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May 7, 2013

No justification for Army to transgress limits: SC

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May 7, 2013

Justice Aijaz Afzal says Constitution has defined armed forces’ role; just as judges cannot interfere in state affairs, the forces also can’t do so; Justice Khilji says Constitution is not legacy of anyone; Kasuri says Army is a power in developing countries and it can’t be stopped through Article 6
ISLAMABAD: The Supreme Court Monday remarked there was no legal and constitutional justification for the Army in overstepping its limits to take over the power.A three-member bench of the apex court, headed by Justice Jawad S Khawaja and comprising Justice Khilji Arif Hussain and Justice Ijaz Afzal Khan, was hearing five identical petitions seeking high treason trial of former president and army chief Pervez Musharraf.

Justice Ejaz Afzal remarked: “The modus operandi on Army’s role in state affairs is enshrined in the Constitution which cannot be breached.” Qamar Afzal, counsel for former president Pervez Musharraf, argued that “Article 25 of the Constitution provides for ensuring equal treatment. Initiation of proceedings against an individual included in this case will run contrary to Section 25 of the Constitution. Keeping in view Article 25 in perspective of maintainability of petitions is essential. The apex court does not take review of criminal case directly.
Justice Khilji Arif Hussain remarked: “The Constitution is not legacy of any one and the court gives decision as per law and the Constitution.Justice Jawwad S Khawaja observed: “Three-member bench of the SC has to see if Article 6 of the Constitution applies there or otherwise.
Qamar Afzal contended that elected government of the people had completed its five years tenure and no step towards initiation of proceedings against Musharraf was taken. Therefore, this matter stands no more now. Registering the case under high treason act is domain of the federal government only.
Advocate Ahmad Raza Kasuri argued that the case has assumed paramount significance at national

and international level.Justice Jawwad S Khawaja remarked the apex court would keep in view all the norms of justice in the case.
Ahmad Raza Kasuri further argued that November 3 2007 steps had not come from one man but they were product of collective wisdom. If these steps are seen in perspective of the situation and circumstances prevailing at that time then there are causes behind them.
He further said all the three services chiefs, corpse commanders, prime minister and members of cabinet were also included in the decision for taking these steps and the responsibility cannot be fixed only on Musharraf.
Justice Ejaz Afzal remarked: “How the Armed Forces can declare November 3 steps just. The Constitution has set the role of the Armed Forces. He further remarked the way the judges cannot interfere in state affairs the Armed Forces also cannot interfere therein.
Ahmad Raza Kasuri said if the court issues directives to the federal government for initiation of proceedings then it would be interference in the powers delegated to the institutions and the court this way will go beyond its ambit.
“You have prescribed powers of all the institutions. Legislative, executive and judiciary have to work within their parameters and if any institution oversteps its powers then the situation will worsen. No order was given for taking any action against Pervez Musharraf in the court’s decision which was issued on July, 31.
The ruling reveals that the court was also clear that only Federation was entitled to initiate proceedings with reference to the matter related to conviction in abrogation of the Constitution case. The state has to initiate proceedings taking in view the situation and circumstances. The Federation did not see the situation proper, therefore, it did not take action. If the proceeding is initiated then the country may fall to instability.
Kasuri questioned that if the military interference will come to halt due to court’s decision. He quoted Zulfikar Ali Bhutto saying in 1974 that “we have buried dictatorship and Bonapartism”, adding that the Army came after three years. The Army is a force in developing countries and it cannot be prevented under Article 6 of the Constitution. Whenever a situation will be created, the Army will come again, Kasuri added.
Justice Jawwad S Khawaja remarked that upholding law and Constitution and ensuring rule of democracy is intent of the Constitution. “We will protect it,” he further remarked. –- Online
Shoaib A Raja adds: Justice Khawaja observed that the petitioners in the case had argued that Musharraf’s decision had violated the Constitution which in turn led to the suspension of fundamental rights. He asked whether this was right on Musharraf’s part, to which Kasuri replied that the Constitution had only been suspended for 12 days and that the judiciary was known for approving such decisions.
Justice Khawaja observed that even if the Constitution had been suspended for 12 seconds, it would still be tantamount to a violation. Earlier, Qamar Afzal, finalised his argument, saying the court has no authority to direct the Federation to register treason case in the present matter.
Justice Ijaz Afzal Khan observed that the court could issue directives to Federation if a government employee failed to discharge given duties, saying that it did not affect merit of the case.Later, asking Kasuri to resume argument in the matter on next hearing the court adjourned the case till May 7 (today).