The Hindu : Musharraf can continue as Army chief: HC

Online edition of India's National Newspaper
Thursday, Jun 12, 2003

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Musharraf can continue as Army chief: HC

By B. Muralidhar Reddy

ISLAMABAD June 11. Just days before his crucial visit to the United States, the Pakistan President, Pervez Musharraf, got a boost with the ruling by the Lahore High Court that his continuation as Chief of Army Staff (COAS) does not violate any provision in the Constitution.

The judgment should be a major disappointment for the Opposition, which stepped up its agitation in recent weeks, inside and outside Parliament, against the dual role of Gen. Musharraf as Army Chief and President.

The judgment has not come as a surprise to observers as in the third week of May, the Court had quashed a petition against the legal framework order incorporating controversial amendments made by Gen. Musharraf. The Court had held that Gen. Musharraf was entitled to make such changes by the Supreme Court in its judgment validating the October 1999 military coup.

The High Court verdict is an elaboration of its short order of May 19. It said Gen. Musharraf's decision to remain in uniform till a date of his own choice, ruling that this announcement was not impeding the State's functioning nor contravening any provision of the 1973 Constitution. The Chief Justice, Iftikhar Hussain Chaudhry, who headed a Division Bench with Justice Akhtar Shabbir as the other member, delivered the judgment on a Pakistan Lawyers Forum's petition seeking trial of Gen. Musharraf on treason charges under Article 6 of the 1973 Constitution. The Bench had dismissed the petition in limine on May 19 through a short order. It had stopped the media from covering the proceedings and publishing of the short order.

In the petition filed in April, the PLF pleaded that Gen. Musharraf had made a show of force by announcing that he would hold offices of Army chief and President simultaneously till his own decision to take off the uniform. It argued that the announcement amounted to treachery. The PLF president, A.K. Dogar, had also questioned the legality of last year's Presidential referendum and the President's authority to amend the Constitution, besides accusing him of not having transferred the power to a civilian government in violation of the Supreme Court order.

``We have not noted anything in the Constitution which would debar the President from remaining in uniform nor is his holding the two offices simultaneously creating any hindrance to the smooth functioning of the Government or any other institution,'' the Bench noted.

The court further ruled that, "none of the constitutional provisions is affected if the President remains in uniform. Therefore, the decision by the President that he would take off the uniform on a date of his own choice does not impinge upon any constitutional provision and the Article 6, in no way is attracted to this case."

The court refused to take into account the argument that the President was not chosen in accordance with the constitutional provisions and Article 41(7) did not confer any right on Gen. Musharraf to hold the President's office for five years. The court declared the status of Referendum Order 2002 as unquestionable, ruling that this order was not based on any mala fide intentions and was promulgated in accordance with the Proclamation of Emergency Order 1999, which had already been validated by the Supreme Court in the Zafar Ali Shah's case.

Declaring the President's election valid, it observed: "The President was elected under the provisions of the Referendum Order 2002, as the Electoral College prescribed by the Constitution for the election of the President did not even exist. Therefore, the provisions of the Constitution on this subject would not attract to this case."

The court rejected the plea that Gen. Musharraf had subverted the Constitution by not transferring the power to the Prime Minister and the real power still vested in his office. "No material has been placed before us which could show that the Prime Minister was not exercising his powers vested in him by the Constitution nor the current civilian government was dysfunctional."

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