ISLAMABAD, Oct 4: A 10-member bench of the Supreme Court hearing petitions challenging the eligibility of Gen Pervez Musharraf for the presidential election will on Friday give its verdict on a plea for staying the polls after completion of arguments by the two sides.
Justice Javed Iqbal, who is heading the bench, said on Thursday that the court would not take into consideration the repercussions if it found that staying the poll process was a legal and constitutional requirement.
The bench includes Justice Abdul Hameed Dogar, Justice Khalilur Rehman Ramday, Justice Mohammad Nawaz Abbasi, Justice Faqir Mohammad Khokhar, Justice Tassaduq Hussain Jillani, Justice Nasirul Mulk, Justice Raja Fayyaz Ahmed, Justice Syed Jamshed Ali and Justice Ghulam Rabbani.
The bench asked the two sides to confine their arguments to the grant of interim stay.
Justice Iqbal maintained that five judges of the court had dismissed petitions of Qazi Hussain Ahmed and Imran Khan against Gen Musharraf’s candidature only on the question of maintainability, and not on the merit of the case.
Hamid Khan, the counsel for Justice (retd) Wajihuddin Ahmed, requested the court to stay the election, saying once completed the process could not be challenged. In case Gen Musharraf won the polls, he would argue that he had been elected and the election could not be challenged, he said.
He said the electoral college would have sufficient time to elect a president if the election was put off till the disposal of the petitions challenging Gen Musharraf’s candidature. He said staying the polls would not be disadvantageous for anybody, but would help ensure justice. On the other hand, he said, if an ineligible person was allowed to contest the election, it would cause irreparable loss to other candidates.
The counsel said the matter should be decided in accordance with the Constitution, irrespective of implications. He said interpretation of articles of the Constitution relevant with the presidential election was required.He contended that Gen Musharraf suffered from inherent disqualification to be a candidate for the office of president and the amendment made to Rule 5 of the Presidential Election Rules, 1988, was contrary to the Constitution.
He said the outgoing assemblies could not elect a president for another term and the election could not take place before Nov 15 when the president’s present term would expire.
Justice Iqbal asked Hamid Khan to state reasons for staying the election because it could be done only under extraordinary circumstances. The counsel said halting the election was in the national interest and it would prevent a ‘chaotic situation’.
Justice Mulk asked if there would be a remedy available after completion of the electoral process. Justice Khokar said if the election was postponed what was the guarantee that the polls would be held on time and it would not create more chaos.
Hamid Khan argued that there would be no chaos because the assemblies with fresh mandate would elect a new president. It would also regularise the presidential election process for future, he said.
Attorney-General Malik Mohammad Qayyum said the presidential election was being held in accordance with provisions of the Constitution and there was no reason to postpone it. He said the petitioners had vested interests and wanted to destabilise the system.
He said the president had submitted a statement in the court that he would doff his military uniform after his re-election and before taking fresh oath. But if the election was postponed, he said, the president would remain in uniform till March.
Justice Ramday said it was not a question of postponing the election for a month and asked if it would make a difference if the vote was postponed for a few days.
“The whole world will laugh on us if the election is postponed. By staying the polls, we will stop a constitutional process which should not be done,” said Mr Qayyum. Staying the election would be interference in the electoral process.He said the court should hear the case on merit and decide it before the poll. He said six judges of the Supreme Court had already held that such petitions were not maintainable and, therefore, there was no reason to stay the election.
Sardar Abdul Latif Khosa, the counsel for PPP’s Makhdoom Amin Fahim, said the court had to decide the fate of the nation by deciding once and for all if a man in uniform could contest the election. He said the polls should be stayed till this question was decided. Many complications would arise if the election was not stayed, he said.
Dr Farooq Hassan, the counsel for petitioner Wasim Rehan, said the entire process of nominations for the presidential election was invalid. He said the Chief Election Commissioner had amended the poll rules to benefit one person, therefore it was a case of legitimacy and if the election was not stayed, the status would continue.
Justice Iqbal said the plea for staying the election would be decided on Friday after completion of arguments by both sides. Sharifuddin Pirzada and Wasim Sajjad will argue against staying the polls.
During the course of hearing, Justice Iqbal took strong notice of remarks of Justice Wajihuddin about the bench and said he had “crossed the limits”.
He asked Justice Wajihuddin’s counsel why should contempt of court proceedings be not initiated against him for his objection over the composition of the bench. “Why should a contempt of court notice not be issued to him?”
The judge asked if the court should stand hostage to one of the groups. The court, he said, could not reconcile the situation where a candidate was raising objections against the bench and his counsel was reposing faith in it.
Hamid Khan said he did not know what his client had said but he apologised if the statement was contemptuous.
Justice Ramday said what had been happening in the country after March 9 was exceptional. He said everybody, including the media, had the right to comment or debate but they should do it in a responsible way.