DAWN Report About CEC Inquiry Leaves Out Key Constitutional Articles

Jan 27th, 2010 | By | Category: Dawn

A report in today’s Dawn says that the Chief Election Commissioner (CEC) is investigating claims that President Zardari is ineligible to hold the office of President, but the report leaves out a key detail – Article  Constitution.

The report claims that a petitioner has asked the CEC to investigate whether Zardari was eligible to stand for office under under Article 63(2) (3) read with articles 5, 25, 50, 62 and 63 of the Constitution. The petitioner claims that, with the Supreme Court’s voiding the NRO, Zardari has become retroactively ineligible to stand for the office of President under Article 41(2) that says a candidate must be qualified to be elected as member of the National Assembly.

The Dawn report fails to note, however, that Article 41(6) of the Constitution states quite clearly that, “The validity of the election of the President shall not be called in question by or before any court or other authority.”

In fact, the only means provided in the Constitution for removing a sitting President are in Article 47: “Notwithstanding anything contained in the Constitution, the President may, in accordance with the provisions of this Article, be removed from office on the ground of physical or mental incapacity or impeached on a charge of violating the Constitution or gross misconduct.”

While it might be of some academic interest as to the retroactive eligibility of Zardari, the fact is that he was elected and Article 41(6) legitimizes that election. Moreover, at the time of the election, all the facts available now were available then, so there is no new information that would have changed the outcome of the election other than the voiding of the NRO, which was, of course, not void at the time of the election. To quote a common phrase, you cannot un-ring the bell.

Readers of Dawn‘s report may be misled into believing that President Zardari’s election could be retroactively voided, causing a crisis of leadership in the government. In fact, the Constitution clearly says this is not true. In the future, Dawn should make sure that it’s reports include all the important facts so that readers are able to fully understand important situations.

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  1. Who is Maulvi Iqbal Haider? Today, Maulvi Iqbal Haider submitted a petition to the Islamabad High Court (established by Pervez Musharraf in a decree on December 14, 2007) preemptively contesting the restoration of the deposed judges via parliament. It’s worth noting that he’s the head of a tiny party, the Awami Himayat Tehreek, formerly named the Pervez Musharraf Himayat Tehreek (Movement for the Support of Pervez Musharraf).

    Maulvi Iqbal challenges President Zardari’s electoral eligibility Updated at: 1835 PST, Sunday, January 24, 2010 http://www.thenews.com.pk/updates.asp?id=96939

    Judges’ relatives among pro-CJ protesters: Haider Tuesday, May 08, 2007 http://www.thenews.com.pk/top_story_detail.asp?Id=7692

    ISLAMABAD: Maulvi Iqbal Haider advocate on Monday alleged that close relatives of some judges on the Supreme Court bench were staging demonstrations in support of the ‘suspended’ chief justice outside the court. Haider, who supports the government stance on the presidential reference, stood up during the hearing of the constitutional petition of Chief Justice Iftikhar Muhammad Chaudhry by a larger bench of the Supreme Court, alleging that Acting Chief Justice Rana Bhagwandas had struck off his petition from the cause list with mala fide intention.

    On this, presiding judge Justice Javed Iqbal Buttar asked him to show respect to the chief justice and avoid talking in that way. “No application from your side is before us. Therefore, you should take the seat,” he added. Haider submitted that such people were sitting in the larger bench whose close relatives hold demonstrations outside the court in support of the chief justice. Therefore, objection can be raised against this bench.

    Justice Butter said, “You should file the application. We will see it.” Maulvi Iqbal Haider pleaded, “What will I do if I go outside to file the application and the court renders verdict?” The presiding judge said, “You mean that we should leave the court.” Haider said, “I should be sent to jail or the court should summon my application and hear it.” Justice Javed Butter said, “We cannot do these two jobs. Several decisions have been pronounced in the country, which need to be reviewed.”

    Last-ditch efforts to stop CJ Iftikhar Thursday, March 19, 2009 By Ansar Abbasi http://www.thenews.com.pk/top_story_detail.asp?Id=21026

    ISLAMABAD: Last-ditch efforts are being made to undo the grand victory of the people as some petitions are being filed in the Abdul Hameed Dogar Supreme Court to get the March 17 notification to restore Chief Justice Iftikhar Muhammad Chaudhry suspended. An extremely-controversial character Maulvi Iqbal Haider, who generally has the reputation of filing dubious petitions on the wishes of latent forces, is preparing a petition seeking the suspension of the March 17 notification.

    The first hint of the conspiracy came when former SCBA president Aitzaz Ahsan said on Tuesday he was getting vibes that the restoration of deposed Chief Justice Iftikhar and other deposed judges might be challenged. A senior judge of the present Supreme Court, also referred as the Dogar Court, also privately told this correspondent that some negative elements might try to do so. Despite being a PCO judge he, however, warned that any such effort would badly harm Pakistan. There is no clue as to who is trying to push the clock back by recreating the judicial crisis. The reports have even travelled to other members of the legal fraternity, including Athar Minallah, advocate. Till recently, the spokesman of Justice Iftikhar, Minallah said he, too, had been informed that the Dogar Court would possibly become a part of the conspiracy to prevent Chief Justice Iftikhar Muhammad Chaudhry from getting back his office on March 22.

