the office by removing Rafiq Tarar on June 20, 2001, under the President Succession Order, 2001, Chief Executive Order 3 of 2001 without assigning any reason and, secondly, when he became president after a referendum.
He said that according to the Army Act and the Constitution, the president had completed his army service in respect of age and as well as service as a general because his three years’ term as the army chief had expired on October 2001, while he attained the age of 60 on August 10, 2003.
“Therefore, he cannot continue with the army post,” he argued.
The age requirement for a general in service is 60 years or 35 years of service under the Pakistan Army Regulations.
Justice Faqir Khokhar, however, clarified that the post of army chief was not regulated through the regulations but through the Constitution as it was a constitutional office.
Likewise, under the 17th Constitutional Amendment his tenure as the army chief had also been expired on December 31, 2004 and, therefore, the question to hold the post after that date did not arise, he said.
Criticising the dual-office law, Hamid Khan said the person-specific amendment to the Constitution amounted to violation of fundamentals of the Constitution because the amendment to allow the president to retain the two offices violated articles 25 and 260 of the Constitution.
“One person cannot hold two constitutional offices simultaneously at a time in substantive capacity which is of permanent nature,” he said.
Towards the end of Wednesday’s proceedings, the bench declined to accept the request of the former vice-chairman of the Pakistan Bar Council (PBC), Ali Ahmed Kurd, to initiate contempt of the court proceedings against Advocate Ahmed Raza Qasuri for threatening one of the amicus curiae, Aitzaz Ahsan, assisting the court in the instant petitions.
