ISLAMABAD, Oct 29: In a bid to seek technical knockout of petitions challenging the acceptance of Gen Pervez Musharraf’s candidature for the presidential election, Attorney-General Malik Mohammad Qayyum on Monday questioned the maintainability of the petitions and said the controversy did not involve enforcement of fundamental rights.
“The present petitions are not maintainable because no enforcement of fundamental rights is involved,” Mr Qayyum argued before Supreme Court’s 11-member bench hearing the petitions.
Barrister Aitzaz Ahsan, the counsel for Gen Musharraf’s rival candidate, Justice (retd) Wajihuddin Ahmed, opposed the argument and said the respondents had never raised the question of maintainability during the five days that he had been arguing his case.
Justice Javed Iqbal, who is heading the bench, assured Mr Ahsan that he would be given ample opportunity to rebut the arguments of the respondents.
After the attorney-general concludes his arguments, senior counsel Sharifuddin Pirzada, who is representing the president, and Wasim Sajjad, the federal government’s counsel, will present their arguments.
Dr Farooq Hassan, appearing for MMA leader Liaquat Baloch, concluded his arguments on Monday.
When he was arguing on incompetence of the electoral college to elect the president twice, Justice Khalilur Rehman Ramday observed that if the court held that the same electoral college could not elect the president twice, it would bring chaos and anarchy in the country because the electoral college had to elect a new president in case of a president’s death or resignation.
The bench ordered the listing of a review petition of Prof Dr Anwarul Haq after removing objections raised by the registrar’s office. An appeal of Dr Zahoor Mehdi against the rejection of his nomination papers by the Election Commission was described by the court as misconceived and a joke with the nation.
Presenting his arguments, the attorney-general said President Musharraf was seeking re-election for the first time and the election had been held for his second five-year term and not for a third term.
The relief under Article 184(3) being discretionary, he said, no case for interference in the election of the president had been made out because the electorate had spoken and had overwhelmingly voted for Gen Musharraf and, therefore, its wishes should be respected.
Besides, he said, the presidential election could not be set aside at the instance of a rival candidate who had bagged not even two per cent of the votes.
In view of the constitutional development and the fact that the president would give up his uniform before taking the oath for a second term, which was just a matter of days, interference at this juncture was not merited and would not be in public interest, Mr Qayyum emphasised.
He said that articles 243, 244 and 245 (oath, command and functions of the armed forces) were irrelevant for the purpose of determining the eligibility of Gen Musharraf for the election. The jurisdiction of the Supreme Court to entertain the petition was barred by Article 41(6) of the Constitution because the election of the president could not be questioned before any court, he said.
He said that all questions in respect of the candidature of Gen Musharraf had been decided by the Supreme Court in the cases of Qazi Hussain Ahmed and the Pakistan Lawyers Forum and the decisions were neither per incuriam (decision made in ignorance) nor obiter dicta (statements made or decisions reached in a court opinion which were not necessary to the disposition of the case). In any event, he maintained, no case to revisit these judgments had been made out.
The attorney-general said that even if a different view was taken by the court, it would be applicable in future and would not render without lawful authority the decision taken by the Chief Election Commissioner based on earlier cases.
The president, he said, was qualified to seek re-election in view of the constitutional command contained in Article 41(7) and 44(2) of the Constitution and his candidature could not be subjected to scrutiny.
He said articles 41(7) and 41(8) allowed the Chief of the Army Staff to become the president/elected president and to remain in uniform at least until Nov 15, 2007, and Gen Musharraf, while holding the office of COAS, was qualified for the election.
Article 63 of the Constitution, Mr Qayyum maintained, had no application so far as the candidature of the president under Article 41 of the Constitution was concerned and the president’s disqualification because of being the COAS would not be an issue of public interest as this would come to an end on Nov 15.
He said the petitioner had not been deprived of contesting the election which was his fundamental right, but he could not object to the candidature of other candidates. The candidature of Gen Pervez Musharraf, he added, had not deprived the petitioner of any fundamental rights.
Referring to the judgment of Justice Falak Sher in the Jamaat-i-Islami case last month, Mr Qayyum said when a judge had held a petition non-maintainable how could he go into the merits of the case.