    Justice (retd) Malik Qayyum said he did not know of any conspiracy. Qayyum, who is known to have close contacts with the retiring Chief Justice Abdul Hameed Dogar, said all and sundry should accept the restoration of the Nov 2 judiciary and insisted that if any fresh petition was filed challenging the March 17 notification, it should be left to the post-March 22 Supreme Court to consider it. “Chief Justice Dogar should not hear any such petition, if filed, and leave it to the new judges,” Qayyum said on the Geo TV’s Capital Talk. Meanwhile, Maulvi Iqbal Haider told Ahmad Noorani of The News that he had filed a petition in the Supreme Court to pre-empt any move to restore the deposed judges without a constitutional amendment after the signing of the Murree Accord. He stated that his plea was that these judges were validly removed under the Nov 3, 2007 PCO, which was endorsed by the Supreme Court of Pakistan.

    Iqbal disclosed that a few days prior to the issuance of the March 17 notification, he had filed a fresh application before the Supreme Court, seeking hearing of his pending petition. He said he did this foreseeing that the deposed judges would possibly be restored. He said on March 19, either he would press his last application or move a fresh petition on the issue. Iqbal said he was of the view that the judges could only be restored through a constitutional amendment.

    Otherwise, their return to the apex court would be a blatant violation of the Nov 3 PCO and the subsequent Supreme Court verdict, which had ruled that those judges who had not taken oath under the PCO were no more judges and had become past and close transaction. He said every notification issued by the government always contained the reference to some clause and section of the Constitution or law but the March 17 notification through which 11 judges were being restored did not contain any such reference. Meanwhile, another petitioner Shahid Orakzai, who is also known for filing controversial petitions, told the Geo TV that he would file an important petition on March 19 but did not reveal as to what he was going to challenge.

    Orakzai informed Geo correspondent Qayyum Siddiqi that he would point out to a conspiracy and raised the question if the federal cabinet was consulted by Prime Minister Yousuf Raza Gilani before he sent his advice to the president for the issuance of the March 17 notification. According to an unconfirmed report, a legal mind in the Gilani’s government is the author of this conspiracy.

    Dogar must for Zardari Friday, February 27, 2009 Debate on simple or two-thirds majority; president’s spokesman denies By Muhammad Ahmad Noorani http://www.thenews.com.pk/top_story_detail.asp?Id=20620

    ISLAMABAD: The Presidency is eying for yet another politically demanding goal, the extension to Chief Justice Abdul Hameed Dogar without a constitutional amendment, but the president’s spokesman asserts that Dogar will retire on March 21. Though constitutional experts including even those who are considered close to Justice Dogar believe that this is impossible without a constitutional amendment, legal minds surrounding President Zardari are considering to achieve this impossible task through a court order.

    In the post-October 12, 1999 Constitution, the age for retirement of a Supreme Court judge was 65. However, according to constitutional experts, Musharraf, in his bid to continue with his favourite and handpicked judges for a long time, had increased this age limit from 65 to 68 years in his unconstitutional Legal Framework Order (LFO). During the negotiations for 17th Amendment, the increase in retirement-age of the judges of the apex court was not accepted and it was again fixed at 65 years. Afterwards, a lawyer Maulvi Iqbal Haider, who was known to be close to official circles during the Musharraf-regime, moved a petition in the Supreme Court praying that the retirement-age limit for the apex court judges once extended could not be reduced. The said petition is still pending with the Supreme Court.

    Though, constitutional experts SM Zafar and Dr Khalid Ranjha argue that the retirement age could be extended only through a constitutional amendment, senior PPP leader and Chairman National Assembly Standing Committee on Law and Justice Begum Nasim Akhtar Chaudhry told The News Thursday that the age limit could be increased through a simple legislation, which could be passed by a simple majority. According to sources in the government, President Zardari’s legal gurus see no way out for continuation in the power corridors if someone other than Justice Abdul Hameed Dogar becomes the Chief Justice. According to these sources, Zardari considers continuation of Justice Dogar as the Chief Justice crucial to get out of present crisis emerging in the wake of the lawyers’ long march.

    In case, no unconstitutional step is taken, Justice Dogar will retire on March 21. A minister approached by The News termed the report about the proposal to give extension to Dogar for saving Zardari rule baseless. He said if the government wanted to give extension to Dogar, it would be done because of the competency of the incumbent CJ and not because of saving the rule of Zardari. Senior constitutional expert SM Zafar told The News that there was no ambiguity whatsoever in the retirement age of a Supreme Court judge could only be increased through a constitutional amendment, which needed two-third majority. Senior lawyer Dr Khalid Ranjha told The News “though the age could only be increased through a constitutional amendment but in a country like the one we are living in, anything could be done.” He said media persons and lawyers would condemn it but once the decision was delivered, it would be implemented like many other wrong things. When asked to comment, presidential spokesman Farhatullah Babar told The News there was no question of Dogar getting an extension and he would retire on March 21.

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