November 16, 2007	Friday	Ziqa’ad 05, 1428

ISLAMABAD, Nov 15: A member of a 10-judge Supreme Court bench hearing petitions against the proclamation of emergency and the Provisional Constitution Order is puzzled whether it is “a case of friendly fire”.

“Yes it is a difficult case, (but) should we take it to be a case of friendly fire?” observed Justice Faqir Mohammad Khokhar as the bench heard the petitions on Thursday.

Tikka Iqbal Mohammad Khan and Watan Party chairman Barrister Zafarullah Khan have filed the petitions challenging the emergency rule, PCO and curbs imposed on judges of superior courts, electronic media and the freedom of citizens.

“Why don’t you take a definitive stand?” Justice Khokhar asked Advocate Irfan Qadir, the counsel for Tikka Khan, when he was presenting his arguments.

“This is a difficult case,” Mr Qadir replied. “Yes it is a difficult case, should we take it to be a case of friendly fire?” Justice Khokhar said.

Justice Mohammad Nawaz Abbasi said the right to life was not only guaranteed by the Constitution but it was also a natural right and could not be taken away, except by Allah Almighty.

Advocate Qadir cited the 2000 Zafar Ali Shah case to establish that fundamental rights had never been suspended and that no-one, including the army chief, had the mandate to suspend the rights. It had also been held in the case that the Supreme Court’s authority of judicial review could not be taken away even when a state of emergency was proclaimed, he said.

In his reply to the petitions, Chief of the Army Staff Gen Pervez Musharraf had pleaded dismissal of the petitions for not being maintainable because no court, including the apex court, had the authority to question the proclamation of emergency, PCO and the Oath of Office (judges) Order 2007.

Mr Qadir said it had been held in the Zafar Ali Shah case that superior courts would continue to function with powers of judicial review intact and that the Constitution would remain the supreme law of the land.

Justice Khokhar said that during the hearing in that case, senior counsel Sharifuddin Pirzada had categorically stated in the court that the jurisdiction of the Supreme Court under Article 184(3) would remain intact.

Mr Qadir maintained that the Chief of Army Staff had no legal or constitutional authority to impose emergency because emergency could only be imposed under provisions of the Constitution, that too by the president.

Moreover, he argued, prerequisites for proclaiming emergency, as suggested in the Constitution, had not been met. He said that the first ingredient for imposing emergency was the satisfaction of the president and on the face of the current facts that satisfaction was lacking. The reasons sought for the November 3 emergency were not justified. Therefore, the counsel said, there was no legal sanction behind the current state of emergency.

On the law and order situation, Justice Khokhar asked the counsel whose responsibility it was to maintain law and order.

“The government,” Advocate Qadir replied. “But the government is still functioning,” Justice Khokhar said. “Tell us why he (Gen Musharraf) had done so?” Justice M. Javed Buttar asked the counsel.

Headed by Chief Justice Abdul Hameed Dogar, the bench will resume hearing on Friday.