[JURIST] Three Pakistan Supreme Court judges removed from their positions after President Pervez Musharraf issued his declaration of emergency rule early this month have ruled against his eligibility to run for re-election as president while still Army chief of staff, according to a report Tuesday in Pakistan's News daily. A panel headed by Justice Rana Bhagwandas [Wikipedia profile] and including Justices Sardar Mohammad Raza Khan and Mian Shakirullah Jan – all currently under virtual house arrest in Islamabad after refusing to take oaths under the Provisional Constitution Order [text as amended] – filed a 58-page judgment with the Supreme Court registrar on Friday, but it was rejected and not issued publicly. On Monday, the reconstituted Supreme Court dismissed five out of six challenges [JURIST report] to Musharraf's re-election; the final challenge is expected to be disposed of later this week.

The News quotes the Bhagwandas panel judgment as concluding that Musharraf's tenure as head of the Army beyond December 31, 2004 was "illegal and unlawful". Addressing the current situation in Pakistan under emergency, the ousted judges wrote:

we earnestly feel that this country no longer can afford the luxury of resorting to circumvent the law and the constitutional mandate by upholding and affirming the draconian doctrine of necessity…

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…

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.

On the narrow question of Musharraf's eligibility for re-election the panel wrote:

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 unexpired 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 term for which new assemblies have to be elected a as a result of popular vote based upon election manifestos 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.

Bhagwandas – a former Acting Chief Justice named to replace Chief Justice Iftikhar Chaudhry [JURIST report] after he was suspended by Musharraf earlier this year for alleged misconduct – told the News that the judges had put a lot of time and effort into their ruling and that it should have been released. The News has more.