Deposed judges release ruling against Musharraf
By Rauf Klasra: the News, November 19, 2007
ISLAMABAD: Three defiant judges of the Supreme Court, who are presently under house arrest after imposition of emergency, have now declared in their detailed judgment submitted before the SC last Friday that General Musharraf could not be allowed to contest the presidential elections.
They say frequent military interventions and destabilization of elected governments have given "rise to indiscipline, disorder, unemployment, massive corruption, intolerance, and extremism in Pakistan, which must be eradicated and eliminated with iron hands".
These judges who had refused to take oath under the PCO, have also observed in their joint judgment, which has not been released to the media, that continuation of Musharraf as the army chief beyond December 31, 2004 was "illegal and unlawful".
The judges, Justice Rana Bhagwandas, Justice Sardar Mohammad Raza Khan and Mian Shakirullah Jan, were part of the nine-member bench which had dismissed the petitions of Qazi Hussain Ahmed and Imran Khan on September 28, 2007 with regard to the question whether Musharraf could contest election from the present assemblies with or without uniform.
The judges submitted their detailed judgment to the Supreme Court on Friday in which they have addressed seven questions that were raised before the court. Talking to The News, Justice Rana Bhagwandas who headed the bench, confirmed that he along with Justice Sardar Mohammad Raza and Mian Shakirullah had submitted their judgment last Friday but the authorities may not have released their 58-page long observations.
Justice Bhagwandas who was in good spirits and in a defiant mood told this correspondent they had taken a lot of time and effort to put together the arguments to establish their points of view. The SC should have made their judgment public.
But, he said, it was not done. He observed that his staff might have handed over the judgment to the concerned authorities for its release to the media, but it was simply dumped and ignored. "These are very important observations and everybody should come to know about those points on the basis of which we had decided the issue of eligibility and merit."
In the judgment spread over 58 pages, the three judges have observed that "we earnestly feel that this country no longer can afford the luxury of resorting to circumvent the law and the constitu tional mandate by upholding and affirming the draconian doctrine of necessity restored to earlier.
Indeed, the judges of this court are under an oath to uphold, preserve and defend the constitution of Pakistan, which must be strictly adhered to in letter and spirit without any fear or favour, or ill will.
"Any endeavor to continue and affirm the present system of governance, which has transformed parliamentary system of governance into presidential form of government is bound to damage the dignity, respect and honour of the citizen of this country in the comity of the nations and bring a bad name to it, which can hardly be appreciated.
"Independence of judiciary, stability of the democratic system, regular conduct of the general election process, allowing the institutions to serve freely within the sphere of their scope and without involvement of the armed would always be in the supreme interests of the nation.
They said: "Needless to emphasis, frequent military interventions and destabilization of elected governments have always given rise to indiscipline, disorder, conflict of interests, inflation, unemployment, massive corruption, intolerance and extremism in the country which must be eradicated and eliminated with iron hand and strengthen in accordance with the law".
In the same judgment the judges have also observed "we earnestly feel, there appears to be enough substance and force in the submission of the petitioners that General Musharraf could not contest elections from the current assemblies as outgoing assemblies can not be allowed to bind the successor assemblies to be elected as a result of popular mandate. Further more, members of present electoral college, who have already expressed their opinion by expressing a vote of confidence immediately after their assumption of office, may not be in a position to exercise their right of franchise freely and independently. They would naturally be influenced and swayed by their earlier decision.
"Since the term of the office of President as well the present assembly expires simultaneously on November 15, 2007, it would be in the fitness of the things and in consonance with the democratic norms and intentions of the framers of the constitution if the new assemblies and the electoral college are allowed to exercise their right to elect a president of their choice during the term of electoral college under the constitution.
"An exceptional situation which can be conceived may be where the incumbent president, before expiration of his term of office, is removed from his office on the ground of physical or mental incapacity, is impeached on a charge of violating the constitution or the gross misconduct; resignation or death when the office of president falls vacant, the existing electoral college would be constitutionally authorized to elect another president for the un expired term of office.
"Indeed, General Musharraf, was fully alive to this situation, therefore while promulgating LFO 2002, he introduced meaningful amendments in the Chief Executive order, he introduced meaningful amendments in article 224 of the constitution, providing for time for election bye election. While the original text provided that a general election to the national assembly or a provincial assembly shall be held within a period of 60 days immediately "preceding" the day on which the term of assembly is due to expire, the expression "preceding" was intentionally substituted by the term "following".
"This amendment was intentionally and deliberately made with a view to make a room for a seeking election to the office of the president from the outgoing assemblies in conformity with clause (4) of article 41 of the constitution stipulating that election to the office shall be held not earlier than 60 days and not later than 30 days before the expiration of the term of the president in office. The draftsmanship and ingenuity of those who suggested the above said amendment in the constitutional provisions can only cause dismay may be looked upon with sorrow and grief".
"Since the purpose and object of the amendments never saw the light of the day, it is hard to appreciate the ground realities providing the forum to present electoral college for election of the same person to the office president for another tem for which new assemblies have to be elected a as a result of popular vote based upon election manifestoes of various political parties.
"It may be further observed that the president being an integral part of the parliament, it would be quite inconceivable and unusual that the parliament with whom a president has to work in total cordiality and harmony should not be elected by such parliament.
"At the cost of repetition, it may be noted that a parliament having outlived its tenure should not be allowed to bind the successor parliament with its choice as it is well settled that a parliament may do anything but bind the successor parliament. The present parliament having outlived its life, in our view, does not have a democratic mandate of the people to elect the same person as president for another term of five years, which would militate against the well entrenched principles of democratic value".
"For the aforesaid facts, circumstances and reasons these petitions are allowed and General Pervez Musharraf declared to be disqualified to contest for the presidential election," the three judges concluded.