ISLAMABAD, Oct 22: Barrister Aitzaz Ahsan, the counsel for presidential candidate Justice (retd) Wajihuddin Ahmed, on Monday urged the Supreme Court to seize the historic opportunity and bury the doctrine of necessity to block the way of imposition of martial law forever.
“One army chief is on the exit door while there is no possibility of another stepping in and imposing martial law,” Barrister Ahsan argued before the 11-judge larger bench hearing petitions challenging acceptance of President Pervez Musharraf’s nomination for the presidential polls by the Election Commission.
He said the army would not move in as Pakistan was not Russia where the army had besieged parliament in 1993 using tanks and artillery to support the then president Boris Yeltsin.
“Your decision will be respected in letter and in spirit by the entire world, the attention of which is on Pakistan’s judiciary,” he emphasised.
Sharifuddin Pirzada, the senior counsel representing President Musharraf, told reporters after the hearing that the court was likely to give its verdict next week.
Barrister Ahsan urged the court to exercise its strength while deciding the petitions purely on constitutional grounds as it did by restoring Chief Justice Iftikhar Mohammad Chaudhry on his petition after he had been suspended by President Musharraf on March 9.
“We keep on burying the concept of doctrine of necessity but it keeps haunting us,” Justice Khalilur Rehman Ramday observed when Barrister Ahsan recalled the observation of Justice Javed Iqbal, who while deciding the dual office petitions had said that the court had buried the doctrine of necessity forever.
Justice Iqbal quipped that the court could bury the body of the doctrine but it had no control over its soul.
“The people yearn and aspire for democracy, which lies beneath our skin,” Barrister Ahsan said, adding that this was the moment to scratch the skin. “Do not inhibit yourself from the past history and rescue the nation by giving the decision,” he stressed.“The nation is in a state of civil war and anarchy and this is the time to put the nation back on rail again,” he said, adding that once again the lordships carried the cross.
Aspirations of the people as well as the Constitution both focussed on a single point -- complete revival of democracy in the country, he said.
Quoting from late prime minister Zulfikar Ali Bhutto’s book If I am assassinated, he said India had survived as a union despite several religions, nationalities, dialects and languages because of the din and chaos of democracy.
It was also because their politicians were more tolerant than ours, Justice Chaudhry Ijaz quipped.
But Mr Ahsan recalled the period of late prime minister Indira Gandhi and said despite corruption no agency had ever intervened during the Indian election process. “Look at the ball of steel tied to its ankles by way of an enormous 1.5 billion population but the country is developing and no general has ever interfered,” he said.
But their politicians had also never invited the generals, Justice Iqbal said.
The generals should also leave if they came on invitation, Mr Ahsan said. When the counsel was again asked by the court about the ideal way out when President Musharraf had announced that he would hang up his military uniform after his election for another five-year term, Barrister Ahsan said an excellent way out would be that after Nov 16, the president should play golf with his colleagues and allow Senate Chairman Mohammadmian Soomro to take over as president and hold elections, as was done by Ghulam Ishaq Khan. The theory of giving safe passage to President Musharraf was based on a wrong concept that the country was passing through a transition phase towards democracy, he said.
“For the past 60 years we have been transitioning towards democracy,” he said, adding that the transition phase was when the Supreme Court had given three years to Gen Musharraf while deciding Zafar Ali Shah’s petition by validating his takeover.
Referring to Articles 243 (command of armed forces), 244 (oath of armed forces) and 245 (functions of the armed forces) of the Constitution, Mr Ahsan said the principle which those provisions drew was that the oath of the personnel of the armed forces required them to desist from political activities. Their oath also required that they would defend the country from external aggression under the direction of the federal government.
Moreover, the armed forces had to act in aid of civil power when called upon to do so in accordance with the law. They could not come unsolicited or come to subvert or dominate the civil power.He stressed that Pakistan was the only country which provided oath in the Constitution for members of its armed forces. “Having handed over guns to its sons, the state then created impediments in their way to protect it,” he said, adding that the guns were meant for the enemy or to be used only in aid of civil power.