ISLAMABAD, April 22: The Supreme Court’s nine-member bench, which took up petitions challenging the assumption of office of president by Gen Pervez Musharraf and holding of referendum, observed on Monday that it had the jurisdiction to hear the petitions no matter if the Referendum Order stated that no court could examine any action taken under that order.
Dr Farooq Hasan, counsel for Jamat-i-Islami chief Qazi Hussain Ahmad, opened the arguments, stating that Gen Pervez Musharraf effected first coup d’etat on October 12, 1999; second on June 20, 2001, when he assumed the office of president by removing the elected president, and was fully geared up to effect the third coup d’etat on April 30 to become president.
The counsel in his hard-hitting arguments, stated that validation of military takeover by the Supreme Court was conditional. The present regime had the status of the transitory government and was given powers by the Supreme Court to legislate only in matters where the existing Constitution provided no answer, he said.
The SC bench consisted of Chief Justice Sheikh Riaz Ahmad, Justice Munir A. Sheikh, Justice Iftikhar Mohammad Chaudhry, Justice Qazi Mohammad Farooq, Justice Mian Mohammad Ajmal, Justice Deedar Hussain Shah, Justice Hamid Ali Mirza, Justice Abdul Hameed Dogar and Justice Mohammad Nawaz Abbasi.
The government would be defended by Attorney-General Makhdoom Ali Khan, Syed Sharifuddin Pirzada, Abdul Hafeez Pirzada, Maqbool Elahi Malik, Advocate-General Punjab, and Syed Iftikhar Hussain Gilani.
The Supreme Court has taken up five petitions, four challenging assumption of office of president by Gen Musharraf and holding of referendum, while the fifth has sought a direction that holding referendum for the presidential election was valid.
The petitioners are Qazi Hussain Ahmad, Nawabzada Nasrullah Khan, LHC, Supreme Court Bar Association, Lahore High Court Bar Association Rawalpindi Bench and Awami Himayat Tehrik Pakistan through its founder chairman Maulvi Syed Iqbal Haider.
Dr Farooq Hasan stated that the Referendum Order was amounted to amendment to the Constitution. He said Constitution provided complete mechanism for the election of president, and using a referendum clause for the purpose of election of the president was no less than amendment to the Constitution.
He said Gen Pervez Musharraf’s holding of office of Chief Executive was accepted as lawful only because the Supreme Court had approved it.
He further stated that those political forces, not conforming to the views of the military government, were not allowed to conduct legitimate political activities, but Gen Pervez Musharraf was visiting every nook and corner of the country to muster support for his referendum.
The counsel stated that military takeover was validated by the Supreme Court on the grounds that the previous government was trying to politicise the military. Now the military government, he stated, was doing exactly the same as political rallies were being addressed by the COAS with corps commanders sitting on the stage.
Dr Farooq Hasan stated that the mechanism of referendum was not meant for the election of president of Pakistan.
The counsel said that politicising the military was not permissible in the light of the apex court’s judgment in the Syed Zafar Ali Shah case but the present government was doing exactly that.
He said that respondent No 1 (Gen Pervez Musharraf) in league with respondent No 2 (federal government) was using the sources of the State of Pakistan for his political ambitions.
Attempting to define the status of the present government, the counsel stated that status of the military government was of third class government whose legitimacy hanged on the order of the Supreme Court.
Farooq Hasan said the Supreme Court had granted powers to the government to amend the Constitution only to ensure smooth working of the government up to October 12, 2002.
He said the military government did not amend the Constitution in the last two-and-a-half years, but had stated only now that it was preparing a constitutional package.
The counsel contended that the present government had no power whatsoever to take such action whose effect would go beyond October 12, 2002.
He said his client, Qazi Hussain Ahmad, was not allowed to enter three provinces and its movement in Punjab was also not free of obstruction. The present ruler, he stated, was acting in despotic manner.
The counsel stated that Gen Pervez Musharraf was wrong in saying that three were centres of power — the president, the prime minister and the COAS. He stated that the military ruler was totally wrong as the army stood nowhere in the parliamentary form of government.
He said the three-year period was given to the present government only for two purposes, to prepare electoral rolls and to conduct accountability. The government had no power to present a constitutional package as they were not the constituent assembly, he said.
He argued that Gen Pervez Musharraf, being still in service, was not entitled to contest election as provided in Article 141 of the Constitution.
He said that Gen Pervez Musharraf had no right to decide what was good for the country. At the time of hearing of petitions challenging military takeover constitutional expert Syed Sharifuddin Pirzada had made a statement that army would go back to barracks. Now they were talking of National Security Council which will have services chiefs as its members, he said.
The counsel also referred to the statement made by Syed Sharifuddin Pirzada in the Nusrat Bhutto case during the regime of Gen Ziaul Haq. He said that 90 days of Sharifuddin Pirzada ended in 11 years and if three years, which he had sought for the present military ruler, were calculated on the basis of same formula, a century would be required to send the military back to barracks.
Farooq Hasan stated that international community was closely monitoring the developments in Pakistan and prominent newspapers, like Washington Post and New York Times, had commented on the holding of referendum. In one editorial, he stated, Gen Pervez Musharraf had been dubbed “Perpetual President.”
At this juncture, Chief Justice Sheikh Riaz asked the counsel not to pay much attention to what was being written in foreign press and continue arguments on legal plane.
The counsel said that it was general principle of jurisprudence that nobody could be judge in his own cause and use the office for his personal benefits.
He said no ingredient of a democratic society was allowed to survive, except for the press that too only to some extent. He said only independent press was showing some independence, allowing the people to express their views.
He said there were indications that Gen Pervez Musharraf also wanted to shut that window of free press as he had been complaining in the public meetings that press was writing against him.
Dr Farooq Hasan was still on his feet when the court rose to assemble again on Tuesday.
The chief justice asked the counsel how much time he would require to complete his arguments.
The counsel stated that at least two more days, Tuesday and Wednesday, would be needed to complete arguments. The court rose by suggesting that he should try to complete his arguments on Tuesday.
The court proceedings were attended by Qazi Hussain Ahmad, Nawabzada Nasrullah Khan, Naveed Malik, Liaquat Baloch and Munawwar Hasan.
