ISLAMABAD – The government, in a review petition challenging the SC judgment in Asghar Khan case, has contended that office of the President is political one and not in the Service of Pakistan, and the apex court has no authority to issue such observations regarding the president.

The civil review petition presented on Saturday was however returned by the SC Registrar Office because it did not have the Rs10,000 court fees attached to it. The petition is likely to be resubmitted on Monday after removal of the objection, government sources said.

The federal government had moved this petition through law secretary under article 188 of the constitution read with Order XXVI of the Supreme Court Rules 1980 for review of SC order, dated 19-10-2012, in human rights case No 19/1996 – popularly known as Asghar Khan case.

The case involved the Inter-services Intelligence’s (ISI) dishing out Rs140 million to certain politicians in the 1990 elections to create the Islami Jamhoori Ittehad (IJI) and prevent Benazir Bhutto’s PPP from winning the polls.

The SC’s detailed verdict declared the role played by then army chief Gen (r) Mirza Aslam Beg and ISI chief Lt-Gen ( r) Asad Durrani in breach of their oaths, and dwelt at length on the role of the president and the involvement of his office in politics.

The SC verdict had said that the president being head of the state represents unity of republic. He or she therefore has a constitutional duty to represent this unity and is not supposed to support any particular candidate or political group.

“The President of Pakistan is not supposed to indulge in politics as it has been established in the role of President Ghulam Ishaq Khan [during his tenure]… [he] has no authority to create an election cell or support, in any manner, a favoured candidate or political party, either by issuing directions to the armed forces or to civilians.”

The government petition said that the Supreme Court does not have the authority to issue such an order regarding the president, arguing that court’s observation regarding the presidency needs to be reviewed. It also contended that the conduct of the present president (Asif Ali Zardari) of the county was never an issue in Asghar Khan case, nor was it relevant for a decision on the matter.

“The observations made by this honourable amount to an error on the face of record, therefore, the order is liable to be reviewed,” the petition says, adding that the court may have similarly refrained from issuing notice to the secretary to the president. “By doing so, this court has applied a different yardstick to the office of the president.”

The government contended that it is an established practice based on the sound precedents that the court would not involve itself in academic or hypothetical questions. “Despite this background and clarification, the court passed observations, which amount to the directions to the president that are purely based on hypothetical and assumed facts.” As the court has departed from the established practice in making observations against the Presidency, there is an error which needs to be rectified, it said.

The government petition said that all institutions of the state should be strengthened and no observation should be made which may weaken the institutions. It also argued that the court has rightly come to the conclusion that it was not the institution of the Army or that of the ISI which was involved in doctoring the 1990 general elections, rather the interference was made by Gen (r) Mirza Aslam Beg and Gen (r) Muhammad Asad Durrani in their personal and individual capacity.

“Similarly, this court should have noted that the alleged activities of the then president Ghulam Ishaq Khan were conducted in his individual capacity and not on behalf of the Presidency as an institution. It may kindly be noted that no allegation, whatsoever, was made during the proceedings that the incumbent president (Asif Zardari) had created any Election Cell in the Presidency.”

The review petition said that the court has referred to the oath of the president, which in substance is similar to the oath of the prime minister, the speaker, the ministers, the judges, etc. All the holders of these offices are required to act in the performance of their functions in accordance with the constitution and the law.

“They are required to treat all people equally without fear or favour, affection or ill-will. The oath of the president could not have been used to single out the president and make observations against him as there was no factual basis for doing so, nor was there any issue of that nature before the court.”

The government further stated that the president is elected by a large number of members of an electoral college, comprising the national assembly, the senate, and all the four provincial assemblies. The president is invariably nominee of a political party who seeks votes and who is supported in this process by political parties. The office of the president is, thus, a political office – and aspect which cannot be ignored.

The president is required by his oath to perform the functions of his office in a fair and impartial manner, and it need to be emphasised that there was no allegation before this court that in the performance of his official functions, the president has acted in any manner against the constitution, the petition said. The government said that the president is the symbolic fountain of all authority in the state.

However, after the 18th amendment, he does not exercise any executive powers but remains symbolic source of all power in the country, the petition said. Mentioning the president’s functions, it said that the court’s observation regarding the office of the president was given on purely hypothetical and assumed conclusions, an error which needs to be corrected and the observations passed need to be withdrawn.

The president has to communicate with heads of other states and heads of governments, the government said. Any action taken or words spoken by the president are understood as having been taken and said on behalf of the people of Pakistan, it said. In honouring the president, the nation honours itself. It is, therefore, necessary that the respect which is due to the president should be shown by exercising utmost restraint in dealing with the office, it added.

Regarding the court’s observations that the office of the president is covered by the expression ‘Service of Pakistan’ under article 260 of the constitution, the petition said that the SC while arriving at this conclusion, did not consider the Lahore High Court’s contrary judgments, which are reported as PLD 2011 Lahore Page 382 (Larger Bench), and PLD 1995 Lahore Page 541 (Shahbaz Sharif case).

“The president is the head of state and all executive actions are taken in his name under the constitution. All appointments to the Service of Pakistan are made by the president. This being so, it is incongruous that the head of state should also be held to be a servant of the state.”

It also objected that the effect of the SC judgment had overruled the judgment of four learned judges in the Pakistan Lawyers Forum case. “It has been the practice of this court that only a larger bench will overrule a judgment of the High Court delivered by four judges. On that score also, the judgment of this court needs to be reviewed as there is an error of law on the face of the record.”