ISLAMABAD, Aug 11: Attorney-General Malik Mohammad Qayyum on Saturday said a simple waiver by parliament through an act would be sufficient to allow President Gen Pervez Musharraf to retain his uniform after his election for another term.
“A simple majority of parliament can allow the president to keep his uniform for another term as president like it did in 2004 when it passed President to Hold Another Office Act,” Malik Qayyum explained to Dawn.
President Gen Musharraf recently announced that he would seek re-election between Sept 15 and Oct 15 in uniform, claiming that he was constitutionally entitled to hold the dual posts till the end of this year after which he would take a decision on uniform.
Malik Qayyum said there was no constitutional or legal bar on President Gen Musharraf’s election for a second term. “The date for president’s re-election would, however, be determined by Chief Election Commissioner Qazi Mohammad Farooq and whichever assembly would be present, would elect Musharraf for another term,” he said.
Parliamentary Affairs Minister Dr Sher Afgan claimed that President Gen Musharraf would not need any law to continue in uniform for another term, what to talk of constitutional amendment.
He referred to a ‘non-obstante’ clause in Article 41(7) in the Constitution and said the constitutional provision authorised the president to keep the uniform for another term since it had done away with the requirement of Article 43 of the Constitution under which the president could not hold any office of profit in the service of Pakistan or occupy any other position carrying the right to remuneration for the rendering of services.
Clause 7 of Article 41 was substituted by the Legal Framework Order, 2002, and validated through the Constitution (Seventeenth Amendment) Act, 2003, on Dec 31, 2003.
Article 41(7-b) suggests: “The president having received the democratic mandate to serve the nation as President of Pakistan for a period of five years shall, on relinquishing the office of the Chief Executive, notwithstanding anything contained in this Article or Article 43 or any other provision of the Constitution or any other law for the time being in force, assume the office of President of Pakistan forthwith and shall hold office for a term of five years under the Constitution, and Article 44 and other provisions of the Constitution shall apply accordingly.
“Provided that paragraph (d) of clause (1) of Article 63 shall become operative on and from the 31st of December 2004.”
Article 44 that deals with the term of office of the president disapproves holding the office of the president for more than two consecutive terms. Likewise, Article 63(1-d) also disqualifies a member of parliament if he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder.
Dr Sher Afgan said the articles that governed the election of the president did not apply under the non-obstante clause. He recalled that a bench of the Supreme Court comprising then Chief Justice Nazim Hussain Siddiqui, sitting Chief Justice Iftikhar Mohammad Chaudhry, Justice Javed Iqbal, Justice Abdul Hameed Dogar and Justice Faqir Mohammad had dismissed five identical petitions challenging the dual office Act of 2004.
Besides, the election of the president could not be challenged in any court or forum, he said, and conceded that the electoral college for the election of the president was the members of the assemblies and not the assemblies themselves.
However, Supreme Court Bar Association’s former president Tariq Mehmud said Gen Musharraf had earlier been elected as president through referendum, but now the election would be held strictly under the Constitution in which all provisions relating to the qualification as well as disqualification would become relevant.
Therefore, he said, Gen Musharraf could not be re-elected for the second term without a constitutional amendment.