Wardi Special: Ineligibility of the Incumbent
Understanding Pakistan Project Team September 23rd, 2007
Guest Post By: Salman Akram Raja
THE question of General Musharraf’s eligibility or otherwise for re-election as president in uniform will depend critically on the interpretation of Article 43 of the Constitution that is ultimately adopted by the Supreme Court. Article 43 states that “the president shall not hold any office of profit in the service of Pakistan.” It is settled law that candidates for election must be free from conditions that render them ineligible on the date of filing of nomination papers.
Can Article 43 be read as imposing a pre-election ineligibility condition or does it apply only after a person has been elected as president, requiring him to relinquish an office of profit held by him at the time of his election? In answering these questions, the overall scheme of the Constitution must be considered.
Article 41(2) states that a person shall not be qualified for election as president unless he is qualified to be elected as member of the National Assembly. Qualifications for election as member of the National Assembly are given in Article 62 while applicable disqualifications are listed in Article 63. For a person to be elected as member of the National Assembly he must fulfil the qualifications of Article 62 and be free of the disqualifications of Article 63.
On this basis it can be reasonably argued that a person may not be elected president unless he is both qualified in terms of Article 62 and not disqualified in terms of Article 63. Article 63(1)(d), if read with Article 41(2), disqualifies any person from being elected the president of the country if “he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder.”
Since Article 63(1)(d) would, if applicable to the president’s election, disqualify a person holding an office of profit from being a candidate the possibility of a person becoming president-elect while holding such an office would stand obviated.If this interpretation is accepted then pre-election candidature requirements stand entirely determined by Articles 62 and 63 while the role of Article 43 in the constitutional scheme is narrowed down to a specification of post-election restrictions applicable to the office of the president.
This, however, is not the interpretation accepted by the superior courts of Pakistan.
In 1998, in Rafiq Tarar’s case a full bench of the Lahore High Court headed by then Justice Malik Qayyum held that since Article 41(2) only made reference to the qualifications applicable for election as a member of the National Assembly, and not to the disqualifications applicable to such a member, the ineligibility conditions listed in Article 63 were not applicable to a presidential candidate.
This interpretation was upheld by the Supreme Court and was re-affirmed in 2005 in the case of Pakistan Lawyers Forum versus The Federation by a five-member bench of the Supreme Court.
A consequence of this interpretation is that a person holding an office of profit covered by Article 63(1)(d), such as the chief of the army staff, would nevertheless be eligible to participate in a presidential election, unless barred by some other restriction in the Constitution.
Given that the superior courts had held Article 63 inapplicable to presidential elections, the only way, prior to the Seventeenth Amendment in 2002, to bar a person holding an office of profit from being a presidential candidate was to read Article 43 as stipulating a pre-election disqualification as well as a post-election restriction. No occasion had, however, arisen prior to the Seventeenth Amendment in 2002 to judicially test the scope of Article 43 as a pre-election disqualification.
By amending Article 41(7), the Seventeenth Amendment made Article 63(1)(d) applicable to presidential elections with effect from December 31, 2004. In the case of Pakistan Lawyers Forum, the Supreme Court observed that this was the first time that any part of Article 63 had been made applicable to presidential candidates. It is important to bear in mind that the amended Article 41(7) not only made Article 63(1)(d) applicable to presidential elections but also excluded the effect of Article 43 for General Musharraf’s first term in office.
Unlike the temporarily excluded Article 43 which permits no exemptions, Article 63(1)(d) allows parliament to exempt, through an act, the holder of any office of profit from the ineligibility created by this Article. Such an act, President to Hold Another Office Act of 2004, was passed by the present parliament for the benefit of General Musharraf, thereby enabling him to function as both the president and the army chief, despite the application of Article 63(1)(d) to the president as of December 31, 2004.
The question that the Supreme Court will now have to address is whether the issue of pre-election ineligibility is entirely regulated by Article 63(1)(d) as applied by the amended Article 41(7) or whether Article 43 also governs the ineligibility of presidential candidates.
General Musharraf’s lawyers will argue that Article 63(1)(d) read with the exemption granted to the incumbent by the President to Hold Another Office Act of 2004 regulates, to the exclusion of Article 43, the question of the incumbent’s ineligibility.
They will base this argument on the submission that while Article 43 was never meant to apply to pre-election ineligibility it has, in any case, been excluded by the Seventeenth Amendment until at least November 16, 2007, when General Musharraf’s current term in office expires.Consequently, General Musharraf can file his nomination papers in uniform without bothering about compliance with the provisions of either Article 43 or 63(1)(d) on the date of filing. He can relinquish the post of army chief after being re-elected president at the time that Article 43 becomes effective.
The contrary argument in support of reading Article 43 as imposing a restriction on presidential candidates will invoke the sheer repugnance to the overall constitutional scheme of accepting that prior to the application of Article 63(1)(d) to presidential candidates in 2002, all holders of public office, including the army chief, were free to contest for the presidency and to give up their office only if elected.
The possibility of such a situation coming about, unless Article 43 were expansively interpreted to apply as a pre-election disability, had arisen on account of the superior court judgments declaring Article 63 inapplicable to presidential candidates. There will perhaps be occasion to revisit these judgments.
Reading Article 43 as a pre-election disability can lead to further questions: if Articles 63(1)(d) and 43 both apply to pre-election ineligibility as regards the coming election how are the two provisions to be read together and what is the effect of the exclusion of Article 43 by Article 41(7) on General Musharraf’s bid to contest in uniform?
Equally, what is the effect of the exemption from the bar of Article 63(1)(d) as regards the similar condition of ineligibility imposed by Article 43, if indeed Article 43 is accepted as laying down a pre-election disability? Can it not be argued that by lifting the restriction imposed by Article 63(1)(d) as regards the army chief being a presidential candidate the President to Hold Another Office Act of 2004 has also, by implication, lifted the similar ineligibility condition imposed by Article 43? Otherwise would the Act of 2004 or a similar successor statute not be rendered an exercise in futility?
Actions, particularly legislation, contemplated by the Constitution must be saved from being rendered redundant. Consequently, it may be argued that as long as Article 63(1)(d) remains subject to an exemption with respect to the office of the army chief Article 43 will also remain inapplicable.
While these questions deserve attention, a harmonious reading of the Constitution, consistent with past judgments, leaves little room for doubt. It is Article 43 that primarily regulates ineligibility for election as president. The amended provisions of Article 41(7) had only temporarily excluded the absolute constitutional bar contained in Article 43 against holders of public office being elected president. At the same time, Article 63(1)(d) was made applicable to presidential elections with discretion given to parliament to lift the ineligibility condition as regards a holder of any public office.
This discretionary regime will stand eclipsed with the expiry of General Musharraf’s first term and the complete revival of Article 43. In any case, as regards matters not related to General Musharraf’s first term, Article 43 has remained effective.
In particular, Article 43 continues to govern all matters pertaining to the upcoming presidential election for a term subsequent to General Musharraf’s first term in office. This includes the question of ineligibility or otherwise of holders of office of profit at the time of the filing of nomination papers. It is at this stage that General Musharraf is liable to fail, if in uniform on the filing date.
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The writer is an advocate of the Supreme Court. This article was originally published in The Daily Dawn and is being reproduced here in order to encourage a dialogue.
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