ISLAMABAD: The Supreme Court mentioned on Thursday examples of frequent constitutional deviations in the country and said that its July 31, 2009 judgment underpinned a strong realisation to turn a new leaf towards constitutionalism and rule of law instead of remaining hostile to past mistakes.

The verdict had declared former president retired Gen Pervez Musharraf’s emergency order of Nov 3, 2007 as illegal and unconstitutional.

Explaining the reasons for rejecting Mr Musharraf’s review petition, a 42-page detailed judgment authored by Chief Justice Tassaduq Jillani said the July 31, 2009 verdict did not stand vitiated by any bias or error in law or a fact to warrant revisiting.

A 12-page additional note by Justice Jawwad S. Khawaja is also part of the verdict.

In its short order issued on Jan 30, a 14-judge apex court bench had dismissed Mr Musharraf’s review petition for presenting irrelevant precedence and that it was time barred by 1,576 days.

In his petition, the former military ruler had claimed that the emergency had been imposed for public good and to get rid of former chief justice Iftikhar Muhammad Chaudhry and some judges since their removal had then become impossible under normal legal procedures.

The detailed verdict held that neither the question of Musharraf’s trial nor retrospective or prospective effect of an addition in Article 6 of the Constitution dealing with high treason were the moot points in the July 31, 2009 judgment. The addition of clause 2A to Article 6 also prohibits the Supreme Court and high courts from validating any constitutional deviation.

Referring to arguments of Musharraf’s counsel that although the July 31 verdict did not give any direction for Musharraf’s trial, a three-judge bench headed by Justice Jawwad S. Khawaja in the Maulvi Iqbal Haider case issued such directives on July 3 last year which according to them was not warranted in law, the judgment recalled that the bench had disposed of the case on a statement by then attorney general Muneer A. Malik without giving a finding on merit so that the treason trial against Musharraf in the Special Court was not prejudiced.

Besides, it said, no review had ever been filed to challenge the three-judge bench order and explained that the July 31, 2009 judgment dealt with the aspect of constitutional violation by Musharraf whereas the July 3, 2013 order took care of criminal aspect of the matter.

The verdict also referred to an admission by Musharraf’s counsel that then prime minister Shaukat Aziz had written a letter to then president Musharraf and not to the army chief and never advised him to impose emergency. Mr Musharraf acted in his own discretion.

“This frank admission by the counsel further weakened his case for review,” the verdict said and wondered how could Mr Musharraf in his capacity as the army chief or even president act on his own discretion. He had no power under the law to impose emergency and make judges of the Supreme Court and high courts dysfunctional.

In his additional note, Justice Khawaja dilated upon the allegation of bias on part of former chief justice Iftikhar Chaudhry towards Musharraf as alleged by the petitioner’s counsel and said it appeared as if Musharraf perhaps on account of his long service in the armed forces might not have encountered dissent, disagreement or resistance to orders issued in a chain of command, necessary for a cohesive fighting force.

“He may, therefore, in his own mind, have considered the resistance to his unconstitutional proclamation of emergency by the judiciary, including the former chief justice, as a manifestation of disobedience or insubordination and thus ill will or animus against him,” the judge observed.

The imperious tenor of the proclamation brooks no dissent and says it all: “I, General Pervez Musharraf, COAS, proclaim emergency throughout Pakistan … I hereby order and proclaim ….”. With such thinking, it may not have crossed his mind that he may actually have missed the reality that the court and its judges were only doing their job in accordance with the law and the Constitution.

His logic, perhaps not so strange to him, can be best explained by referring to the wisdom of Hafez who recognised the elements of ‘zarf’ and ‘nafs’, and while doing so, understood the extremes of subjective opinion which may be contrary to accepted norms and which may lead a person bedevilled by subjective standards into an irrational persecution complex.

The courts, Justice Khawaja explained, were required to proceed on the basis of objective/rational standards and not on unfounded subjective opinions or assumed perceptions of bias which might border on paranoia.

He recalled that all judges of the superior courts suffered because of the Nov 3, 2007 emergency and the argument that the former chief justice as a judge had acted in his own cause was clearly fallacious. If Justice Chaudhry acted in his own cause in the July 31, 2009 case, so did 12 other judges on the bench.