Petitions against two offices: Supreme Court asks counsels for realistic way out of crisis

The Supreme Court on Monday asked the counsels of the two sides to suggest a realistic solution of the ongoing constitutional and political crisis confronting the nation. An 11-member bench of the court was hearing several petitions against re-election of President Musharraf in uniform for another five-year term.
The petitioners' plea is that under the 17th Amendment, General Musharraf is entitled to hold two offices of President and the Chief of Army Staff till November 15, 2007. But he could not be a candidate for the office of President, and file nomination papers on September 27, 2007.
General Musharraf has assured the court that he would put off his uniform, and relinquish the charge of Chief of Army Staff, before taking oath as President for the next 5-year term.
It may be recalled that the Supreme Court had allowed the Election Commission to hold presidential election on October 6, which was overwhelmingly won by General Pervez Musharraf. However, the final notification of his re-election has been withheld till decision of the court.
On several occasions, there were very interesting dialogues between Aitezaz Ahsan, counsel for a petitioner, and members of the Bench, Justice Javed Iqbal: The 17th amendment passed by the Parliament allows General Musharraf to hold two offices till 15th November.
Aitezaz: The 17th amendment has not touched Articles 243, 244 & 245. (command, oath and functions of the armed forces), which forbid members of armed forces to take part in politics and contest elections. Justice Ramday: What would be effect if General Musharraf becomes Mr Musharraf on 16th November, after putting off his uniform?
Aitezaz: As Chief of Army Staff, he cannot take part in politics, and seek re-election. The court has buried the 'doctrine of necessity' for ever. Justice Javed Iqbal: Even if we have buried the doctrine of necessity, its soul is alive, and is still around.
Justice Ramday: In 1988, the full Supreme Court had declared that martial law had been buried for ever, but nowadays we read in the newspapers that martial law was alive, and coming. Aitezaz: Despite diverse ethnicity and religions, India has survived because of uninterrupted democracy.
Justice Ejaz: Indian politicians are tolerant, whereas our politicians lack tolerance. Aitezaz: Prime Minister Indira Gandhi had jailed opposition politicians in 1975, but they had not called the Army Chief to intervene, though the Judiciary intervened. Justice Tassadaq Jillani: But the Indian Judiciary had come under fury of the Executive at that time.
Aitezaz: Pakistani politicians are not solely responsible for the sad state of affairs. Army Chiefs also broke their oath and took part in politics, and politicised the Army. Justice Abbasi: Politicians also take oath (as members of parliament).
Aitezaz: President, Prime Minister, Senate Chairman, National Assembly Speaker and other constitution office holders take oath to 'defend' the constitution, whereas army officers, as government servants, take oath to 'uphold' the constitution. Justice Ramday. Forget about the ideal situation. Be realistic, and tell us what should be done under the present extraordinary situation.
Aitezaz: Under the constitution, General Musharraf is not qualified to be the President of Pakistan. Judiciary is very powerful; it could bury martial law. Javed Iqbal: What is the guarantee that the court's decision would be implemented?
Aitezaz: Judiciary has not used its vast powers. Armed Forces must remain under control and command of the Federal Government and desist from taking part in politics.
Coourt: What is the best option Aitezaz : General Musharraf should retire as Chief of Army Staff and President and play golf with his friends and army colleagues. Senate Chairman should become acting President and, after holding free and fair elections, hand over power to the newly elected government.
Court: And, if General Musharraf becomes President? Aitezaz: Only court will make him President; nobody else can do it. Justice Abbasi: You want us to be 'lions'. Why don't you give this advice to your political party (PPP has made a power sharing deal with General Musharraf)?
Aitezaz: I say the same thing every where. I am standing where I was. Justice Khokhar: If we close door (to peaceful transition), the nation might not get the 'reverse' gear (martial law, emergency etc).
Aitezaz: People used to say: 'Army Chief has removed the Chief Justice, how could he be reinstated', but he was reinstated. Justice Ramday: You cannot get this kind of decisions every day. Justice Javed Iqbal: You plea is that President Musharraf cannot be elected for the next term?
Aitezaz: My plea is that Chief of Army Staff cannot contest presidential election. Justice Ramday: What is the reason that there are either kingdoms or dictatorships in the Muslim world, from Morocco to Indonesia?
Aitezaz: Pakistan is not Jordan, Morocco or Indonesia. Whenever a dictator takes over in Pakistan, his first promise to the nation is that he would hold the general elections, and restore democracy. Justice Javed Iqbal: Do you want us to decide the petitions according to the wishes and aspirations of the people, setting aside the constitution?
Aitezaz: It is demand of the aspirations of the people and the constitution that a government servant should not contest for President. Justice Javed Iqbal: We should try to cure the disease, and not kill the patient, while trying the blood match.
Before rising, the presiding Judge, Justice Javed Iqbal asked Aitezaz to complete his arguments on Tuesday. Later, talking to newsmen, the President's counsel, Sharifuddin Pirzada, expressed hope that the court would give its verdict on these petitions next week.
The bench comprises Justice Javed Iqbal, Justice Abdul Hameed Dogar, Justice Khalilur Rehman Ramday, Justice Mohammad Nawaz 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.