ABDUL HAMEED DOGAR, C.J.--- The Chief Election Commissioner of Pakistan/Returning Officer (respondent No,1), by notification dated 20th September, 2007, issued schedule of election of the President of Islamic Republic of Pakistan, in pursuance of Paragraphs 1 and 3 of the 2nd Schedule read with clause (3) of Article 43 of the Constitution. The petitioner is a former Judge of this Court.
The petitioner, the respondent No,3, General Pervaiz Musharraf, President of Pakistan and respondents Nos.4 to 7 filed their nomination papers for the election. The scrutiny of the nomination papers of the candidates was held on 29-9-2007. The petitioner filed objections in writing to the candidature of the respondent No,3 by raising a number of constitutional and legal questions. The Chief Election Commissioner of Pakistan, by the impugned order dated 29-9-2007, turned down the objections of the petitioner and accepted the nomination papers of respondent No,3. The operative part of the impugned order reads as under:-- "2. The first objection was to the effect that the current Assemblies were not competent to re-elect the candidate for another term of five years on constitutional, legal and moral grounds as they had already endorsed his present term of five years and their own term was on the verge of expiration.
The objection is devoid of force as it is not augmented by any explicit or implicit embargo contained in the Constitution that an electoral college cannot elect the same person as President twice during its one and the same term. Besides, the objection is squarely negated by the express command contained in Article 41(4) of the Constitution that election to the office of the President shall be held not earlier than sixty days and not later than thirty days before the expiration of the term of President in office. The term of the President in office shall expire on 15th November, 2007, therefore, there can be no cavil with the proposition that election to the office of the President must be held between 15th September to 15th October, 2007. The timeframe is indubitably mandatory.
Obviously, the electoral college in existence during that period will be competent to elect the President and postponement of the Presidential election till formation of a new electoral college will be a constitutional deviation too glaring to be overlooked or condoned. As regards the morality- related ground, it will suffice to say that it is by now well-settled that ethical notions and moral grounds cannot be used as a springboard to strike down a provision of law or whittle down a provision of the Constitution. There is no dearth of case-law on the subject. However, it will be enough to mention an oft-quoted authority on the subject which is reported as Brig. (Retd.) F.B., Ali v. The State (PLD 1975 SC 506). Last but not the least, the objection is paradoxical inasmuch as the Objectors on the one hand have assailed the competency of the current assemblies to re-elect the President and taken the stance that the present Assemblies do not constitute a valid electoral college and on the other have filed nomination papers seeking election to the office of the President from the same electoral college.
3. The second objection related to one of the disqualifications listed under Article 63 as paragraph
(d) of clause (1) and one of the conditions of President's office contained in Article 43(1) of the Constitution. The precise objection was that under the mentioned provisions of the Constitution the candidate is precluded from seeking re-election to the office of the President in uniform while holding the office of profit as Chief of the Army Staff. The objection cannot prevail for reasons that are not far to seek. Firstly, the objection is not available at all in the light of interpretation of Article 41(2) of the Constitution made in Qazi Hussain Ahmed v. General Pervaiz Musharraf (PLD 2002 SC 853) and Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719) that a candidate for the office of the President is only required to be qualified to be elected as a member of the Parliament and is not hit by the disqualifications contained in Article 63 of the Constitution.
Secondly, the disqualification contemplated under paragraph (d) of clause (1) of Article 63 is not attracted in the face of person-specific provisions of the President to Hold Another Office Act, 2004, which has been validated by the Supreme Court of Pakistan in the case of Pakistan Lawyers Forum (supra), with the observations that it is not liable to be struck down as ultra vires of Article 43 of the Constitution. As regards the bar contained in Article 43 of the Constitution it will be pertinent to point out that it applies to the President in office and not to a candidate for the office of the President. Moreover, Article 43 of the Constitution is presently dormant on account of the overriding effect of the non obstante clauses contained in Article 41(7) and (8) of the Constitution, as held in the case of Pakistan Lawyers Forum, and will get resurrected in, due course of time. The said judgment, apart from the Constitution, allows the candidate to hold two offices, namely, President and Chief of the Army Staff simultaneously for a specific period of time, which has not yet expired.
4 The third objection was that the candidate having remained President for two consecutive terms, firstly from 20th June, 2001 to 15th November, 2002 and secondly from 16th November, 2002 onwards, was not eligible for the third term under Article 44(2) of the Constitution which precludes a person from holding office of the President for more than two consecutive terms. The objection is misconceived. The first term is to be excluded from the tally having not been enjoyed as a result of election and being traceable to an extra-constitutional step which had made itself manifest through Proclamation of Emergency (Amendment) Order, 2001 (Chief Executive's Order No,2 of 2001) and President's Succession Order, 2001 (Chief Executive's Order No,3 of 2001).
