Lawyers chime in: Will Musharraf be able to contest polls

Legal experts stand divided on whether the ECP can keep the former general from polls.

ISLAMABAD:

In an ironic turn of events, one former dictator’s constitutional chicanery may render another former dictator ineligible to contest the upcoming general elections. Former army chief General Pervez Musharraf could face disqualification under Articles 62 and 63 on the grounds that he twice abrogated the 1973 Constitution.

Articles 62 and 63, inserted in the Constitution during Ziaul Haq’s regime, list out required criteria for qualification, disqualification, and membership to Parliament, respectively. Factors such as age and citizenship are assessed, as are more subjective points, such as whether a candidate is ameen (righteous) enough or not.

Further complicating matters is the fact that Musharraf has not yet submitted his nomination papers before the Election Commission of Pakistan, prompting some legal experts to claim that he may be barred from taking part in the upcoming general elections.

According to the Supreme Court Bar Association President Asrarul Haq Mian it is a fact that Musharraf violated the Constitution and the ECP can certainly raise objections over this and the nomination papers issue as well.

Haq also said that the ECP needs to look no farther than the SC’s Sindh High Court Bar judgment of July 31, 2009, which held Musharraf responsible for violating the Constitution.

However, he added that initiating a case of high treason against Musharraf did not fall within the domain of the SC, and was in fact the responsibility of political forces.

“It is not possible for the Supreme Court to take suo motu notice when the relevant stakeholders are silent,” he said. Khalid Ranjha, who represented the Pakistan Bar Council in the judicial commission formed to appoint judges in superior courts, also said that no complaint has been lodged against Musharraf under article six, and thus, the ECP cannot stop him from contesting elections on those grounds.

“A person is innocent until proven guilty and Musharraf has not been proven guilty,” he said.

Ranjha also said that it was not possible for political forces and the courts to initiate action against Musharraf for high treason, as he was not alone in the scheme to abrogate the Constitution.

Referring to the limitation of the courts, Ranjha said that only the federal government is authorised to lodge a complaint for high treason and clarified that the courts cannot entertain civil complaints in this regard.

Advocate Salman Akram Raja, who recently served as counsel for retired Air Marshal Asghar Khan in the election rigging case, partially agreed with Ranjha’s stance.

Nonetheless, he said Musharraf had twice abrogated the Constitution without providing any legal cover for his violations. Consequently, the election commission could stop him from contesting elections.

According to Advocate Ahmad Raza Kasuri, senior vice president of Musharraf’s All Pakistan Muslim League, the party had decided to approach the ECP for an extension in the deadline to submit nomination papers. The party has also formed parliamentary boards to oversee the election process. The central parliamentary board, headed by Musharraf himself, will supervise all election related activities in the country.

Kasuri declined to comment on Musharraf’s possible disqualifications and his constitutional infringements.

Separately, during a hearing of a case related to election reforms, AK Dogar, counsel for Dr Mubashar Hassan in the NRO annulment case, told the apex court on that Musharraf wanted to contest polls, despite his constitutional violations.

To this, Chief Justice Iftikhar Muhammad Chaudhry said that an objection can be raised from where Musharraf files nomination papers, and that the ECP is fully empowered to assess which candidates adhere to Articles 62 and 63, and which do not.

Musharraf has already announced his intention to contest elections from four constituencies of the National Assembly, including NA-48 Islamabad and NA-32 Chitral.

Why did the ECP not raise an objection over APML’s registration?

According to former law minister Khalid Anwar, there is apparently no specific provision in the Constitution that could bar Musharraf from registering a political party. He further said it is too difficult for the commission to raise an objection over nomination papers because a conviction is usually necessary for such an objection. He also said that even a convicted person can contest elections after a specific period.

When contacted, ECP Additional Secretary Afzal Khan said only a constitutional expert could comment of such issues.

Published in The Express Tribune, March 28^th, 2013.