Deciding poll issues is EC’s job, says SC : Detailed judgment issued

By Nasir Iqbal

ISLAMABAD, Nov 13: The Supreme Court on Tuesday expanded upon its short order dismissing petitions challenging President Gen Pervez Musharraf’s eligibility for the presidential election and ruled that such disputes lay originally with the Election Commission and not the court.

On Sept 28, the Supreme Court through the short order had dismissed on technical grounds petitions against the holding of two offices by Gen Pervez Musharraf. In a majority (six-three) verdict, a bench headed by Justice Rana Bhagwandas had said that the petitions moved by Jamaat-i-Islami chief Qazi Hussain Ahmed, Pakistan Tehrik-i-Insaaf chief Imran Khan and some other people were not maintainable.

Authored by Justice Mohammad Nawaz Abbasi, the detailed judgment held that questions raised in the petitions, notwithstanding public importance, did not relate to enforcement of any of fundamental rights guaranteed in Part II Chapter I of the Constitution (Article 8 to 28).

“Eligibility of a person to contest the election for the office of president in terms of Article 41(2) read with other provisions of the Constitution, does not relate to the enforcement of any of the fundamental rights of the petitioners or any other person. Therefore, the direct petition before this court under Article 184(3) of the Constitution is not maintainable.”

The judgment said questions relating to the application of Article 63 (disqualification) read with Article 62 (qualification) of the Constitution for determining eligibility of a candidate for the presidential election squarely fell within the jurisdiction and domain of the Election Commission, a constitutional forum of exclusive jurisdiction.

Besides, it said, parliament had enacted Act VII of 2004 (President to Hold Another Office 2004) which, having been found not in conflict with any provision of the Constitution, had been validated by the Supreme Court in the 2005 Pakistan Lawyers Forum case, and pending a review petition against the judgment in the above case, a separate petition on the same subject with a delay of more than two years might not be “entertainable”.

The petitioners had sought a declaration that while holding the office of Chief of Army Staff, Gen Musharraf was not eligible to contest the election under Article 63 (1) (d) (k) and (o) (disqualifications).

The counsel for the petitioners had failed to satisfy the court how the disqualification of Gen Musharraf, if any, had infringed fundamental rights of the petitioners or any other person guaranteed under the Constitution and how it was related to the enforcement of such rights under Article 184(3) of the Constitution, the judgment said.

It said the right to contest the election might be a constitutional right and regulated by the limitation imposed by statues, but laws relating to such rights or the right to vote might not as such fell within the purview of fundamental rights to bring the matter relating to such rights within the ambit of Article 184 (3) of the Constitution.

It said the right to file a petition under Article 184(3) of the Constitution arose only in case of infringement of fundamental rights or a serious threat to infringe such rights, adding that mere apprehension of breach of fundamental rights was not enough to invoke the extraordinary jurisdiction of the apex court.

The court, the judgment said, was always reluctant to answer a hypothetical question even if such a question in its substantial context might be of public importance relating to enforcement of fundamental rights.

Similarly, the court might not grant relief in exercise of its original jurisdiction in a case filed with inordinate delay, notwithstanding the fact that the delay did not affect the jurisdiction of the court.

In the present case, it said, the matter to the extent of the presidential election was certainly of public importance but “we have not been able to digest that the questions raised therein really relates to the enforcement of the fundamental rights to invoke the jurisdiction of this Court under Article 184(3) of the Constitution”.



Dawn 14/Nov/07