ISLAMABAD, Oct 30: The counsel for a petitioner told a Supreme Court bench on Tuesday that President Gen Pervez Musharraf had allowed the armed forces to interfere in civilian affairs and that he was virtually ruling the country with the help of corps commanders in the name of poor people.
“Decisions in the country are still made according to what the corps commanders say,” A. K Dogar, representing Prof (Dr) Anwarul Haq, told the 11-member bench, hearing petitions challenging Gen Musharraf’s candidature for the office of president.
The counsel alleged that the commanders had created a facade of democracy because Prime Minister Shaukat Aziz himself had been quoted as saying that he did not have power to transfer even a deputy secretary.
He said the office of president was a political office and the army chief could not indulge in politics. But, he said, Gen Musharraf had disobeyed everything, even the directives of the apex court in the Zafar Ali Shah case in which his military takeover had been validated.
He said the corps commanders had in a meeting decided to declare emergency after removing the government of Nawaz Sharif. Gen Musharraf’s proclamation of emergency was driven by ‘lust of power and revenge’, he added.
Citing Article 41(1) of the Constitution, Mr Dogar accused the president of violating provisions of the Constitution by acting as the head of a political party, described as the king’s party some people. “If a person is charged with violation of the Constitution, he can be removed through impeachment in parliament,” he said. He questioned why was Gen Musharraf allowed by the Election Commission to contest the presidential election when he had been accused of having violated the Constitution.
He alleged that President Musharraf had used the armed forces for his personal gains and, therefore, he was neither honest, righteous nor ‘amin’ because despite his commitment he had not quit the army post.
About the doctrine of necessity, the counsel said the concept had been introduced by Chief Justice Munir to protect the Constitution and save the system, but it had been misused by allowing the person (Gen Musharraf) to come and destroy the Constitution.
An assembly, he said, could not elect the same person twice as president because it was against democratic norms, adding that the same assembly could elect another president if a sitting one resigned, died or was impeached.
He said that under Article 63 (1-d), the president suffered from inherent pre-election disqualification and, therefore, he was not eligible to contest the presidential polls.
Besides, he added, Article 62 (qualification to become member of parliament) and Article 63 (disqualification) run into each other and were two faces of the same coin.
He said that Gen Musharraf being the Chief Executive of Pakistan had been directed by the Supreme Court in the Zafar Ali Shah case to hand over all powers to civilians, which included doffing his uniform, but he had not complied with the order.
The President to Hold Another Office Act, 2004, he said, was ultra vires of the Constitution because it contradicted Article 63 (1-d) of the Constitution and no subordinate law could overrule the constitutional law.
He said the man holding the office of president was also holding an additional office of Chief of Army Staff, which was a clear violation of the said provisions of the Constitution. How could parliament make a law under the article that was not operative?, he asked. When the president held the office and relinquished the office of Chief Executive all other provisions of Article 41 (7 b) would become operative and, therefore, the president was subject to all limitations provided by the Constitution, he said.
APP adds: The bench will conclude the hearing of the petitions on Friday. Justice Javed Iqbal made it clear that the hearing would be completed by Friday because a member of the bench would not be available next week.
Attorney-General Malik Mohammad Qayyum, who had started his arguments on Monday, was due to resume arguments on Tuesday but he requested the bench to give an opportunity to the counsel for Dr Haq first.
Mr Qayyum will now resume his arguments on Wednesday.
