23 September, 2014 / Ziqa'ad 27, 1435

ISLAMABAD: Believe it or not, convicts, mentally deranged persons and government servants can still contest election to the office of the president without fear of being disqualified.

The Election Commission of Pakistan (ECP) amended the rule governing the presidential election on Sept 10, 2007, to take away the provision for disqualification of presidential candidates --- less than a month before the polls comfortably won by the then military ruler, Gen Pervez Musharraf. Key opposition leaders Benazir Bhutto and Nawaz Sharif were in exile in the United Kingdom and Saudi Arabia respectively.

The amendment in the presidential election rules, which is still in force, was kept a guarded secret by the ECP until it was disclosed by the then minister for parliamentary affairs, Dr Sher Afgan.

Under the defunct section 5(3)(a) of the presidential election rules, the returning officer was empowered to conduct a summary inquiry and reject any nomination paper on satisfaction that the candidate concerned was disqualified under the Constitution to be elected as president. The section was simply struck off.

The justification for the abrupt amendment was that it was meant to bring the rule in conformity with two judgments of the Supreme Court passed in 2002 and 2005. Interestingly, incumbent Chief Justice Iftikhar Mohammad Chaudhry was a member of both the benches.

The justification, however, did not satisfy many who believed that if the change in the rules in light of the judgments was at all required why the ECP kept sleeping over it for years and came out with it weeks before the election to explicitly favour Gen Musharraf.

Chief Election Commissioner Justice (retd) Fakhruddin G. Ebrahim said he could not offer any comment because he would have to go through the record to see as to what had been done in 2007. “This seems to be something very important, but I do not know the exact position at the moment,” he remarked.

An eight-member bench of the Supreme Court, headed by then Chief Justice Sheikh Riaz Ahmad, and comprising Justice Munir A. Sheikh, Justice Iftikhar Mohammad Chaudhry, Justice Qazi Mohammad Farooq, Justice Mohammad Ajmal, Justice Deedar Hussain Shah, Justice Hamid Ali Mirza, Justice Abdul Hameed Dogar and Justice Mohammad Nawaz Abbasi on a petition filed by Qazi Hussain Ahmad, the former chief of Jamaat-i-Islami, challenging the referendum order of April 27, 2002, that disqualification clauses listed under Article 63 of the Constitution were not applicable to the president’s election.

“The disqualifications listed in Article 63 cannot be read into Article 41(2) in view of the judgments of this court in Aftab Shabaan Mirani v president of Pakistan (1988 SCMR 1863) which upheld the judgment of the Lahore High Court in the case reported as Mohammad Rafiq Tarar v Justice Mukhtar Ahmad Junejo (PLD 1998 Lahore 414). The same view was also expressed in Mohammad Shahbaz Sharif v Muhammad Altaf Hussain (PLD 1995 Lahore 541,” the judgment reads.

On a petition filed by the Pakistan Lawyers Forum, a five-member bench of the Supreme Court headed by the then Chief Justice Nazim Hussain Siddiqui and comprising Justice Iftikhar Mohammad Chaudhry, Justice Javed Iqbal, Justice Abdul Hameed Dogar and Justice Faqir Mohammad Khokhar rejected as untenable the argument that Chief of the Army Staff could not have assumed the office of the president because of the definition of the “services of Pakistan” in Article 260 of the Constitution and the disqualifications in respect of such persons contained in Article 63, holding that these had no application to the president.

“The provisions of Article 63 (1) (d) have been made applicable to the continuation in office of the President after Dec 31, 2004, by virtue of the proviso to clause (7) of Article 41, which was inserted by 17th Amendment. Any other clause or paragraph of Article 63 of course does not apply to the president since it is a settled law that the president is only required to be qualified to be a member of parliament (as provided by Article 62) and is consequently not hit by the disqualifications contained in Article 63 of the Constitution. The argument of the petitioners that the president is subject to all the disqualifications contained in Article 63 of the Constitution ignores the settled law on this point as discussed and upheld most recently in Qazi Hussain Ahmad’s case,” the court observed.


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