ISLAMABAD, Sept 25: A government counsel on Tuesday informed the Supreme Court that Gen Musharraf would continue to stay as army chief if he was not re-elected president for a second term.
“If he loses, President Musharraf will continue to remain in uniform till the time another army chief is appointed by the new president,” Attorney-General Malik Mohammad Qayyum submitted to a nine-member bench hearing petitions against President Musharraf holding two offices.
He was replying to a question by Justice Javed Iqbal who was struck by the big ‘if’ in a statement filed by president’s counsel Sharifuddin Pirzada on September 18 which said Gen Musharraf would step down as army chief if re-elected president for the second term.
“Gen Musharraf is not asking to continue as president for the next-five year term, rather he was contesting the presidential election in a normal manner,” the AG said.
“Why are opposition parties, which claim to have been the champions of democracy, clamouring on president’s election if a military man is asking for votes in a democratic way,” Malik Qayyum asked, and said there was no age-limit for the retirement of a four-star general of the Pakistan Army under the Army Act, though they had tenures which could be extended.
Justice Javed Iqbal observed that the AG was referring to the judgments to establish his point which were based on the doctrine of necessity that had been buried now. “It is settled that now no decision will be given on the basis of this doctrine. The entire issue revolves round the 17th Constitutional Amendment which has been made part of the Constitution by parliament,” he said.
Justice Sardar Mohammad Raza Khan pointed out that the most unpopular doctrine of necessity was considered, applied and decided by courts, but asked if it could also be determined by parliament.
“Parliament can legislate on any law unless it violates the Constitution,” the AG replied.
Justice Rana Bhagwandas, heading the bench, observed that prima facie, these petitions appeared to be maintainable as these had far-reaching consequences for the national history.
He said he had doubts about the authority of the chief election commissioner as returning officer for the presidential election to decide intricate questions, including the validity of the President to Hold Another Office Act, 2004, at the time of scrutiny of nomination papers.
“If the returning officer enjoys such power whether similar authority also vests with the RO appointed to hold elections to the National Assembly,” he observed.
Justice Sardar wondered how could the CEC refuse nomination papers of other government servants who, according to the media, had applied for the nomination papers to contest the election.
The attorney-general explained that all persons in the service of Pakistan were not entitled to contest the presidential election, except those who had been exempted by the law.
He emphasised that constitutional institutions should be allowed to function and jurisdiction of the Election Commission should not be pre-empted. He said the court should not perform the constitutional role of other institutions by making them redundant as it did in the chief justice’s case when a constitutional body — the Supreme Judicial Council — was made redundant.
Referring to the petitions of JI chief Qazi Hussain Ahmed and PTI chief Imran Khan, the AG said he failed to understand whose battle they were fighting when they were not candidates in the elections.
“Because of the stature of President Musharraf this case has become important; otherwise it is an ordinary election dispute which should be decided by the Election Commission,” he argued.
Malik Qayyum said the dual-office act was a one-time law and it would expire on Nov 15. “If it is a bad law, then somebody should have approached a court of law. Two years have gone, but nobody has challenged it. Individual matters should be heard in the high court first. I am all for judicial activism, but there should be some limit to it,” he said.
