Is Musharraf Eligible to Run for the Office of President - Ambiguity and Confusion Continues
Staff Report: Daily Times, October 4, 2007
LAHORE: Justice Falak Sher, a member of the Supreme Court full bench which dismissed petitions against the re-election of President Gen Pervez Musharraf, in a separate note held that Gen Musharraf is not qualified to contest the presidential election.
Justice Sher recorded his opinions on the maintainability of the petition and the eligibility of the presidential candidate in the note.
Petitions not maintainable: The judge said the petitions were not maintainable because the petitioners were not contenders in the presidential race, hence their fundamental rights were not being violated. He noted that some of the petitioners helped the regime pass the17th Amendment and Article 270-AA.
He said parliament could have repealed the 17th amendment. “Thus renders the petitions not maintainable with a right to the petitioners to avail of appropriate remedies,” he ruled, suggesting the appropriate place to seek remedy was parliament and not the courts.
Justice Sher observed that Gen Musharraf, being chief of army staff, cannot hold any other office of profit in the service of Pakistan until 2 years after his retirement, “which situation is not amenable to salvage by banking upon the non obstante clause deployed in clause 43(1) ... because it cannot conceivably embrace erosion or nullification or mutilation or ruinage of the constitution”.
The judge added that “the sought for phenomenology is irreconcilable with the express provision of Article 243 envisaging control and command of the armed forces subservient to the federal government including the chief of army staff.”
Justice Sher said the President to Hold Another Office Act 2004 could not override the constitutional status of the armed forces as defined in Article 260, for which the remedy lies in amending the constitution, which could not be achieved through a subordinate delegated legislation.
He also noted that the president is required to perform political functions as head of state, which would be incongruous with the oath of the chief of army staff.
Justice Sher said: “I am of the considered opinion that President General Pervez Musharraf is not qualified to contest the ensuing presidential election.”