News
Tuesday, May 07, 2013
SC cannot order federation to register treason case: Musharraf’s counsel* Counsel for ex-president says court constantly interfering in executive’s affairs
* Court says army has no legal, constitutional justification to take over power
By Hasnaat Malik
ISLAMABAD: Counsel for Gen (r) Pervez Musharraf on Monday said that as per law only the federal government could register a treason case against the former dictator and the court could not order the federation to register a treason case.
Ahmed Raza Kasuri told the three-member bench of the apex court headed by Justice Jawwad S Khawaja that the third proclamation of emergency was an act of collective wisdom of the prime minister, cabinet, chief ministers, governors, chief of joint staff and corps commanders. “They were mentioned by their names; therefore the court could not single out Musharraf and put the entire burden on him.” He added that being the president Musharraf only followed the advice of the prime minister.
The counsel remarked that the court was constantly interfering in the affairs of the executive. Such overstepping was a violation of the trichotomy of powers, he pleaded. The court observed that the constitution was held in abeyance for thirteen days and when this happens the citizens are deprived of their fundamental rights. Justice Khilji Arif Hussain said that when other organs of state failed to fulfil their responsibility the Supreme Court had to come forward out of compulsion. Justice Ejaz Afzal remarked that there is no legal and constitutional justification for the army to overstep its limits and take over power. “The modus operandi on army’s interference in state affairs is enshrined in the constitution which can not be breached,” he observed.
Kasuri stated that the proclamation of emergency highlighted the environment that Pakistan was facing at the time. He said Musharraf thought that a destabilised Pakistan would destabilise the Islamic world. Justice Jawwad asked Kasuri if he was suggesting that that the doctrine of necessity still holds. Both the Musharraf counsels, Kasuri and Qamar Afzal, pleaded that none of the petitioners’ fundamental right has been violated by the emergency and urged the court to exercise restraint and not issue any direction to the federation. Justice Ejaz Afzal said that if a sessions judge acting as ‘justice of peace’ takes cognisance of an offence and orders an SHO to register a case then would it effect the merit of the case. Qamar Afzal argued that everyone could ask for the registration of FIR under Section 22A of PPC, but in this case a complaint has to be registered by the federation only.
The court observed that the interim government’s stance was that it was not concerned about the resolutions passed by the Senate. Qamar Afzal argued that the elected government had ruled the country for five years and had not acted upon the Supreme Court judgement in the SHCBA case, and it did that consciously. Justice Jawwad said that they could not term it a conscious act because the federation had not told the court that the issue was a past and closed transaction. Qamar Afzal said that judicial legitimacy would not be available if the court directs the federation to lodge complaint against Musharraf. Afzal has concluded his argument, while Kasuri would resume arguments today (Tuesday).
Courtesy www.dailytimes.com.pk