KARACHI, Sept 17: When the constitutional petition of Benazir Bhutto impugning the Legal Framework Order and recent amendments to the constitution and NAB laws came up before a full bench of the Sindh High Court on Tuesday, her counsel argued that the insertion of clause (p) in article 63 (1) of the constitution was a colourable legislation.

Barrister Kamal Azfar was making submission before the full bench comprising the Chief Justice of the Sindh High Court, Saiyed Saeed Ashhad, Justice Sabihuddin Ahmed, Justice Ghulam Rabbani, Justice Anwar Zaheer Jamali and Justice Musheer Alam.

In the petition, filed by her attorney Farooq H. Naek, advocate, Ms Bhutto has contended that clause “P” of article 163 (1) and/or section 8 D (ii) n of CEO No 21 of 2002/CEO-211/or clause (r) of section 99 of the Representation of Peoples Act of 1974 were without lawful authority and of no legal effect.

It is also her contention that section 31 (a) of the NAB Ordinance does not apply to her case and is without lawful authority and of no legal effect.

Mr Azfar argued that this was a question of right of franchise of an individual who had been elected by the people of his constituency four times.

He submitted that when the election schedule was announced there was no mention of absconcion as a ground for disqualification. However, on 29th July the CEO No 21 of 2002 had been promulgated in which this ground was added as clause 8 D (ii) n. One of the grounds taken in the petition was that the clause 8 D (ii) n was inconsistent with sub-clause H K & L of article 63 of the constitution. Subsequently, a new clause “P” to article 63 was substituted.

On the question of absconcion, Mr Azfar submitted that the Lahore High Court did not apply ratio of the Supreme Court case in Ashfaq Chief’s case. He also cited Ghulam Mustafa Jatoi’s case (1994) which pertained to the right to franchise.

Justice Sabihuddin observed that the right of franchise was not an issue here. He also asked the counsel to reply to the Federation’s objections on territorial jurisdiction as the petitioner was convicted by the Rawalpindi bench of the LHC.

Mr Azfar submitted that the question here was about the vires of the statute as the petitioner’s grievance was against the returning officers.

Responding to the objection with regard to territorial jurisdiction, Ms Bhutto’s attorney Farook H. Naek clarified that before the order was passed by the accountability court-II, Sardar Lateef Khosa had applied to appear on behalf of the petitioner. His plea was requested on the ground that he had no locus standi as he was not the aggrieved party. Therefore the question of territorial jurisdiction did not arise.

Mr Naek, attorney for the petitioner, who is appearing as counsel in those cases, informed the bench that intra-court appeals were pending against such judgments wherein appeals filed by Sardar Khosa had been dismissed in limine.

Responding to the objection regarding territorial jurisdiction, Mr Azfar said all the respondents (returning officers) were situated in Sindh province and that the petitioner had filed nomination papers from constituencies in Sindh.

Mr Azfar cited extensively from Syed Zafar Ali Shah’s case in support of his contention that insertion of clause “P” in article 63 of the constitution was a deviation from the constitution and beyond the powers of permissible deviations conferred upon the Chief Executive.

He contended that the vires of the LFO and section 31 (a) of the NAB Ordinance could be questioned before a court of law as power to exercise jurisdiction came from the same judgment which conferred limited powers of necessary legislation on the Chief Executive.

The bench however observed that “You are not realizing that there is an extra-constitutional document, the PCO.”

Mr Azfar, continuing his arguments, said that “judicial power cannot be exercised with bias. No power can be exercised in colourable way.”

He raised a question that whether in the case of Zafar Ali Shah the criterion of good governance which applied to the whole country could also be applied to attract only one person out of 140 million population.

Attorney-General Makhdoom Ali Khan submitted that Ms Bhutto had challenged the vires of the LFO on the one hand and was also contesting election on a seat reserved for women in the National Assembly which was created under the same law.

He said he would raise this aspect in the course of his arguments.

Three preliminary objections were raised by the Federation in a rejoinder filed by Maqbool Elahi Malik, counsel for the Federation. The first objection says that the petitioner is “an absconder and therefore cannot seek benefit of equity jurisdiction.”

It is also his contention that the petitioner wanted the SHC to sit in judgment on an order passed by the LHC in a writ petition. He claimed that the SHC lacked territorial jurisdiction.

While Mr Azfar was arguing the proceedings were put off to Wednesday.