5. The fourth objection was that the candidate was not qualified to contest the election as he was not sagacious, righteous and non-profligate and honest and ameen within the contemplation of Article 62(f) of the Constitution as he had not' fulfilled the commitment made on the electronic media on 24th December, 2003, to give up the office of the Chief of Army Staff by 31st December, 2004.The objection is remarkable in weakness only. The matter is certainly debatable and there is nothing on the record from which the terms and conditions of the commitment or the circumstances under which it was made or not fulfilled could be gathered. It is also not known as to why the failure to fulfil the commitment was not subjected to any legal challenge. Besides, the matter has lost significance by efflux of time and falls within the ambit of a past and closed transaction. In any case, even if the quoted instance from the distant past, which does not appear to be free from political overtones and spirit of national interest, is presumed to have left any mark on the mentioned qualification of the candidate its effect has been offset by the undertaking given by his counsel in the apex court recently that if elected he will doff his uniform before taking oath of office.
' The fifth objection was that being Chief of the Army Staff, the candidate cannot be the President as the post of Chief of the Army Staff is not excluded from the definition of the service of Pakistan under Article 260 of the Constitution. Moreover, as a member of the Armed Forces he had made an oath under Article 244 of the Constitution not to engage in political activities. The objection is not tenable in view of the observations made in the case of Pakistan Lawyers Forum that on the strength of the non obstante clauses contained therein clauses (7) and (8) of Article 41 override Articles 260 and 244 as well as the oath contained in the Third Schedule. The said judgment still hold the 'field having not been revisited so far. It will not be out of place to mention here that Constitutional Petitions titled: "Jamat-e-Islami versus Federation of Pakistan (Civil Petitions Nos.58, 59, 61 and 63 and 68) filed in the Supreme Court of Pakistan to challenge the validity of dual office of the candidate, which enjoys the blessings of the Parliament, have been dismissed as not maintainable.
7. The next objection related to the educational qualification of the candidate. It was contended that the candidate was not qualified to be elected as a member of the National Assembly as he was not a graduate within the meanings of Article 8A of the Conduct of General Elections Order, 2002. The objection turned out to be unfounded and frivolous when Mr. Wasim Sajjad pressed into service two original degrees, attested copies placed on the file of Nomination Paper No,1 of the candidate, according to which the candidate had obtained degree of Bachelor of Science (Honours) in 'War Studies" from the University of Balochistan, Quetta, and degree of Master of Science in 'War Studies' from Quaid-eAzam University, Islamabad, in the year 1980 and 1983 respectively.
8. The last objection also related to the issue of qualifications and disqualifications. It was urged that the candidate was not eligible to contest election as he suffered from disqualifications enumerated under paragraph (k), (o) and (g) of clause (1) of Article 63 of the Constitution. The objection is sans substance as it ignores the settled law based on the interpretation of Article 41(2) of the Constitution, mentioned earlier, that a candidate for the office of the President is only required to be qualified to be elected as a member of the National Assembly and is not hit by the disqualifications embodied in Article 63 of the Constitution. Needless to add that it is also firmly settled that qualifications and disqualifications are two separate concepts having distinct connotations and are not interchangeable."
2. The Election Commission (it Pakistan by notification dated 29-9-2007, announced the names of validly nominated candidates. The petitioner felt aggrieved and filed Constitutional Petition No,73 of 2007 before this Court under Article 184 (3) of the Constitution of Islamic Republic of Pakistan calling in question the validity of impugned order dated 29-9-2007, passed by the Chief Election Commissioner of Pakistan.
3. Pursuant to order dated 5-10-2007 of this Court, the polling of election was held on 6-10-2007.
The respondent No,3 was reported to have secured the highest number of valid votes i.e 57% of total number of votes and 99% of the votes cast in election. This petition was previously heard for a number of days but hearing could not be concluded. In the meantime, the Proclamation of Emergency, Provisional Constitution Order and Oath of Office (Judges) Order, 2007, were promulgated on 3-11-2007. As a result thereof, the composition of Bench of this Court was changed.
4. When the petition was taken up for hearing today i.e 19-11-2007, Mr. M.S Khattak, learned Advocate-on-Record for the petitioner presented before the Full Court two applications dated 10- 11-2007 and 19-11-2007 , wherein, prima facie, derogatory and contemptuous language was used.
Soon after the learned Advocate-onRecord had started addressing the arguments in support of the applications he realized that he was running a risk of being proceeded against. He, therefore, tendered unconditional apology in writing as well as orally for submission of both the applications and withdrew the same with permission of this Court. He further stated that he had no instructions to argue Constitutional Petition No,73 of 2007 and Criminal Original Petition No,51 of 2007. He was repeatedly asked to argue the same but he showed his inability to perform his legal duty which he owed to the Court as laid down in the cases of Messrs Pearl Builders (Pvt.) Ltd. v. Ardsher Cowasjee and others (PLD 2003 SC 946), Dr. Saleem Javed and others v. Mst. Fauzia Nasim and others (2003 SCMR 965) and Habib-Al-Wahab Alkhairi and others v. Commissioner, Rawalpindi Division and others (PLD 1992 SC 587).
