ISLAMABAD, April 24: Former president retired Gen Pervez Musharraf suggested to the Supreme Court on Wednesday to summon people who had aided, abetted or collaborated in his emergency proclamation of Nov 3, 2007.
“Their presence is necessary in the proceedings under the constitutional jurisdiction of the Supreme Court under enforcement of the fundamental rights,” said a reply submitted by Gen Musharraf to one of the petitions filed by Barrister Amjad Malik.
A three-judge bench, headed by Justice Jawwad S. Khawaja, had taken up a set of petitions seeking initiation of a treason case against the former military ruler. “The word ‘treason’ against an individual amounts to a wild and reckless allegation of a ‘traitor’ and proceedings under article 184(3) of the constitution on such charges will amount to adversely affecting the fundamental rights of Gen Musharraf in terms of articles 4, 8, 10 and 10A of the constitution,” the reply said.
The current proceedings, it argued, would eventually become a talk of the town and would mean condemning Gen Musharraf without a fair trial.
“The conscious decision of the caretaker government not to file a complaint under section 3 of the High Treason Punishment Act 1973 is a policy matter and exercise of any discretion by the Supreme Court in this regard will mean entering into the realm reserved for the executive.
“A policy decision in the national interest on security reasons is immune from the apex court’s constitutional jurisdiction,” the reply argued.
During the proceedings, Advocate Ibrahim Satti, representing Gen Musharraf, argued that the July 31, 2009, judgment of the Supreme Court in which findings were recorded against the former president had been vitiated with bias because Chief Justice Iftikhar Muhammad Chaudhry had presided over the bench.
He recalled that the chief justice was a party in a reference filed by Gen Musharraf in the Supreme Judicial Council against him. Similarly, he recalled, Gen Musharraf was also a party in a petition the chief justice had filed in the apex court against the reference. The counsel asked how could the July 31, 2009, verdict be considered impartial when it had been issued by a bench presided over by the chief justice himself. Advocate Satti cited some cases to establish principles laid down by the apex court itself suggesting disqualification of a judge from sitting on a bench to hear a case which also includes a personal bias or prejudice towards a person.
Referring to article 189 of the constitution, he said the binding effect of any judgment of the Supreme Court was limited to a high court if any question of law had been decided.
He cited article 191 of the constitution under which the Supreme Court Rules of 1980 had been framed by the court itself regulating its functions and asked when the apex court itself was framer of the rules which were not subject to approval by the president then how could the court interpret these rules independently. Under these rules, the counsel said, the authority of constituting division or different benches of the apex court had been vested in the chief justice.
Ahmed Raza Kasuri, another counsel for Gen Musharraf, jumped to the rostrum to say that if the court did not consider his client’s case a significant one, it meant that it was not focusing on this important case which the entire world was watching with great interest.
He was replying to an observation made by Justice Jawwad Khawaja that the current case might be important for Gen Musharraf’s counsel, but not for the court because all cases were important for it even if it pertained to two and a half marlas of land.
The case will be taken up on Thursday.