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SC can intervene in presidential poll, says judge

November 01, 2007

ISLAMABAD, Oct 31: A senior judge of the Supreme Court asked on Wednesday why should the court not intervene in an issue of national importance involving the highest office in the country when it was frequently intervening in issues of public interest.

“Aren’t we intervening every day on (issues like) traffic jams and price hike or has other matters or the election of the president become so unimportant that we should not intervene,” Justice Khalilur Rehman Ramday, a member of an 11-judge bench said, adding that it had already been held by the courts that technicalities never deterred the judiciary from dispensing justice.

Headed by Justice Javed Iqbal, the bench is hearing petitions challenging the acceptance of Gen Pervez Musharraf’s candidature for the presidential election.

Justice Ramday’s remarks came when Attorney-General Malik Mohammad Qayyum, presenting his arguments on the petitions’ maintainability, said the court should not be bogged down with the idea of enforcing fundamental rights by enlarging its jurisdiction when the petitioners had not pointed out infringement of any fundamental right.

Justice (retd) Wajihuddin Ahmed’s petition, the chief government lawyer claimed, was an ordinary election dispute and should, therefore, be settled first at the level of the high court. The apex court normally did not directly entertain disputes bypassing the jurisdiction of the high courts, he said.

The chances of a ruling on the petitions on Friday diminished when the attorney-general told the court that he would conclude his arguments on Thursday and President Musharraf’s counsel Sharifuddin Pirzada and federal government’s lawyer Waseem Sajjad would need one day each to complete their arguments.

Barrister Aitzaz Ahsan, the counsel for the petitioner, also wanted the right of reply to points raised by the respondents.

Earlier, Justice Iqbal suggested that the court expected to give a decision by Friday but hinted at resuming the hearing from Nov 12 if the case was not completed because Justice Raja Fayyaz would not be available next week owing to the wedding of his son in Quetta.

The court made it clear that it was not concerned about the deadline of Nov 15 when the current term of President Musharraf would end.

In his arguments, the attorney-general said the court would be treading into a political minefield if it went into the question of political justice beyond its jurisdiction in deciding the instant petitions. Had the nomination papers of Justice (retd) Wajihuddin been rejected by the Election Commission, he could have said that he had been deprived of political justice but in this case it appeared that the petitioner intended to deprive another candidate of his right, he said.

Mr Qayyum became irritated when Barrister Ahsan said the other candidate was holding cannon.

“Where are the allegations of rigging when the election to the presidency has already taken place?” the attorney-general asked. He said that Article 184(3) of the Constitution (Supreme Court jurisdiction under fundamental rights) was being misused. Already, he said, 500 to 600 suo motu notices were pending before the court.

“Look at the independence President Musharraf has given to the media which they (the opposition) are misusing and are saying the government will declare emergency or clamp martial law, but nothing has happened,” he said.

“Nobody has given the freedom, freedom is guaranteed under the Constitution,” Justice Raja Fayyaz observed.

The attorney-general said the independence of the judiciary was the hallmark of the present government and it would accept the court verdict on the petitions.

“You (the opposition) failed to get anything from Gen Musharraf when it was time, but when he is willing to take off his uniform you are not ready even to give him 10 days,” he said. “The court also did not block the presidential elections and when it is time to announce the results it is interfering.”

At one point, Justice Iqbal said the court had no intention to interfere in others’ jurisdiction but it was left with no choice but to interfere in case free and fair elections were not ensured.

Justice Syed Jamshed Ali asked what would be the forum for remedy if constitutional provisions were violated by the returning officer or the Chief Election Commissioner.