Courts not revolutionary forums, says SC judge : Wrong decisions cause revolts: counsel
By Nasir Iqbal
ISLAMABAD, Oct 25: A senior judge of the Supreme Court said on Thursday that courts were not revolutionary forums and they only complimented governments in blocking revolutions from outside which could be bloody and dangerous.
“If we shirk from our duties then it would mean damaging the rulers and the governments by way of encouraging the people to bring revolutions like that of France, China, Russia, etc,” Justice Khalil-ur-Rehman Ramday observed.
An 11-member bench of the Supreme Court, headed by Justice Javed Iqbal, was hearing petitions challenging the acceptance of Gen Pervez Musharraf’s nomination papers for the presidential election.
Counsel A.K. Dogar reminded the court that wrong decisions also caused revolts and revolutions and cited the example of the Dred Scott versus Sandford case of 1857.
The US Supreme Court had in the case ruled that the people of African descent could never be citizens of the United States and that Congress had no authority to prohibit slavery in federal territories. The decision had fuelled turmoil which ended only after a long and bloody civil war in which a large number of people lost their lives.
The observation came when Barrister Aitzaz Ahsan, the counsel for Justice (retd) Wajhuddin Ahmed, observed that the Supreme Court was duty bound to preserve, protect and uphold the Constitution and not to protect President Musharraf or Justice Wajihuddin.
Barrister Ahsan concluded his arguments by stating that the electoral college which elected Gen Pervez Musharraf for another five-year term was not competent to do so. Besides, Articles 62 and 63 of the Constitution dealing with qualifications and disqualifications of the member of parliament would also apply to President Musharraf.
The judgments on the 2002 Qazi Hussain Ahmed’s petition on holding Article 63 not applicable to the president and the 2005 Pakistan Lawyers Forum petition against the Seventeenth Constitutional Amendment were per incurium (law made by way of ignorance).
The bench will resume hearing on Monday when counsel Sardar Abdul Latif Khosa, Barrister Farooq Hassan and A.K Dogar will present their arguments; to be followed by Attorney-General Malik Mohammad Qayyum and president’s counsel Sharifuddin Pirzada.
Justice Ramday said the court had to settle three issues — what was the actual interpretation of Article 41(2) (qualification to become president) and its consequential effect on Article 62 (qualification to become the member of parliament) and Article 63 (disqualifications) to reach a conclusion.
“If the court finds that Articles 62 and 63 will be applicable then question will arise should judgments on the Qazi Hussain Ahmed and Pakistan Lawyers Forum petitions be declared contrary and the court then revisits these two judgments. If they did what would be its effect on the present case.”
Barrister Ahsan said if the court had arrived at the conclusion that Articles 62 and 63 would apply then it had to revert to the situation of September 27 when nomination papers for the presidential election were filed in the Election Commission.
Justice Javed Iqbal observed that morally parliament, which was completing its five-year tenure, should have refused to elect the president for the second term. He said that the proper forum for dealing with political questions was always parliament and the people through peaceful and fair elections.
Mr Ahsan said the Constitution should be applied cruelly and surgically by saying to the president that he had completed the five-year term and “we need no more transition”. Therefore, he said, this malignancy had to be excised from the body politic which was in the hands of the judiciary and “you are not only the judges but also to be judged”.
He said the election to the office of the president as mentioned in Article 41(7) had to be taken place after the expiry of five-year term and assemblies with expiring mandate were not competent to elect a president for another term by denying the sovereign i.e. the people as delegates of the God who had the right to elect their president.
“Such an exercise of denial of franchise amounts to fraud on the Constitution and therefore mala fide.
Justice Ramday also asked that if Article 63 was not applicable then what was the need of making the President to Hold Another Office Act, 2004? The act was an admission that Article 63 was applicable, he observed.
Justice Javed Buttar also expressed his surprise over how a person would qualify if he suffered from disqualification.
At the outset, Justice Mohammad Nawaz Abbasi said that at the time of the filing of nomination papers by the president, the Qazi Hussain and PLF judgments were in the field. “Now the question would arise should we determine the eligibility of the president and if we decide in favour of the petition should we give retrospective effect to the verdict or prospective.”
Justice Ramday said: “We always are in a problem because we interpret the Constitution by making it a person specific and then we do not apply our mind independently. What is the purpose of Article 63 if it is redundant otherwise.”
