SC saves the day for Musharraf

ISLAMABAD: A larger bench of the Supreme Court on Friday dismissed as not maintainable six identical petitions challenging the dual office held by President General Pervez Musharraf. The verdict, according to observers, gave a new lease of life to the president.

“For reasons to be recorded later, as per majority view of six to three, these petitions are held to be not maintainable with the contemplation of Article 184(3) of the Constitution,” said Justice Rana Bhagwandas, heading the nine-member SC bench, while announcing the verdict in a short order in a jam-packed courtroom here.

The court also disallowed the petition filed by Professor Dr Anwarul Haq seeking permission to contest the presidential election despite being in service of Pakistan. Six judges on the bench – Justice Javed Iqbal, Justice Abdul Hameed Dogar, Justice Muhammad Nawaz Abbasi, Justice Faqir Muhammad Khokhar, Justice Falak Sher and Justice Javed M Buttar – declared that the petitions are non-maintainable under Article 184(3) of the Constitution. However, the three other judges on the bench – Justice Rana Bhagwandas, Justice Sardar Muhammad Raza Khan and Justice Mian Shakirullah Jan – favoured the petitions as maintainable.

The short order reads that as per the minority view of Justice Rana Bhagwandas, Justice Sardar Muhammad Raza Khan and Justice Mian Shakirullah Jan, all the petitions are held to be maintainable under Article 184(3) of the Constitution and are hereby accepted.

The constitutional petition No 63 of 2007 of Dr Anwarul Haq versus the Federation of Pakistan and another are disallowed to the extent of seeking permission to contest the election to the office of president, says the order, adding that as per the majority view, these petitions are hereby dismissed as non-maintainable.

The Jamaat-e-Islami, through its Ameer, Qazi Hussain Ahmed, had filed two petitions in the apex court while Tehreek-e-Insaf chief Imran Khan and Pakistan

Communist Party chief Engineer Jameel Ahmed Malik had filed identical petitions challenging the dual office of the president and his candidature for the presidential election. The Pakistan Lawyers Forum had also filed a review petition challenging the 17th Amendment while Dr Anwarul Haq had filed a petition seeking permission to contest the presidential election being in service.

Soon after the announcement of the judgment, a large number of lawyers present in the courtroom expressed their resentment at the verdict and chanted “Shame”, “Shame” and raised slogans against the government lawyers as well as Attorney-General Malik Qayyum and Abdul Hafeez Pirzada, who was appointed by the court as amicus curiae.

“The decision is the continuation of the past judgments given by the apex court in cases of Maulvi Tameezuddin, Begum Nusrat Bhutto and Syed Zafar Ali Shah,” Hamid Khan, counsel for the petitioners, Imran Khan and Qazi Hussain Ahmed, told reporters after the verdict.

“The verdict has no doubt revised the decisions made by the apex court during the past 50 years which were made on technicalities instead of merit,” Hamid Khan added. However, he expressed his determination that they would continue their struggle for the independence of the judiciary.

“We were of the view that the judiciary got independence after the historic verdict on July 20 this year; however, today we came to know that we were at fault,” Khan said. Ali Ahmed Kurd, former vice chairman of the Pakistan Bar Council, “rejected” the verdict and said that the judges could not digest the honour and pride given to this prestigious building on July 20 this year.

“This is not a verdict but a dictation, taken by the six judges and we don’t accept it,” Kurd said. He said today’s verdict refreshed the doctrine of necessity. Kurd, however, appealed to the people belonging to all walks of life to reach the Election Commission today (Saturday) and strengthen the hands of the legal fraternity.“I appeal to all the people, even (those) who cannot walk or see should come to the EC with black flags and extend their support to the lawyers,” he said.

Earlier, after hearing the concluding arguments of Abdul Hafeez Pirzada, an amicus curiae, as well as of counsel for the petitioners, Hamid Khan, A K Dogar and Muhammad Akram Sheikh, the court had announced that the verdict of the identical petitions would be announced at 2.15 pm. However, it gave the verdict at 3.30 pm.

Amicus curiae Abdul Hafeez Pirzada, continuing his arguments, submitted that under the Constitution qualification and disqualification for the election of the president have been defined in a separate Article; therefore, disqualification under Article 63 could not be applied to the president.

He further contended that once he is elected as president, his election cannot be challenged and he can be removed only through the process of impeachment. Giving their replies, Akram Sheikh, Hamid Khan and AK Dogar submitted that fundamental rights have been violated; therefore, the court is competent to hear and decide the petitions under Article 184-3.

They said all citizens are equal before the law and equality of right does not belong to individual, but it is a collective in nature. They said all of them have been reduced to inferiority with the participation in the presidential election by the chief of Army staff.

Akram Sheikh submitted that this case is not less (important) than the case of Justice Sajjad Ali Shah, but the difference is that the holder of the office of the president is also holding a gun in his hand and he is holding this office in violation of the Constitution.

“This court has given uniform to President Musharraf and now it is the responsibility of the court to make him doff the uniform,” he concluded. In his reply, AK Dogar submitted that the common citizen, other than a candidate, cannot raise objections before the chief election commissioner; therefore, he is raising these objections before the court to decide the issue. “The core issue before the court is how to separate the Army from the politics of the country,” Dogar concluded.