KARACHI, Aug 16: A division bench of the Sindh High Court put on Friday the attorney-general on notice for Aug 21, when a petition of former prime minister Benazir Bhutto challenging the Musharraf regime’s measure to keep her out of political and electoral process came up for pre-admission hearing.
The bench comprised Justice Sabihuddin Ahmed and Justice Ali Aslam Jafferi. Ms Bhutto has made the Federation, Chief Election Commissioner, Returning Officer NA-207 and NAB Chairman respondents in the petition.
Arguing the petition, which was filed by Ms Bhutto’s counsel Farooq H. Naek, Barrister Kamal Azfar contended that section 8D (2) (n) of the CE’s order 21 of 2002 was unconstitutional while at the same time challenged the vires of section 31 of the NAB Ordinance.
It is the case of the petitioner that the military regime sees in the petitioner a threat to its power and is continuing her politically-motivated persecution. In this connection, the regime passed an absentee law in the shape of Section 31-A by amending the NAB Ordinance 1999 and malafidely and unlawfully applied it in the aforesaid three courts against the petitioner which is being challenged.
It is also her contention that the military regime repealed the Political Parties Act and made Political Parties Order 2002 requiring parties seeking to contest the elections to hold intra-party elections within a short period which the petitioner’s party, the PPP, did. The Political Parties Order 2002 also lays down that a party leader disqualified from contesting election would be refused permission to file application for election symbol with the Election Commission.
As soon as the PPP elected the petitioner as party leader the regime passed a Benazir-specific amendment to the Chief Executive Order 7 of 2002 by way of the Chief Executive Order 21 of 2002 disqualifying a person from contesting election, if convicted of non-appearance in court by the absentee law.
Kamal Azfar claimed that despite harassment and six references, the government had not been able to secure conviction of Ms Bhutto.
Barrister Azfar, who represented the petitioner along with Farook H. Naek, argued that the basic issue was the question of representative democracy in Pakistan: whether the people were sovereign to elect their representatives freely or the establishment would impose its own malafide solutions.
Ms Bhutto’s counsel maintained that there was no question of absconcion and termed these amendments Bhutto-specific. He submitted that the apex court in Asif Ali Zardari case had quashed the conviction and there was no conviction against the petitioner.
Barrister Azfar argued that the Pakistan People’s Party’s self-exiled chairperson, Benazir Bhutto, never absconded in terms of section 31-A of the NAB Ordinance of 1999, as the petitioner had left the country with the permission of the Lahore High Court. Thus, no question of disqualification under clause 2 (n) of article 8D of the CE Order No7 of 2002, as amended, arose
Even otherwise article 8D 2 (n) only applied where a person had been convicted of absconcion. Under section 31-A, the guilt was determined by operation of law and not as a result of conviction. Thus, the disqualification envisaged under article 8D 2 (n) did not apply in the case of the petitioner, he submitted.
It is her case that even otherwise section 31-A of the Ordinance of 1999 only applies where a person absconds to avoid being served with any process. The petitioner has not absconded to avoid being served with any process.
The petitioner has maintained that the very concept of automatic conviction without even a trial is completely subversive of the cardinal principle of due process of law and is inconsistent with the norms of civility and justice.
It is her contention that article 8D 2 (n) of CEO 7 of 2002, as inserted by the CEO No 21 of 2002, is violative of articles 4 and 9 of the constitution as a person is disqualified from being elected to parliament against the doctrine of due process of law and the principle of natural justice.
She claims that passing sentence of imprisonment for any term is basically a judicial function. Section 31-A of the NAB Ordinance of 1999 is violative of article 175 of the constitution as it interferes with the judicial functions which the courts are required to perform in accordance with, inter alia, the CrPC, while dealing with cases of absconcion. The legislative fiat reflected by section 31-A of the Ordinance of 1999 flouts the independence of judiciary.
The petitioner maintains that section 31-A of the Ordinance of 1999, which automatically convicts a person is violative of articles 4 and 9 of the constitution, which guarantee the right of every citizen to be dealt with in accordance with law. Conviction of a person without any trial whatsoever is a mockery of due process of law.
Section 31-A of the Ordinance of 1999 which automatically finds a person guilty for reason of absconcion regardless of the individual circumstances of each case, is manifestly arbitrary and discriminatory.
Article 8D 2 (n) of the CEO 21 of 2002, as amended, is inconsistent with articles 63 (h) and (l) of the constitution, which already provide for convictions resulting in disqualification of a person. This provision also maintains distinction between “guilt” and “conviction.” Article 63 does not cater for disqualification based on section 31-A of the Ordinance of 1999, the petitioner claimed.
Article 8 D 2 (n) of the CEO of 21 of 2002, as amended, is outside the parameters of limited power to amend the constitution for the welfare of the people which has been circumscribed in Zafar Ali Shah’s case.
She has therefore prayed for declaring section 31-A of the NAB Ordinance of 1999 ultra vires of the provisions of the constitution and that it be struck down.
She has also prayed for declaring article 8D 2 (n) of the CEO 7 of 2002, as inserted vide the CEO 21 of 2002, inter alia, ultra vires of the provisions of the constitution, and that it should be struck down.
Her prayer is also to declare that the petitioner is qualified to contest the forthcoming elections, and so the respondents should be directed to accept her nomination papers.