Eligibility for election: CEC rejects plea against Zardari -Pakistan Press Foundation (PPF)

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Eligibility for election: CEC rejects plea against Zardari

By Iftikhar A. Khan

ISLAMABAD: The Chief Election Commissioner on Monday dismissed a petition challenging the eligibility of President Asif Ali Zardari, saying that the validity of nomination papers filed in 2008 for the office could not be allowed to be challenged in 2010 on the basis of ‘flimsy, fake and fabricated grounds’.

In his judgment, CEC Justice (retd) Hamid Ali Mirza referred to Article 41 (8) of the Constitution: “Validity of the election of the president shall not be called into question by or before any court or other authority.”

He also pointed out that under Rule 5 (5) of the Presidential Election Rules, at the time of scrutiny, the decision of a returning officer accepting or rejecting nomination papers shall be final.

The petition was filed by Moulvi Iqbal Haider.

“Under Rule 5 (2), the returning officer, in the presence of persons attending the scrutiny under paragraph 5 of the Schedule, examines the nomination papers and decides any objection raised by any such person to any such nomination. It was pointed out that no objection was raised at the time of scrutiny by anyone. Nomination papers of Asif Zardari were validly accepted and polls were held under the law in September 2008. It was also pointed out that petitioner Moulvi Iqbal Haider was not one of the validly nominated presidential candidates,” the CEC observed.

The judgment said that legally speaking, the allegations levelled were to be proved strictly in accordance with the law and any presumption, supposition and implication could not be a substitute of proof.

“In the circumstances, as no prima facie case having been made out by the petitioner, consequently this petition being not maintainable is dismissed in limine.”

The CEC said he had gone through the documents filed by the petitioner and observed that except photocopies of the Supreme Court order of Sept 12, 2007, the rest of the documents were photocopies of press releases, list of cases and reports published in different newspapers.

The judgment said: “None of the photocopies of documents indicates that Mr Zardari was ever convicted by any court of Pakistan or a foreign court.

“Mere fact that certain facts were published in the press or photocopies have been taken from internet would not by itself prove the conviction of or alleged disqualification of the respondent. Even the filing of cases or pendency thereof itself will not amount to conviction or disqualification of any kind stated in Article 63 of the Constitution.

“Under the law, previous conviction can be proved only by producing certified true copies of the judgments or extracts from the judgment or by any other reliable documentary evidence or such conviction as required under Section 511 of Criminal Procedure Code and Section 102 of Qanun-i-Shahadat (law of evidence) Order, 1984.

“Mere allegations either oral or in the print media cannot be substitute of proof of conviction as required under the law. There is no finding of any court of law holding (Asif Ali) Zardari to be suffering from disqualification as mentioned in Article 63 of the Constitution.”

Petitioner Iqbal Haider had sought re-scrutiny of the nomination papers of President Zardari on the ground that he was a beneficiary of the National Reconciliation Ordinance and his papers had been accepted provisionally when the ordinance was in operation. He argued that since the NRO had been declared void ab initio, all matters stood reopened.

Talking to reporters after the CEC decision, Mr Haider said he would challenge the judgment in the Supreme Court and also file a contempt petition against the CEC because his petition was based on implementation of the apex court’s NRO verdict in letter and spirit. He said since the Supreme Court had declared that newspaper clippings were enough material for evidence, the remarks made by the CEC about media reports amounted to contempt of court.

He said that under Article 218 of the Constitution, it was for the Election Commission to consider a challenge to disqualification, and not the Chief Election Commissioner. According to him, the CEC had ‘transgressed his powers’.
Source: Dawn
Date:3/2/2010