ISLAMABAD: The Supreme Court rejected on Monday a petition seeking review of the judgment in the 2000 Zafar Ali Shah case validating the Oct 12, 1999, military coup by Gen Pervez Musharraf.

A three-judge bench headed by Justice Saqib Nisar held that the review petition moved by PML-N Senator Zafar Ali Shah was time barred by 3,334 days because it had been filed in 2009 after the landmark judgment of July 31, 2009, which declared the Nov 3, 2007, emergency by Gen Musharraf unconstitutional.

Talking to Dawn, Zafar Ali Shah admitted that legally the review petition should have been filed within 30 days after the judgment, but the July 31, 2009, verdict had changed the entire political scenario.

He said he had filed the review petition because the matter was identical and concerned validating the military coup.

Headed by former chief justice Iftikhar Muhammad Chaudhry, a 14-judge bench had on July 31, 2009, denounced successive military takeovers and their endorsement by the superior judiciary by declaring Gen Musharraf’s second coup through the Emergency Order of Nov 3, 2007, including the appointment of over 100 superior court judges, as illegal and unconstitutional.

On May 12, 2000, a 12-judge SC bench headed by then chief justice Irshad Hasan Khan had in its verdict held that on Oct 12, 1999, a situation had arisen for which the constitution provided no solution and the intervention of the armed forces through an extra-constitutional measure had become inevitable and, therefore, validated on the basis of the doctrine of state necessity.

The doctrine of necessity, the judgment had explained, was recognised not only in Islam and other religions but also accepted by the eminent international jurists, including Hugo Grotius, Chitty and De Smith and some superior courts from foreign jurisdiction to fill a political vacuum and bridge the gap.

But on Monday, the three-judge bench held that in practical terms the July 31, 2009, judgment had revisited all the previous verdicts validating military rules and now it held the field.

During the proceedings, Zafar Ali Shah argued that the court had accepted after 40 years a case against the SC judgment upholding a Lahore High Court verdict awarding death sentence to former prime minister Zulfikar Ali Bhutto in March 1979 during the military regime of then army chief Gen Ziaul Haq, who had overthrown the PPP government in July 1977.

But the court said the case had been sent to the Supreme Court under its advisory jurisdiction through a presidential reference by then president Asif Ali Zardari in April 2011 to seek an opinion on revisiting the death sentence awarded to Zulfikar Ali Bhutto.

Published in Dawn, January 27th, 2015

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