ISLAMABAD: The Supreme Court Tuesday observed that all those, including the judges, who validated the martial law imposed by former president and military dictator Pervez Musharraf on October 12, 1999 should be held accountable.
This observation from the country’s top court came during the hearing of an appeal by the former military dictator and the appeals challenging the verdict of the Lahore High Court (LHC) that declared as unconstitutional the constitution of Special Court to try Musharraf for imposing the state of emergency in 2007.
A four-member larger bench — headed by the Chief Justice of Pakistan justice Qazi Faez Isa — heard the appeal.
Justice Syed Mansoor Ali Shah, Justice Amin-ud-Din Khan and Justice Athar Minallah were the bench members.
Justice Athar Minallah asked Musharraf’s counsel Salman Safdar to also assist the court on the next date of hearing as to why his client should not be proceeded against for abrogating the Constitution on 12th of October 1999.
The court also asked the counsel to seek instructions from the legal heirs whether they wanted to pursue their appeal after notices were dispatched to them.
Justice Athar further remarked that the judges who validated the imposition of martial law by Musharraf in 1999 should also be tried.
“Musharraf abrogated the Constitution, sent Parliament home but the judiciary of that time validated his act”, the judge added.
The chief justice observed that “we should learn from our history” adding, “even if someone was not punished for abrogating the Constitution, at least one should admit that what was done in the past was wrong.”
The chief justice further observed that the primary aspect was recognition of the wrongdoing and everyone should at least accept that a wrong had been done in the past.
Justice Isa recalled that there was dictatorship in Spain and South Africa but everyone there accepted it.
“Naturally, there could be consequences but one should at least recognise the wrongdoing”, he said, adding that the media was also responsible for supporting the military dictators and asked the Pakistan Bar Council Vice Chairman Haroon-ur-Rashid as to how many journalists supported the validity of martial law and how many opposed it.
The chief justice asked if the portraits of judges on display at the apex court should not be removed for swearing allegiance to an individual and justifying the military takeovers.
Justice Athar remarked that one should speak the truth and the truth was that the judges who validated the martial law should also be tried and given a fair trial.
The judge further remarked that it was a lesson to learn that when a usurper was powerful, nobody dared to speak against him but when he became weaker, the case of Asma Jilani also came across.
The judge further said in the Sindh High Court Bar case, the Supreme Court had declared the emergency imposed on 3rd of November 2007 as illegal.
“The act committed on 3rd of November 2007 was an attack on judges, hence it should be proceeded against”, Justice Minallah observed.
Justice Mansoor observed that Article 6 of the Constitution will be applied retrospectively for abrogating the Constitution adding that it could be applied till abrogation of 1956 Constitution.
In pursuance of the court’s last order, Hamid Khan, counsel for the petitioner Taufeeq Asif, submitted before the court his written formulations.
Similarly, the Pakistan Bar Council adopted the arguments of Hamid Khan.
Vice Chairman Pakistan Bar Council Haroon-ur-Rashid and Chairman Executive Committee of Pakistan Bar Council Hassan Raza Pasha in a court query submitted that the Special Court awarded death sentence to Musharraf in the high-treason case, while the Lahore High Court on January 13, 2020 declared the formation of Special Court as unconstitutional.
The chief justice asked whether the Lahore High Court was not aware that the Special Court was no more after pronouncing its judgment in the high-treason case adding that the high court had commenced a non-academic exercise on an infructuous matter.
“The high court has not set aside the Special Court verdict which is now still in the field”, the CJP remarked.
He questioned the procedure of filing of petition with the high court and its fixation adding that a single judge had referred the matter to the chief justice for constitution of a full bench but at the same time he fixed the matter himself the next day.
The chief justice observed that the high court was taking up the matter of a court that was no more after finishing its work (Special Court).
Salman Safdar told the court that after the Lahore High Court pronounced its judgment, his client asked him to file an appeal against his conviction.
“It means his client did not accept the verdict of high court. If he had accepted it, he would not have filed an appeal against his conviction”, the chief justice told the counsel.
“Supreme Court is the right of an appeal against the verdict of special court”, Salman Safdar replied.
Rashid A Rizvi, counsel for the Sindh High Court Bar Association, on video link from the Karachi Registry of the apex court, adopted the arguments of Hamid Khan. However, he submitted that the judges validating the acts of Musharraf should be proceeded against for wrong interpretation of the Constitution.
Justice Athar asked as to what would be done to those judges who validated the acts of dictators.
Appearing in person through a video link, Hafiz Abdur Rehman another petitioner argued before the court and adopted the arguments of Rashid A Rizvi.
Justice Athar observed that the government that decided to try Musharraf was reluctant; however, when the court issued its order, a Special Court was constituted that tried Musharraf.
Meanwhile, Justice Mansoor Ali Shah questioned what would be the effect on the pension and other benefits of the former president and military dictator Pervez Musharraf if the apex court upheld his conviction in the high-treason case.
Justice Mansoor observed that it was yet to be examined as to what would be the effect on the pensionary benefits of the convicted person under the army laws if the court upheld the decision.
“It is not possible that a person’s conviction is upheld but he can take his pensionary benefits”, he remarked.
The court concluded the arguments of the counsel for the petitioners, challenging the Lahore High Court verdict.
The court, however, adjourned until January 12, 2024 hearing on the appeal of the former military dictator against the Special Court verdict, awarding him death sentence in the high-treason case.
The court asked Salman Safdar advocate to assist it in determining whether his client’s appeal against conviction will have any weight after his death and whether or not his pensionary benefits, being received by the legal heirs, will be affected.
After the court concluded the proceedings on appeals filed against the Lahore High Court verdict, Salman Safdar told the court that he would focus on his appeal, challenging the Special Court verdict adding that his client was convicted in absentia.
The chief justice told the counsel that he would be heard on the next date of hearing.
The counsel further submitted that he had tried to contact the legal heirs of Pervez Musharraf but could not succeed.
He requested the court to give time to the family of Musharraf as they had waited for four years for fixing of their instant appeal and sought adjournment of the proceedings until after the winter vacations.
The court adjourned the hearing till January 10.
Meanwhile, the Supreme Court Tuesday barred the use of the word “higher judiciary” for the Supreme Court.
Heading a three-member bench hearing a bail matter, Chief Justice of Pakistan Justice Qazi Faez Isa announced that since the word ‘higher judiciary’ was not mentioned for the Supreme Court in the Constitution, as per the constitution, the Supreme Court should be called as the Supreme Court.
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