Pakistan and Future

Was it not the moral duty of the members of parliament to say that our term is expiring, how can we elect the president?

and

The best forum for solving the political issues is parliament and public.

, Honourable Justice Javaid Iqbal said. So a member of parliament must possess the highest moral values, and public should solve the political problems even if they have to come on roads and die in hundreds.
Today (Thursday October 25th) was the most depressing day in the supreme court of Pakistan, where a parliamentarian/lawyer is arguing to save the constitution of Pakistan in front of the honourable Judges who declared several times in the history that abrogation of constitution is legal.  Let me quote here the “Oath of Judges” as per the constitution.

Chief Justice of Pakistan or of a High Court or Judge of The Supreme Court or a High Court
[Articles 178 and 194]
(In the name of Allah, the most Beneficent, the most Merciful.)
I, ____________, do solemnly swear that I will bear true faith and allegiance to Pakistan:
That, as Chief Justice of Pakistan (or a Judge of the Supreme Court of Pakistan or Chief Justice or a Judge of the High Court for the Province or Provinces of ____________) I will discharge my duties, and perform my functions, honestly to the best of my ability and faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law:
That I will abide by the code of conduct issued by the Supreme Judicial Council:
That I will not allow my personal interest to influence my official conduct or my official decisions:
That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan:
And that, in all circumstances, I will do right to all manner of people, according to law, without fear or favor, affection or ill-will.

A judge (not the lawyer) is bound by oath to preserve, protect and defend the constitution , and let us not forget that a member of armed forces is bound by oath to “uphold the Constitution of the Islamic Republic of Pakistan“. I’ll discuss how both of them have honoured their oath in some separate discussion. But let me first touch upon the last argument of Aitzaz submissions,  He contended that the outgoing assemblies were incompetent electorate to elect the president for the next term as election to the office of the president mentioned in clause 7 of Article 41 had to take place after the expiry of his term of five years. And for this he does not bring in moral duties of parliamentarians in question, it is purely a constitutional/legal matter and needs to be decided by the Supreme Court. Let quote here the article 41 (3) :

[(3) The President to be elected after the expiration of the term specified in clause ( 7) shall be elected in accordance with the provisions of the Second Schedule by the members of an electoral college consisting of:
(a) the members of both Houses; and
(b) the members of the Provincial Assemblies.

So according to article 41 (3) , the election of president must be held after the expiration of the term of the current president i.e. 15th November.  My learned readers will point out that the article 41(4) says it should be held 30 days before the expiry of term , yes this is a book of contradictions not because the parlimentarians wanted to have these contradictions but because its “Sons in uniform” did their best to make it a laughing stock.
Before the attorney general proceeds with his arguments, let me sum them up in terms of Justice Javaid Iqbal and some other Judge’s remarks.

1. How can we ignore the previous important judgments by this court?

   This was the question Justice Javaid Iqbal asked innocently. The “important judgments” are Pakistan Lawyers Forum Case Judgment and Qazi Hussein Ahmad Case. Why these cases are being quoted by the Pro General judges and from General’s lawyers? These judgements allowed the General to have his cake and it eat too. But let me quote a paragraph from the Lawyers forum Judgment.

   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.

   Right! The 41(7) and 41(8) can override the other articles, but these were only applicable to the first term of office.  41(7) is quite clear that it is related to “Chief Executive of Pakistan” , the General used to call himself of this before taking oath as the president , and 41(8) is clearly defined as :

   Provided that clauses (8) and (9) shall be valid only for the forthcoming vote of confidence for the current term of the President in office.

2. As Nadeem Sheikh pointed out here,
   

   he was taken aback by Justice Javed Iqbal when he commented that in his opinion the article 63 dealt with conditions for disqualification AFTER the president’s election had taken place whereas the article 63 clearly says in the opening sentences that “A person shall be disqualified FROM BEING ELECTED OR CHOSEN AS”.

   Let me quote here a paragraph from the Lawyers Forum judgment.

   Any other clause or paragraph of Article 63 of 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 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 Qazi Hussain Ahmed’s case.

   Reference to “Any other clause or paragraph of Article 63” is due to the fact that just in the previous paragraph in the same judgment they had accepted “The provisions of Article 63(1)(d) have been made applicable to the continuation in office of the President ” , so look at the contradictions in the judgment.
   And then Justice Javaid Iqbal insists we can not ignore these judgements.

But let me reiterate even if the Judges try their best to rely upon these judgements it is very hard for them to just declare the General as president , unless they bring another contradictory judgment like they one they love most.