The 17th amendment changed the structure of the 1973 constitution since it was an agreement to share power. This was observed by head of the 11-member Supreme Court bench Justice Javed Iqbal during hearing of the petitions against candidacy of General Musharraf for re-election.
Aitezaz Ahsan, counsel for Wajihuddin Ahmad, continued his submissions here on Tuesday. He argued that the office of President is a political office and Articles 62, 63, 242, 244, and 245 of the Constitution placed fire walls before the Chief of the Army Staff to take part in politics and contest elections.
He contended that if Chief of Army Staff was allowed to take part in politics and contested election, it would be subversion of the Constitution. Justice Faqir Mohammad Khokhar asked: under what law a person who subverts or abrogates the constitution would be punished?
Aitezaz : These persons are liable to be punished under Article 6 of the Constitution. Those who proposed, seconded and accepted nomination papers of General Musharraf had committed high treason against the State.
Justice Khokhar: And, what about those who voted for him. Aitezaz: In my view, they are also guilty of subversion of the constitution and punishable under PPC, but Article 6 is specific for the Army officers.
Justice Javed Iqbal: The present judicial (problem) has been created by the 17th amendment in the constitution (which allowed the President to hold two offices). Justice Ramday to Aitezaz: Please address the court on 'Political Activity', and how the Chief of Army Staff cannot take part in it.
Aitezaz replied that both the Constitution and the Army Act forbade Army officers to take part in the political activity. The permission given to the President under the 17th amendment to also hold the office of Chief of Army Staff was for a limited period, which expires on 16th November 2007.
He said the office of President is a political office as the President makes contacts with the political parties to seek their votes, makes election promises, and thus his decisions are also based on politics, but Army Chief was not allowed to indulge himself in such an activity.
Justice Javed Iqbal: There is no doubt that President's office is political office, and if there was any confusion that was removed through the 8th amendment to the Constitution.
Aitezaz submitted that anyone who aids or instigates any army officer to take part in politics is liable to be punished with life imprisonment under section 131 of the Pakistan Penal Code.
He argued that the Prime Minister, Chief Ministers and other persons who had proposed and seconded the name of General Pervez Musharraf as a candidate for the office of President could be punished under this law. Justice Abdul Hameed Dogar: It means, those who voted for him in the Presidential Election on 6th October are also liable to be punished?
AG Qayyum: Aitezaz's party (PPP) also took part in the election. Aitezaz: My party had boycotted the election. Justice Javed Iqbal: In a way, boycott is also support of the election process. Justice Ramday to Aitezaz: Are you against the Prime Minister, or the President?
Aitezaz: My Lord, I am against all those who instigate an Army Officer to take part in political activity and contest election; it is a crime even to give a statement towards that end. Justice Khokhar: The issue before us is whether President Musharraf is qualified to be a candidate or not. Aitezaz: This is exactly my case, that my opponent is not qualified to be candidate. Therefore, he be declared a disqualified candidate.
PRESIDENT'S UNDERTAKING HAS NO BEARING ON PETITIONS President General Musharraf's undertaking in the court that "if re-elected he would relinquish the office of Chief of Army Staff before he took oath of the President for the next five year term" also came up under discussion in the court.
When the petitioner's attorney raised this point, Justice Chaudhry Ejaz Ahmad emphatically observed: The undertaking given by the President is irrelevant in the adjudication of these petitions. Only those documents could be discussed which were attached with the nomination papers of the President. Justice Javed Iqbal observed that in the Nawaz Sharif case, this issue had already been decided that undertakings had no legal validity.
Justice Ramday read Article 41 (2) which says "A person shall not be qualified for election as President unless he is a Muslim of not less than forty five years of age and is qualified to be elected as member of the National Assembly".
He said that "qualification of a candidate" is before the election and not after the election. He said a non-Muslim candidate could not say that "first elect me and then I would adopt Islam my religion and become Muslimaan."
COURT TO GIVE ITS VERDICT NEXT WEEK When the court re-assembled, Attorney General Malik Mohammad Qayyum came on the rostrum and submitted that the way Aitezaz Ahson was presenting his arguments, and other counsel would also make their submissions, it might take the court months to give its verdict.
He said the whole nation was in the grip of uncertainty. Therefore, these petitions should be decided at the earliest. Justice Javed Iqbal said that the court would not allow hearing of these petitions for an indefinite period.
Qayyum submitted that in the CJP case, the court had fixed the time limit; even then the court took two months to decide the petitions. Justice Javed Iqbal observed that these petitions were not less important than the CJP's petition, but the court would give its verdict next week.
The 11-member bench comprises Justice Javed Iqbal, Justice Abdul Hameed Dogar, Justice Khalilur Rehman Ramday, Justice Mohammad Nawas Abbasi, Justice Faqir Mohammad Khokhar, Justice M Javed Buttar, Justice Tassaduq Hussain Jillani, Justice Raja Fayyaz Ahmad, Justice Chaudhry Ejaz Ahmad, Justice Jamshed Ali and Justice Ghulam Rabbani.
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