LAHORE: Justice Falak Sher, a judge on the nine-member Supreme Court bench that had dismissed on Sept 28 petitions challenging the holding of two offices by Gen Pervez Musharraf, has ruled that the general is not qualified to contest the presidential election.
Justice Sher was one of the six judges on the bench who had declared non-maintainable the petitions filed by opposition politicians and lawyers. Three judges had dissented with the majority decision.
Justice Sher gave his opinion on Gen Musharraf’s qualification to contest the election in his detailed judgment released here on Wednesday. “... I am of the considered opinion that President Gen Pervez Musharraf is not qualified to contest the ensuing presidential election,” he wrote while concluding his verdict.
The judge also said that the President to Hold Another Office Act, 2004, was against the basic structure of the Constitution. He said the act could not override the constitutional bar for a member of the armed forces.
“The holder of the presidential office perforce is required to perform certain political functions being Head of the State which would be incongruous with the Oath of Office of the Chief of Army Staff...,” the judge wrote.
The judgment explains the reasons that made the judge concur with the majority view against the petitions on grounds of maintainability. Justice Sher said Gen Musharraf’s candidature “by no stretch of imagination could envisage enforcement of any of the petitioners’ spelt out fundamental right ... especially when some of them had been instrumental in furnishing a foothold to the regime”.
“...They had the right and opportunity to pull the carpet from underneath the pedestal of power by repealing it (17th Amendment) in the event of being averse to the same. Thus (their act) renders the petitions not maintainable with a right to the petitioners to avail appropriate remedies...,” the judge wrote.
Talking to Dawn, Hamid Khan, the counsel for one of the petitioners before the bench, said Justice Sher’s judgment endorsed their point of view. The judge had said the petitioners should have moved the appropriate forum – the Election Commission of Pakistan – before approaching the Supreme Court, he added.
Answering a question on Justice Sher’s views on qualification of Gen Musharraf, Mr Hamid said it was right that judges did not normally go into questions raised in petitions found non-maintainable. “May be the judge thought the question involved a matter of national importance and he should go into it,” he added.