5. Be that as it may, we find that the impugned order dated 29-9-2007, was passed by the Chief Election Commissioner of Pakistan in the light of the well-reasoned judgments of this Court in the cases of Qazi Hussain Ahmed v. General Pervaiz Musharraf (PLD 2002 SC 857) (by a 9 Member Bench) and Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719) (by a 5-Member Bench). In the case of Qazi Hussain Ahmed (supra), it was held as under:- "It was also urged that under Article 62 of the Constitution, which contains qualifications for being elected as a member of the National Assembly, which are also the qualifications for election to the office of the President, cannot be read into Article 41 (2) of the Constitution. The said Article only provides that the President must be a person qualified to be elected as Member of the National Assembly. The disqualifications listed in Article 63 cannot be read into Article 41 (2) in view of the judgment of this Court in Aftab Shaban Mirani v. President of Pakistan (1998 SCMR 1863) which upheld the judgment of the Lahore High Court in the case reported as Muhammad Rafiq Tarrar v.
Justice Mukhtar Ahmad Junejo (PLD 1998 Lahore 414). The same view was also expressed in Muhammad Shahbaz Sharif v. Muhammad Iltaf Hussain (PLD 1995 Lahore 541).
' In Pakistan Lawyers Forum (supra), it was laid down that:- "69. The provisions of Article 63 (1) (d) have been made applicable to the continuation in office of the President after 31 December, 2004 by virtue of the proviso to clause (7) of Article 41, which was inserted by the 17th Amendment.
70. Any other clause or paragraph of Article 63 of the course does not apply to the President since it is settled law that the President is only required to be qualified to be a member of Parliament (as Provided by the Article 62) and is consequently not hit by the disqualifications contained in Article 63 of the Constitution. The argument of the petitioners that the President is subject to all the disqualifications contained in Article 63 of the Constitution ignores the settled law on this point as discussed and upheld most recently in the Qazi Hussain Ahmed's case.
71. The argument that the COAS could not have assumed the office of the President because of the definition of the "Service of Pakistan" in Article 260 and the disqualifications in respect of such persons contained in Article 63 is untenable as these have no application to the President.
72. The argument that on account of the oath made by him as a member of the Armed Forces under Article 244 read with the Third Schedule to the Constitution disqualified the COAS from being the President is misconceived. It overlooks the fact that clauses (7) and (8) of Article 41 carry non obstante clauses and these are to have effect notwithstanding anything contained in the Constitution. Clauses (7) and (8) of Article 41, therefore, override Article 244 and the oath in the Third Schedule like they override Articles 43 and 260 of the Constitution.
73. Since Article 63 (1) (d) has now been made specifically applicable to the continuance in office by the President after 31st December, 2004 through the proviso, it is, therefore, clear that the President would be disqualified from continuing in office qua President if he was to hold an office of profit in the service of Pakistan, except 'an office declared by law not to disqualify its holder'. All that has happened in the instant case is that by virtue of Another Office Act, parliament has declared that the office of the COAS is an office, which does not disqualify its holder. The President is, therefore, not barred by the proviso to clause (7) of Article 41 from continuing in office as both the Chief of Army Staff (COAS) and the President because the position of COAS has been declared by law not to disqualify its holder as expressly contemplated by Article 63(1)(d)."
' In our opinion, the President General Pervez Musharraf, the respondent No,3 was qualified for and did not suffer from any disqualification, under the Constitution or/and the law, for presidential election, 2007. The view taken by the Chief Election Commissioner is unexceptionable.
6. As to the question of maintainability of this petition, it would suffice to follow the majority judgment of this Court in the recent case of Jamat-e-Islami v. Federation of Pakistan (Constitutional Petition No,59 of 2007, decided on 28-9-2007) (PLD 2008 SC 30) wherein it was held that "the questions involved in the matter of election of the President did not relate to any of the fundamental rights guaranteed in Part-II, Chapter I of the Conetitution (Articles 8 to 28). Therefore, the petitions under Article 184(3) of the Constitution were not maintainable." Even otherwise, in view of clause (6) of Article 41 of the Constitution, the validity of the election of the President cannot be called in question by or before any Court.
7. For the foregoing reasons, Constitutional Petition No,73 of 2007 and Criminal Original Petition No,51 of 20007 are hereby dismissed. Consequently, the interim stay order dated 5-10-2007 of withholding the issuance of final notification of the result of election of the returned candidate to the office of the President is hereby vacated. The Chief Election Commissioner of Pakistan and Federal Government are directed to take all the necessary steps by 1st December, 2007, for final announcement of the result of the presidential election and issuance of public notification in accordance with the Constitution and the law. As already undertaken in writing on 18-9-2007 before this Court by Syed Sharifuddin Pirzada, learned Senior Advocate Supreme Court for the respondent No,3 and Malik Muhammad Qayyum, learned Attorney General for Pakistan, the President General Pervez Muhsarraf shall relinquish the office of the Chief of Army Staff before taking oath of office of President of Islamic Republic of Pakistan, for the second term.