ISLAMABAD, Nov 20: Supreme Court Chief Justice Abdul Hameed Dogar said on Tuesday that the failure of legislatures to properly perform their functions always led to military interventions in the country.

He made this observation during the hearing of identical petitions challenging the validity of emergency and the Provisional Constitution Order.

A seven-member bench of the Supreme Court headed by the Chief Justice is likely to announce a short order on the petitions on Wednesday. Other members of the bench are: Justice Ejazul Hassan, Justice Mohammad Qaim Jan Khan, Justice Mohammad Moosa K. Leghari, Justice Chaudhry Ejaz Yousaf, Justice Mohammad Akhtar Shabbir and Justice Zia Pervez.

The Chief Justice said that jurisdiction of the courts remained intact even under the martial law and powers of the judiciary could not be curtailed through emergency. “Courts are working in routine,” he remarked.

He said the courts had the powers of judicial review even on matters relating to extra-constitutional steps, like the imposition of emergency.

Barrister Zafarullah Khan of the Watan Party appearing before the court as petitioner-in-person submitted that the president could have placed before parliament what he had cited as reasons for imposition of emergency, instead of taking the unconstitutional step. He said that emergency had been proclaimed in a hasty manner and the supra-constitutional step must be reversed forthwith.

Justice Chaudhry Ijaz Yousaf observed that the Constitution did not provide solution to every problem. “The Constitution provides no solution to a situation where organs of the state start interfering in each others’ domain and engage in confrontation.”

Barrister Zafarullah said that emergency could be proclaimed only by the president and not by the army chief. He said that at a time when Gen Musharraf was waiting to take the oath as civilian president he was a ceremonial army chief.

The chief justice rejected the argument and said that parliament had allowed General Musharraf to hold both the offices by adopting the 17th Constitutional Amendment.

Mr Zafarullah argued that there was a huge difference between the emergency of 1999 and 2007. He said that under Article 245 of the Constitution, emergency could be proclaimed only by the president being a public representative and not by the army chief.

Referring to Clause 2 (3) of the PCO which says that the Supreme Court or high courts and any other court shall not have the power to issue any order against the president, prime minister or any person exercising powers or jurisdiction under their authority, Mr Zafarullah stated the clause indicated that the army chief was subordinate to the president.

He argued that the Chief of Army Staff had no authority under the Constitution to impose emergency or issue the PCO. He said that the president could proclaim emergency only on the advice of the prime minister and that too required validation by parliament.

He said that emergency could be imposed in a particular area where the law and order situation was disturbed.

The Chief Justice observed that emergency imposed this time was an extra-constitutional measure and had no connection with the Constitution because it had been held in abeyance.

The court asked both sides to complete their arguments on Wednesday.

Barrister Zafarullah said he would complete his arguments within one hour after the start of the proceedings.

Attorney-General Malik Mohammad Qayyum told the bench that he wanted the decision on the petitions on merit and he would not raise the question of maintainability because the matter had already been decided in the Syed Zafar Ali Shah case in 2000.

He said he and president’s counsel Syed Sharifuddin Pirzada would conclude their arguments in an hour on Wednesday.