ISLAMABAD: A controversial amendment in the presidential election rules that allows convicts, mentally-deranged persons and government servants to run for the office of president — enacted a decade ago to please retired Gen Pervez Musharraf — still holds the field.
According to former Election Commission of Pakistan (ECP) secretary Kanwar Dilshad, this stipulation could theoretically allow ousted prime minister Nawaz Sharif to run for president, if Mamnoon Hussain were to step down.
The ECP amended the rule governing presidential elections in September 2007, taking away the provision for disqualification of presidential candidates. The move came less than a month before the Oct 6, 2007 polls, which were comfortably won by Gen Musharraf.
The results of the elections were a foregone conclusion, since key opposition leaders Benazir Bhutto and Nawaz Sharif were in exile at the time.
The amendment in the presidential election rules, which is still in force, was kept a secret by the ECP until it was disclosed by then minister for parliamentary affairs, the late Dr Sher Afgan Niazi.
In ironic twist, Musharraf-specific amendment may be only way Sharif can run for high office again
Under the defunct Section 5(3)(a) of the presidential election rules, returning officers were empowered to conduct a summary inquiry and reject any nomination paper if they felt a candidate was disqualified under the Constitution to be elected as president. The entire section was simply removed.
The justification for the hastily-enacted amendment was that it was meant to bring the rule in conformity with two Supreme Court judgements from 2002 and 2005. Former chief justice Iftikhar Mohammad Chaudhry, who would go on to lead a movement for the restoration of the judiciary against Gen Musharraf, was a member of both benches.
The ECP’s justification did not satisfy many observers, who believed that if the rule change was made in the light of the SC judgements, why did the ECP wait several years before promulgating it weeks ahead of the controversial presidential poll, when it would explicitly favour Gen Musharraf.
It was on a petition filed by the Pakistan Lawyers Forum that a five-member bench of the Supreme Court — headed by then chief justice Nazim Hussain Siddiqui and consisting of Justice Iftikhar Mohammad Chaudhry, Justice Javed Iqbal, Justice Abdul Hameed Dogar and Justice Faqir Mohammad Khokhar — had rejected the argument that the army chief could not assume the office of 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 office of the president.
However, a senior official of the ECP told Dawn that there was no need to restore Section 5(3)(a) of the presidential election rules anymore.
He claimed that the situation was different in 2007, when many clauses of the Constitution were held in abeyance, and pointed out that Article 41(2) of the Constitution was very clear. It reads: “A person shall not be qualified for election as president unless he is a Muslim of not less than 45 years of age and is qualified to be elected as member of the National Assembly.”
Additionally, the ECP, in July 2013, began obtaining declarations from presidential candidates affirming that they fulfilled the qualifications specified in Article 62 of the Constitution and that they were not prevented by any of the disqualifications specified in Article 63, or any other law, from being elected as the president of Pakistan.
But Mr Dilshad, who was ECP secretary in 2007, rejected the official’s claim that certain clauses of the Constitution were suspended in September 2007.
He said that the amendment was made in line with two judgements of the apex court, adding that there was no pressure from the military at the time.
In his opinion, the ECP would have to seek a judicial review to make the disqualification clause applicable for the presidential candidates.
Answering a question, he said that Nawaz Sharif, who had been disqualified under Article 62, could still contest elections for the office of the president, thanks to this loophole.
Published in Dawn, September 18th, 2017