Counsel: Musharraf acted in discretion as army chief

April 13, 2014 - 12:58:52 am

ISLAMABAD: Pakistan’s former military ruler Pervez Musharraf imposed a state of emergency on November 3, 2007, “in his discretion” as Chief of Army Staff and not on the basis of a letter written by the then Prime Minister, Shaukat Aziz, one of his lawyers was quoted as having admitted in the Supreme Court during proceedings on his review petition against the July 31, 2009, judgment.

The detailed ruling on the dismissal of the review petition, which was released on Thursday, noted that Musharraf had proclaimed the state of emergency pursuant to a letter received from the  prime minister.

At this stage, the judgment said, the full court comprising 14 judges asked him as to whether the prime minister advised the president to act in violation of the Constitution, to which the answer was no.

The bench further asked him whether Shaukat Aziz had given any advice to impose emergency or Musharraf had acted in his own discretion, to which Satti replied that his client had acted in his own discretion.

The lawyer referred to the judgment of the apex court in Tikka Iqbal Muhammad Khan versus General Musharraf to contend that in that verdict the Supreme Court had validated the imposition of state of emergency and all orders passed by Musharraf.

He added that one of the factors mentioned by the prime minister in his letter for deteriorating law and order situation was interference by courts.

He submitted that in the Tikka Iqbal case some judges of the Supreme Court, during its hearing, had recused themselves on the ground that they had at one stage or the other released certain accused in terrorist cases but, nevertheless, they were invited to take the oath by the president.

He, in particular, referred to that paragraph of the proclamation of emergency which specifically mentions that the same was being done after deliberations in meetings with the governors, cabinet ministers and the corps commanders.

At this stage, the bench referred to Abdul Hameed Dogar versus Federation of Pakistan, wherein Dogar, who was made the chief justice after the imposition of a state of emergency, admitted and regretted that he did not comply with the order of the seven-member bench of the apex court, passed on November 3, 2007, against Musharraf’s strike on that day.

The detailed judgment, authored by Chief Justice Tassaduq Hussain Jillani, reproduced the original Article 6 of the Constitution and, after it was changed by the 18th amendment, highlighted the additions and changes.

It said that the nature of offence, definition and procedure of trial substantially remain the same except that another mode of suspending the Constitution in the definition clause had been added.

The major change brought was the addition of Article 6(2A), which provides for prohibition for courts, including the high court and Supreme Court, to validate it.

The ruling said that the apex court is seized of a review petition against a judgment wherein neither the question of Musharraf’s trial nor the retrospective or prospective effect of Article 6 were moot points.