The day of the General: •Musharraf to run for president in uniform •Petitioners, lawyers’ leaders livid
ISLAMABAD, Sept 28: The Supreme Court on Friday dismissed on technical grounds petitions against Gen Pervez Musharraf holding two offices, giving a legal boost to the president to contest the election for the second term in uniform.
It was a majority (six-three) verdict by a nine-member bench headed by Justice Rana Bhagwandas.
The bench threw out the petitions challenging the dual offices of the army chief and the president held by Gen Musharraf, declaring that these were not maintainable. In other words, the merit of the cases which had been debated for two weeks along with the issue of maintainability, became irrelevant as the majority of judges dismissed the challenge by declaring that the petitions could not be entertained at this forum.
After suffering a series of setbacks from the superior judiciary over the past few months, such as the restoration of the chief justice, acceptance of Nawaz Sharif’s right to return from exile and bail to Javed Hashmi, President Musharraf received the first good news from the Supreme Court.
Government supporters termed the verdict a ‘great victory’ and said the day clearly belonged to Gen Musharraf.
The verdict received an immediate adverse reaction inside the packed courtroom the moment the bench rose for the day. Though the short order was heard in pin drop silence by scores of lawyers and some political leaders, the courtroom echoed with slogans of ‘shame, shame’ and ‘go Musharraf go’ which later turned into real protest as lawyers and supporters of the petitioners walked out to join a much bigger crowd.
Some of the lawyers described the judgment as revival of the doctrine of necessity in the country’s chequered judicial history.
Former vice-chairman of the Pakistan Bar Council Ali Ahmed Kurd asked lawyers to lay siege to the Election Commission on Saturday -- the day of scrutiny of nomination papers of the presidential candidates.
“For reasons to be recorded later, as per majority view of 6 to 3, the petitions are held to be not maintainable within the contemplation of Article 184(3) of the Constitution (court’s original jurisdiction under the fundamental rights),” the judgment announced by Justice Rana Bhagwandas said.
“As per minority view of Justice Rana Bhagwandas, Justice Sardar Muhammad Raza Khan and Justice Mian Shakirullah Jan, all these petitions are held to be maintainable under Article 184(3) and hereby accepted. As per majority view these petitions are hereby dismissed as not maintainable,” he said.
Attorney-General Malik Mohammad Qayyum appreciated the judgment and said it was a correct decision and the dissent in the bench reflected that judges had applied their independent mind.
Soon after the verdict, police escorted president’s counsel Sharifuddin Pirzada and the AG out of the courtroom to ensure their security from the wrath of a furious crowd outside.
Reacting to the judgment, PML (N) acting president Makhdoom Javed Hashmi said the infamous doctrine of necessity, under which all military rules had been validated by the apex court, was still continuing. “We thought the judiciary has become totally independent, but this impression proved to be wrong,” he deplored.
He announced that a campaign would be launched against the regime and for complete independence of the judiciary.
MMA parliamentarian Farid Paracha said the judgment did not reflect the aspiration of the people, rather it strengthened the rule of a military dictator. He said the people of Pakistan had rejected it, adding that the MMA would file a review petition. He said that the struggle for restoration of genuine democracy in the country would be intensified.
Supreme Court Bar Association president Munir A. Malik said it was not a verdict which had been unexpected. “Though the July 20 judgment of restoring Chief Justice Iftikhar Mohammad Chaudhry was a step ahead, we still have a long way to go for complete independence of the judiciary. Although the judgment is disappointing, our battle is not over,” he added.
He said the three dissenting judges would always be remembered as Justice A.R. Cornelius and added that history would record its own conclusion regarding the other six judges.
Senior Advocate Hamid Khan said judges had abdicated their jurisdiction in deciding the matter, adding that the order was a continuation of the Tameezuddin and Dosso cases (in which the concept of the doctrine of necessity was introduced).
However, he said, the judgment would not dampen lawyers’ struggle which would continue till the end of dictatorship.
Advocate Akram Sheikh said that by dismissing the petitions under the cover of technicality, the Supreme Court had resurrected the infamous decision in the Maulvi Tameezuddin case dismissing the petition on technical grounds.
He said he had been asked by his client (Jamaat-i-Islami) to move a review petition against the decision which he would file on Monday.
Earlier, Advocate Akram in his arguments before the court emphasised that it was the duty of the court to scrap the uniform of President Musharraf because it had allowed him to keep the uniform. Any validation by the court, he said, would not be accepted.
Advocate Hamid Khan said President Musharraf’s holding of two offices derogated the constitutional provision of equality before the law because he was holding the gun.
A.K. Dogar said that Article 63(1-d) allowed President Musharraf to hold one office, but the President to Hold Another Office dealt with the dual-office law which was against constitutional provisions.
Abdul Hafeez Pirzada, appearing as amicus curiae, said: “We as a nation have reached the final stage of transition where there is an opportunity to all candidates for the presidential election that they would enter upon the office of the president as civilians.”