Judiciary reminded of its role in validating martial laws

Published April 30, 2013
Former President Pervez Musharraf.—File Photo
Former President Pervez Musharraf.—File Photo

ISLAMABAD: A lawyer representing former military ruler retired Gen Pervez Musharraf cautioned the judiciary on Monday that if he was prosecuted for abrogating the constitution, he would not go down alone.

“The role the judiciary played by validating successive martial laws in the past is also not something to be proud of,” Ibrahim Satti said before a three-judge bench, adding that the treason charges should also involve all those who had never objected or collaborated, abetted and conspired in such cases since 1956 — the year mentioned in the High Treason (Punishment) Act of 1973.

“We all are sailing in the same boat since 1956,” the counsel said, but received a prompt retort from Justice Khawaja: “And this boat full of people should be sunk”.

The court ordered the caretaker government to facilitate all the three counsels representing Musharraf to meet their client after they complained that they had not seen him for four days.

“We will ensure no injustice is done to anybody as everyone is equal before us,” Justice Khawaja said.

Advocate Satti said Gen Musharraf was ready to face treason charges, but the guns should not be pointed at him alone.

Tracing the history of previous martial laws, he said the world had never accepted validation of martial laws either by parliament or by the judiciary.

Therefore, if any action by way of treason charges had to be taken then his client should not be discriminated against. The charge should implicate as principal accused all those who had aided and abetted in such acts in the past, he said.

It is a wrong perception, he said, that the late Gen Ayub Khan had clamped martial law on Oct 7, 1958. Instead, it had been imposed by the then president Iskander Mirza and validated by the Supreme Court on the grounds that the president was sitting in the office and it was in the interest of the state. After the verdict, Gen Ayub became president on Oct 27, 1958.

Gen Ayub himself violated the constitution and handed over power to the late Gen Yahya Khan, but the apex court protected all acts done by Gen Yahya in the Asma Jillani case because there was an interim constitution of 1962 and the speaker of the National Assembly was working as the acting president, he said.

Likewise, the Supreme Court validated the 1977 martial law of Gen Ziaul Haq in the Nusrat Bhutto case by invoking the ‘doctrine of necessity’ because Chaudhry Fazal Ellahi was functioning as president.

In the same fashion, the Supreme Court legalised the Oct 12, 1999, martial law by Gen Musharraf because Rafiq Tarar was in the office of president and all the courts were functioning smoothly, the lawyer said.

He said the Nov 3, 2007, emergency was also validated by the apex court in the Iqbal Tikka Khan case on Nov 24, 2007, by relying heavily on the Zafar Ali Shah case, although the verdict was overturned by a larger bench in the July 31, 2009, judgment after holding the proclamation of emergency as unconstitutional.

The government had notified the interior secretary in 1994 to lodge a complaint for lodging treason charges against an individual, but before registering a complaint the authorised person had to initiate a thorough inquiry, he said.

The counsel said that the legislators had become wiser and under the 18th amendment, had not only revoked the validation of the 1999 martial law by the Supreme Court in the Zafar Ali Shah case, but had also blocked holding in abeyance of the constitution to discourage any attempt by the judiciary to validate such acts in future.

“Throughout our constitutional history, parliament as well as the people of Pakistan have accepted constitutional changes which become convention later and anything approved by parliament becomes law of the land.”

He said the imposition of emergency on Nov 3 could be termed something different from the previous martial laws or something which was not for the public good.

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