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Musharraf wants all judges except CJ to hear case

April 14, 2013

ISLAMABAD, April 13: Former military ruler Pervez Musharraf, who is facing the threat of a trial for treason, requested the Supreme Court on Saturday to constitute a full court bench comprising all its judges except Chief Justice Iftikhar Muhammad Chaudhry, for hearing his case.

The court office, however, returned the miscellaneous application in the afternoon, saying it was not clear for which purpose it had been filed.

Advocate Ahmed Raza Kasuri, counsel for retired Gen Pervez Musharraf, said he would raise the issue before the court on Monday.

Talking to Dawn, he said: “This is nothing but an obstruction in the process of justice.”

A bench comprising Justice Jawwad S. Khawaja and Justice Khilji Arif Hussain will resume hearing of five petitions seeking a court order for the prosecution of Gen Musharraf for treason over the promulgation of emergency and issuance of a provisional constitution order (PCO) by him on Nov 3, 2007.

Moved under Order 33, Rule 6, of the Supreme Court Rules, 1980, the application highlighted that under Section 3 of the High Treason (Punishment) Act, 1973, the federal government had the exclusive domain to initiate proceedings against any person who abrogated, subverted, suspended or held in abeyance the constitution by use of force.

Any person aiding, abetting or collaborating in abrogating the constitution will also be held guilty of high treason. Only an authorised officer of the federal government is competent to lodge a report against a person accused of subverting the constitution.

The law had virtually closed all doors for anyone else to initiate such proceedings, the application said.

It said the Supreme Court was not competent under the dictates of the constitution to issue any directive to the federal government to initiate proceedings against Gen Musharraf under the High Treason Act.

It would be blatant violation of trichotomy of powers which was one of the components of the basic structure theory of the constitution as held by the courts in judgments, it said. The application said the executive, legislature and judiciary were the creation of the constitution and the parameters of their power had been regulated by the constitution.

As long as all the three organs of the state exercised their power in accordance with the constitution, it ensured harmonious working of the state, but as soon as any one organ overstepped its constitutional parameters of power and entered into the domain of another organ’s constitutional power, it resulted in a constitutional deadlock, it said.

Thus any directive by the court to initiate proceedings against Gen Musharraf would be a violation of the principle of trichotomy, it said.

The application requested the court to give an authoritative determination by the full court on the issues raised.

The court office said a joint application had been filed against all the five petitions. It said a separate application should have been filed against each petition.

It was not mentioned in the application for which purpose it has been filed and the prayer in it did not tally with what had been agitated in the application by asking for forming a full court minus the chief justice, it said.