By Iftikhar A. Khan ISLAMABAD, Oct 3: Chief Justice Iftikhar Mohammad Chaudhry on Wednesday reconstituted a Supreme Court bench hearing three identical petitions challenging Gen Pervez Musharraf’s candidature for the presidential election, after a member of the nine-judge bench he had earlier formed declined to sit on it.
Justice Sardar Raza Khan opted out of the bench, saying he had already given his view that Gen Musharraf was disqualified to contest the election.
Justice Raza was one of the three judges who had dissented with the majority decision of a nine-member Supreme Court bench which had held that petitions challenging the holding of two offices by Gen Musharraf were not maintainable.
The reconstituted bench, headed by Justice Javed Iqbal and comprising Justice Abdul Hameed Dogar, Justice Khalilur Rahman Ramday, Justice Mohammad Nawaz Abbasi, Justice Faqir Mohammad Khokar, Justice Tassaduq Hussain Jilani, Justice Nasirul Mulk, Justice Raja Fayyaz, Justice Syed Jamshed Ali and Justice Ghulam Rabbani, will hear the petitions on Thursday.
On a request of one of the petitioners, Justice (retd) Wajihuddin Ahmed, for a full court, a Supreme Court statement said: “The Chief Justice has observed that if the petitioner still insists to constitute a Full Court, the request can be considered after Eidul Fitr as some of the judges of the Supreme Court are on leave.”
After the withdrawal of Justice Raza, the remaining eight judges heard the case and issued a notice for Thursday to the attorney-general for interpreting Articles 41 (2), 41 (7), 44 (3), 62 and 63 and the rules for presidential election.
Senior lawyer Hamid Khan, representing presidential candidate Justice Wajihuddin, maintained that there was no level-playing field for candidates because one of them wanted to contest the election in a military uniform.Asserting that the office of the president was political one, he said Gen Musharraf could not take part in political activities because he was in service of Pakistan. He argued that Gen Musharraf’s election to the office would be repugnant to Article 17 (2) of the Constitution because it would breach the principle of equality.
The court at one stage said the 17th constitutional amendment allowed Gen Musharraf to hold two offices. Justice Khokar said Gen Musharraf’s qualification had to be determined from the date of his filing nomination papers.
Hamid Khan said no election could take place before the expiry of the president’s term on Nov 15. “The Constitution does not envisage any election before the expiry of term,” he maintained. He said if the outgoing assemblies were allowed to elect a president, it would lead to many ‘absurdities’ in future because this cycle would continue.
When the court pointed out that Justice Wajihuddin himself was a candidate for the election, the counsel said: “We have done it under protest.”
When the court asked if there was a legal embargo on election before the expiry of the presidential term, Hamid Khan replied in affirmative and said Article 41 (3) contained a clear bar. He said the president had to be elected by a new electoral college to be inducted after general election. He said the presidential election, under the law, could be held within 30 days of the general election.
Referring to the amendment to the rules for presidential election, he said the Chief Election Commissioner had arbitrarily changed the rules for a specific person.
Senator Abdul Lateef Khosa, the counsel for PPP presidential candidate Makhdoom Amin Fahim, said the present assemblies were not competent to elect president for another term of five years. He said parliamentary sovereignty demanded that the president should be elected by new assemblies. “The present assemblies cannot thrust a president on the coming assemblies.”
He said the federation comprised the president, prime minister and parliament, and the president could not be segregated from the federation.
“You should talk about national reconciliation,” Justice Khokar said in a light mood, in an apparent reference to the proposed National Reconciliation Ordinance.
Dr Farooq Hassan, the counsel for petitioner Rehan Wasim, said the entire process had gone invalid after the amendment to the presidential election rules by the CEC.
