ISLAMABAD, April 27: The Supreme Court ruled on Saturday that the holding of the referendum was a valid exercise, but refused to pass any judgment on the issue of consequences of referendum, saying: “we leave the same to be determined at a proper forum at an appropriate time.”
The Supreme Court, however, in its unanimous judgment, held that chief executive Pervez Musharraf validly removed Mohammad Rafiq Tarar and assumed the office of the president on June 20, 2001.
With regard to the consequences of the referendum, the court held: “We would not like to go into these question at this stage and leave the same to be determined at a proper forum at an appropriate time.”
The nine-member Supreme Court bench, headed by Chief Justice Sheikh Riaz Ahmad, after conducting hearing for six consecutive days, decided on Saturday that the Referendum Order was issued under the powers given to President Pervez Musharraf on May 12, by the Supreme Court bench validating military takeover on the doctrine of necessity.
Dismissing all petitions challenging the holding of referendum, the court in its 18-page judgment said that the Referendum Order did not have the effects of amending the Constitution of Pakistan.
As regards the grounds of challenge to the consequences flowing from the holding of the referendum, the court held that apparently these questions were purely academic, hypothetical and presumptive in nature and were not capable of being determined at this juncture.
“These question (consequences of referendum) are purely academic, hypothetical and presumptive in nature and are not capable of being determined at this juncture,” the court said in its order.
Qazi Hussain Ahmad, Amir of Jamat-i-Islami, had challenged the assumption of office of president by chief executive Gen Pervez Musharraf by removing elected President Mohammad Rafiq Tarar.
The court accepted the contentions made by the government lawyers that Rafiq Tarar remained in the office from October 12, 1999, to June 20, 2001, by virtue of the Proclamation of Emergency and not by force of his election.
“We hold that Chief Executive Order No 2 (removing Rafiq Tarar) and No 3 (assuming of office of president by Pervez Musharraf) have been validly issued by the Chief Executive of Pakistan in exercise of his powers under the Proclamation of Emergency of the 14th day of October, 1999, and the Provisional Constitutional Order No 1 of 1999 as validated by this court in Syed Zafar Ali Shah case. Consequently, this petition qua the issuance of writ of quo warranto is dismissed.”
The defence team, comprising Attorney-General Makhdoom Ali Khan, Sharifuddin Pirzada, Abdul Hafeez Pirzada, Maqbool Elahi Malik and Iftikhar Hussain Gilani, had argued that Rafiq Tarar had continued in office under the PCO 1 of 1999 as part of the present government for nearly two years.
It was further argued that Rafiq Tarar had been performing his functions on and in accordance with the advice of chief executive under the new dispensation and was party to various legislative and executive actions of the present government.
They further argued that he did not lodge any protest when he ceased to hold the office.
Besides Jamat-i-Islami, the Supreme Court Bar Association, Lahore High Court Rawalpindi Bench Bar Association, the Alliance for the Restoration of Democracy through Nawabzada Nasrullah Khan, Adal Trust through Mushtaq advocate, Syed Zafar Ali Shah, engineer Saleemullah and Waseem Rehan had challenged the holding of the referendum.
Disposing Maulvi Iqbal Haider’s civil petition for leave to appeal, the court held in view of the judgment, no order was required to be passed in the civil petition for leave to appeal.
Iqbal Haider of Awami Himayat Tehrik had asked the court to accept his appeal against the SHC order and direct that holding of the referendum was legal.
The SC bench consisted of Chief Justice Sheikh Riaz Ahmad, Justice Munir A. Sheikh, Justice Iftikhar Mohammad Chaudhry, Justice Qazi Mohammad Farooq, Justice Mian Mohammad Ajmal, Justice Deedar Hussain Shah, Justice Hamid Ali Mirza, Justice Abdul Hameed Dogar and Justice Mohammad Nawaz Abbasi.