ISLAMABAD, April 23: The Supreme Court observed on Tuesday that Qazi Hussain Ahmad could not plead the case of Rafiq Tarar’s removal from the office of president who himself declared one day after the coming of military government into power that he had become part of the new system.

Chief Justice Sheikh Riaz Ahmad, presiding the nine-member bench, observed that Qazi Hussain Ahmed could not be permitted to plead the case of Rafiq Tarar who had not challenged his removal from the office of president.

Chief Justice also observed that petitioner had not specifically challenged the holding of referendum. He should argue if holding of referendum by Gen Pervez Musharraf was in accordance with Article 48-6 of the Constitution or not, he added.

Justice Munir A. Sheikh, senior judge, at the very outset of the proceedings, speaking for the court, observed that counsel for Qazi Hussain Ahmad, Dr Farooq Hasan, should keep in mind that his main challenge was removal of Rafiq Tarar from the office of President who was not before the court.

The counsel was further asked to explain why the removal of Rafiq Tarar was challenged after such a long time as the incident happened on June 20, 2001, and the petition was filed in April 2002.

Dr Farooq Hasan resumed his arguments by saying that whole structure of his arguments was that “Constitution is in operation with the exception of certain provisions which might be held in abeyance.”

PCO No.2 and 3, issued by the Chief Executive, Gen Pervez Musharraf, removing the validly elected President Rafiq Tarar and then appointing himself as President of Pakistan, were contrary to the constitutional provisions and must be struck down, the counsel stated.

The counsel also stated that Supreme Court in a previous judgment (Mian Nawaz Sharif case 1993) had held that any person, attempting to remove the constitutional functionaries, under any garb or device, was exposing himself to the vagaries of high treason as defined in Article 6 of the Constitution. “Article 6 must be given some meaning and there must be an end to subversion of the Constitution.”

Justice Munir A. Sheikh observed that the whole edifice of the present rule was based on the Proclamation of Emergency and when this structure would cease to exist a number of things would happen, including validation.

Justice Munir further observed that counsel should not spend much time on the issue that whether the present government was behaving like a constituent assembly as no constitutional package had been unveiled so far. When it would happen, the courts could be approached, he added.

Justice Munir pointed out that Supreme Court took suo motu notice of the order of banning political activities in the country and issued notice to the government in 2000. The petition was still pending.

The counsel stated the mandate of the present regime was to restore the civilian rule which it derailed on October 12, 1999.

He said Gen Pervez Musharraf being in the service of Pakistan, could not take part in any political activity. Even as President he was barred from “holding any office of profit in the service of Pakistan”, and Gen Musharraf could not remain President as well as Chief of Army Staff. On both the counts, there was a complete embargo on Gen Musharraf, he added.

After reading a portion of the SC judgment in the Nawaz Sharif case, the counsel posed a question to the bench: “Is it our fate to constantly remain in the shadows of condonations and doctrine of necessity.”

The election date, he stated, was approaching fast and the political scenario was totally confused as nobody knew who was eligible to contest and who was not. “Irresponsible statements are being made that such and such individuals will not be allowed to contest election,” he said.

Dr Farooq Hasan stated Referendum Clause (Article 48-6) was no substitution to the mechanism provided for the election of the president.

The court inquired whether president was part of the parliament. The counsel’s response was in affirmative. The court posed another question that if president was part of parliament, what was his position when the parliament was dissolved.

The counsel stated that president being part of the parliament, also had an independent position, and was repository of all state powers.

Justice Deedar Hussain Shah observed that Rafiq Tarar was elected by the parliament and provincial assemblies and he should have resigned after the dissolution of those institutions.

The counsel stated that observations were hypothetical and devoid of ground realities. There were judges who considered Justice Sajjad Ali Shah as the validly appointed chief justice, but when the CJ’s appointment was declared otherwise, those judges should also have resigned which was not the fact, the counsel stated.

Dr Farooq Hasan argued that Gen Musharraf, by assuming the office of the president, had changed the whole complexion of constitutional scheme regarding the form of government, changing it to presidential from the parliamentary form. He said this change was not permissible under the validation judgment.

Justice Iftikhar Mohammad Chaudhry observed that similar things happened in 1984 when the Chief of Army Staff became the president and elections under the same clause were held for the identical purposes.

The counsel stated there was a difference in what happened in 1984 and what was happening now. In 1984, Constitution was held in abeyance as martial law was imposed in the country, and everything was done under extra-constitutional instruments.

Now the Constitution is the supreme law of the land and no extra-constitutional method could be resorted to. He said that subversion of the Constitution could not be allowed again and again. The counsel stated that Rafiq Tarar was required to continue as president till December 2002. “He did not resign and was shunted out, these are the ground realities,” the counsel stated.

Dr Farooq said president who “represents the unity of the Republic” should not have been subjected to such humiliation, specially when the confederal constitutions were being prepared by Mr Pirzada, now representing the federation.

Syed Sharifuddin Pirzada was quick to respond that he was not the author of that document. Abdul Hafeez Pirzada, sitting next to Syed Sharifuddin, stated that document being referred to by the counsel was a mere proposal and he should state the facts correctly.

Dr Farooq Hasan replied he was stating the facts as those were unfolding.

Reverting back to the issue of holding of referendum, the counsel said the provision was not meant for the election of president.

The counsel stated the referendum which Gen Pervez Musharraf was holding without electoral rolls, was a clear fraud with statutes. In the coming referendum, he said, anybody could vote anywhere. Electoral roll was always the central key to every kind of electoral process which was missing in the present exercise.

The counsel, who was still on is feet when the court rose for the day, assured the court that he would complete his arguments on Wednesday.

The SC bench consisted of Chief Justice Sheikh Riaz Ahmad, Justice Munir A. Sheikh, Justice Iftikhar Chaudhry, Justice Qazi Mohammad Farooq, Justice Mian Mohammad Ajmal, Justice Deedar Hussain Shah, Justice Hamid Ali Mirza, Justice Abdul Hameed Dogar and Justice Nawaz Abbasi.



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