ISLAMABAD - General (Retd) Pervez Musharraf promulgated emergency on 3rd November 2007 in Pakistan on his own discretion as then chief of army staff and not on the advice of the then prime minister.
Musharraf's counsel Ibrahim Satti accepted this on Wednesday before 14-member bench of the Supreme Court, which was hearing former President's review petitions against 31st July 2009 judgement, while responding to series of questions.
The bench asked the counsel, "You have accepted that Musharraf had taken extra-constitutional measures and passing unconstitutional orders is not high treason." During the proceeding Satti read ex-PM Shaukat Aziz's letter showing Musharraf acted on the advice of the former premier. Before the promulgation of emergency Shaukat Aziz had written a letter to Pervez Musharraf complaining about judges of the superior judiciary that they were interfering in the executive affairs, about worsening law and order, rising terrorism and the deteriorating economic condition in the country.
"Did the Prime Minister advise the President under Article 48 of the Constitution to take action in violation of the Constitution?" asked Justice Chaudhry Ijaz. Former military dictator's counsel reply was 'no', but said: "The PM wrote letter to Pervez Musharraf as COAS." Justice Ijaz further asked him "You want to say that the PM advised to COAS and not to the President, adding the PM asked the Army to intervene."
Satti told that ex-PM also complained that the courts had released the terrorists involved in heinous crimes. The court observed that only those judges, including Justice (Retd) Faqir Khokkar, Justice (Retd) Javed Butter and Justice Nawaz Abbasi, were then given oath who had released the terrorists.
The counsel pleaded although the emergency was imposed in the country yet except judiciary, other institutions including Senate and National Assembly were functioning normally in accordance with the Constitution. The court remarked, "Then emergency was meant only for judiciary?"
Justice Saqib Nisar asked the counsel, "You want to say that extra-constitutional steps were taken in the past and the courts later on validated them and it would also be done in Pervez Musharraf case and in the future too." Justice Sarmad Jalal Osmany remarked that it amounts to make habit of it.
The court said Musharraf wanted his extra-constitutional measure be ignored as per the past practice and now the federal government should not have filed the complaint against Musharraf for high treason. Satti argued that in Asma Jahangir, Nusrat Bhutto and Zafar Ali Shah cases, it has been emphasised that for the security and protection of the country the constitution could be deviated.
The court also dispelled the impression that Justice (Retd) Rana Bhagwandas signed 7-member bench order against 3rd November action on 5th November and not on the same day. Justice Nasirul Mulk informed the counsel that Rana Bhagwandas signed the order the same day it was passed, saying he was also present there. Justice Saqib said Justice (Retd) Bhagwandas phoned him on 3rd November at 6:15 p.m. and told that they have passed order against the proclamation of emergency.
Satti also argued that many others have also violated the constitution with Musharraf but why his client was singled out.
Justice Khosa said in high treason case against Musharraf the complainant is the federal government and told him to plead this issue before the relevant forum. He further said it was the complainant's choice against whom he/she get a case registered, adding neither the court nor accused could force the complainant to include other persons who have committed a crime. Justice Jawwad asked Satti, "You want that the court should interfere in Musharraf's favour."
The court dismissed Musharraf counsels' arguments on biasness. Sharif-ud-Din Pirzada quoting international judgements tried to prove that the 14-member bench passed the 31st July judgment under the influence of former Chief Justice Iftikhar Muhammad Chaudhry.
The court asked the counsel if he was alleging ex-CJP's prejudice towards Musharraf then place on record the material facts.
Justice Asif Saeed Khosa questioned how come the 31st July judgment be vitiated on the basis of one judge biasness.
Pirzada said Justice (Retd) Iftikhar was disqualified because of enmity with Musharraf, as he had removed him.
Justice Jawwad S Khawaja inquired whether Musharraf had abused ex-CJP, adding if he had done so then provide concrete evidence of it. He said now the judges of superior court deliver the judgments without fear and prejudice.
Justice Gulzar Ahmed said as Musharraf was fully aware of the Sindh High Court Bar Association case proceedings going in the apex court then why did he not raise objections about it and challenged the judgment earlier.
Satti has concluded his arguments.
Appreciating Satti's assistance, Justice Tassaduq Jillani said each state organ has to perform within its limits but if it does not then it is the duty of the apex court to interfere.
The court has adjourned the case till today (Thursday). Pirzada would resume his arguments.