ISLAMABAD, Sept 20: The Supreme Court on Thursday rejected an application of Pakistan Tehrik-i-Insaaf chief Imran Khan seeking revocation of the Sept 10 amendment to the Presidential Election Rules, 1988, made by the Chief Election Commissioner.
“We have declined and not allowed the CMA (civil miscellaneous application) of Imran Khan,” Justice Rana Bhagwandas announced at the conclusion of proceedings. Justice Bhagwandas is heading a nine-member Supreme Court bench hearing identical petitions challenging the president’s dual offices.
Imran Khan in his application filed on Wednesday had requested the court to implead the CEC as a respondent in the main petitions because the amendment to Article 63 of the Constitution had been made in a ‘clandestine manner’.
“The CEC colluded with Gen Musharraf to help the latter escape disqualifications under Article 63 of the Constitution in mala fide exercise allegedly on part of the CEC as the notification was neither made public nor circulated until September 17, 2007, that too after one of the federal ministers disclosed it in the media,” he said.
Hearing the main petitions, the Supreme Court on Thursday came down hard on politicians with Justice Javed Iqbal blaming politicians for letting the court carry the entire burden.
“Inside we are busy in legal wrangling, outside many political parties are engaged in power-sharing deal, while ordinary citizens are busy in the search of wheat flour,” Justice Iqbal said.
“Sweets were distributed and politicians were looking towards the GHQ after the military takeover of Oct 12, 1999,” Justice Iqbal said. The petitioners, he added, wanted the Supreme Court to assume and exercise the powers of both the Election Commission and parliament, while the dual office law had been passed by parliament itself.
Justice Mohammad Nawaz Abbasi observed that it was up to representatives of the people sitting in parliament to vote for or against the president during the election.
Justice Falak Sher said that if the legislature was supposed to be the supreme body why did it not exercise its authority to dispense with Article 270A which validated actions of President Gen Musharraf. “Move a resolution and have it undone,” he said.
Hamid Khan, the counsel for Jamaat-i-Islami chief Qazi Hussain and Imran Khan, said his clients did not have two-thirds majority and, therefore, could not amend any law in parliament. President Gen Musharraf, he added, wanted to get himself re-elected on the force of his uniform and he did not want to take the risk of election from the next assembly.
When he said that the sitting assembly was dying and was a lame duck, Justice Iqbal said he wondered what kind of medicine the Supreme Court had to convert this lame duck into a lion.
Hamid Khan argued that qualification and disqualification for a public office applied simultaneously and since Gen Musharraf had violated Article 244 of the Constitution by taking part in political activities, he could not run for the presidency.
Citing Article 2(A) which says the state shall exercise its authority by choosing a representative, he said the army chief who was the incumbent president was not a chosen representative of the people. Moreover, the president under the Constitution was ineligible to file nomination papers even without uniform for two years after his retirement as the army chief.
The election of the president by the outgoing assemblies was also against the letter and spirit of the Constitution because outgoing assemblies could not elect a president. The tenures of the president and the assembly ended at the same time, he said.
Justice Sardar Mohammad Raza Khan said he wondered how the president could be part of the assembly if he was not elected by it when in the parliamentary system the president was part of it.
Justice Faqir Mohammad Khokhar said the country’s history should be kept in mind because the nation was passing through a difficult time.
“We must be sensitive at this juncture that power has to be transferred from military to civilians,” he said.
A. K. Dogar, representing the Pakistan Lawyers Forum, argued that Act 7 of 2004 passed by parliament to extend the date of dual offices of the president was in violation of the Constitution and it was a ‘dead letter’.
“When Article 63 (1-d) is not operative, how can a law be enacted under this article?” He added: “Parliament is not supreme as it has to work within the four-walls of the Constitution and it is the Supreme Court that is guardian of the Constitution.”