Proposers and seconders risk prosecution: Aitzaz on Musharraf’s nomination
By Nasir Iqbal: Dawn, September 27, 2007
ISLAMABAD, Sept 26: An amicus curiae informed the Supreme Court on Wednesday that persons proposing and seconding President Pervez Musharraf as a candidate for a second term would be guilty of an offence carrying imprisonment for 10 years.
Advocate Aitzaz Ahsan, who is assisting the court on its own calling as amicus, based his contention on the Pakistan Penal Code, but did not cite the specific section. He said that whosoever proposed and seconded the nomination of President Musharraf for his re-election for the second term would be guilty of the offence liable to be punished to 10 years each.
At this, Justice Faqir Khokar observed in a lighter vein that the counsel was talking about ‘getting us arrested’. “But you are not proposing or seconding the president,” Barrister Ahsan replied.
Justice Mohammad Nawaz Abbasi observed that the amicus had been called to steer the court out of difficulty and not putting it in difficulty.
A nine-member bench of the Supreme Court, hearing identical petitions challenging President Musharraf holding two offices, earlier heard Senator S.M. Zafar, also assisting the court as amicus curiae, and senior counsel Sharifuddin Pirzada, representing the president, who concluded their arguments.
Aitzaz Ahsan will complete his arguments before the break on Thursday after which Hafeez Pirzada will present his point of view.
At the outset, Sharifuddin Pirzada informed the court that he had no additional arguments to make and adopted the earlier arguments of Attorney-General Malik Mohammad Qayyum, especially on non-maintainability of the petitions.
He, however, said that the petitioners had failed to make out a case for reconsideration or revisiting earlier judgments in the Qazi Hussain and Pakistan Lawyers Forum cases. Besides, all the points raised by the petitioners could be urged in the review petition of the PLF, he said.
S.M. Zafar argued that as soon as the Election Commission announced the results of the presidential election, the president, if it happened to be President Musharraf and he said he hoped he would be, he would have to give up the second office (army chief).
The President to Hold Another Office Act, 2004, would become inoperative on that date, he said, adding: “This is the constitutional requirement.”
He said the dual-office act had a limited shelf life till November 15, 2007, and the statement submitted by a counsel for the president that “soon after the elections, but before taking oath of office” was redundant.
S.M. Zafar said he firmly believed that Gen Musharraf had the rare chance of changing the course of history, like the first leader Quaid-i-Azam Mohammad Ali Jinnah, who did change the course of history.
“I believe had Mohammad Ali Jinnah lived a decade longer, our case history would not have been burdened with the judgments on law of necessity and there would have been no Eighth Constitutional Amendment or 17th Constitutional Amendment,” he observed.
President Musharraf could end a tense, tiresome and wearisome tango that had been going on between the military and civil hierarchy for the last many years, he said, adding that President Musharraf could do so by separating the offices of the army chief and the president.
“I wish that President Musharraf could keep his promise of giving up the office of the army chief on December 31, 2004,” he observed and said in that case he himself and the nation would have immensely benefited, particularly improving the country’s democratic credentials.
S.M. Zafar contended that the Legal Framework Order (LFO) had made many amendments which had tilted the balance of power in favour of the president, but after a protest by parliamentarians and lawyers the 17th Constitutional Amendment was passed which democratised many provisions of the LFO.
It was a salutary principle that if the Constitution was to survive, judges must practise on evolutionary approaches that placed considerable emphasis on continuity, he argued.
“Stability without change is degeneration and change without stability is anarchy. The role of a judge is to help bridge the gap between the needs of society and the law without allowing the legal system to degenerate or collapse into anarchy,” S.M. Zafar said, adding that a judge must ensure stability with change and change with stability.
Aitzaz Ahsan said the president as well as the army chief had separate firewalls or fortified fortresses around them. While the 17th Amendment had given some privileges and facilities to the president to become the army chief, the amendment did not demolish constitutional legal impediments for the army chief to seek the highest political office, he argued.
He sought to establish that the office of the president was a political office and though the president had to be non-partisan, his office was not non-political as it was sought through intense political activity during which he had to ask for votes by making bargains. “But the Constitution forbids the army chief to file nomination for the president as army officers are barred from seeking votes for elections,” he said.