ISLAMABAD: Continuing with his earlier demand for constituting a larger bench, a lawyer defending former president retired Gen Pervez Musharraf against treason charges tried to convince the Supreme Court on Tuesday that its two judgments against the 2007 emergency were ‘biased’.
A three-judge bench headed by Justice Jawwad S. Khawaja had taken up a set of petitions seeking initiation of a treason case against the former military ruler under article 6 of the constitution.
Advocate Ibrahim Satti, the counsel for Gen Musharraf, recalled that Chief Justice Iftikhar Muhammad Chaudhry had presided over two benches which held the emergency illegal and unconstitutional on Nov 3, 2007 and later on July 31, 2009.
But prior to these cases, he argued, the chief justice had recused himself from a bench hearing a petition of retired Justice Wajihuddin Ahmed against Gen Musharraf’s candidature for the presidential election while wearing military uniform.
Against this background, Advocate Satti said, it would be appropriate that a full court headed by a senior puisne judge be constituted to hear the case against Gen Musharraf, as was done in the 1998 Malik Asad Ali case.
He recalled that the chief justice also raised the question of bias against three judges of the Supreme Judicial Council when a reference had been filed against him.
Advocate Satti argued that the apex court had decided to place the name of Gen Musharraf on the exit control list without hearing his side. This was against the norms of natural justice.
He said Gen Musharraf’s 95-year-old ailing mother was in the UAE and he might have to leave any time to visit her. “My client is a commando and ready to face cases in Pakistan, but he may have to go to meet his mother who keeps poor health,” Advocate Satti said.
Ahmed Raza Kasuri, another counsel for the former president, told reporters in a choked voice that Gen Musharraf used to feed his ailing mother with his own hands and, therefore, he should be allowed to visit her.
During the proceedings, Justice Khilji Arif Hussain, a member of the bench, assured Advocate Satti that the court would issue an appropriate order whenever Gen Musharraf sought permission to go abroad.
The case will be taken up on Wednesday.
Reverting to the arguments about the larger bench, Advocate Satti said that during the current proceedings the July 31, 2009, verdict might be commented upon or criticised legally and suggested that it be revisited or the observations against Gen Musharraf deleted.
Keeping in view the jurisprudential principles for setting aside the alleged ex-parte proceedings in terms of Gen Musharraf, the counsel said it would be appropriate that the case be heard by a full court bench or equal to or larger number of judges than those who had decided the July 31, 2009, case.
Referring to the Jan 23, 2012 unanimous resolution by the Senate suggesting to the government to initiate treason trial against Gen Musharraf under article 6 of the constitution, Advocate Satti said that such resolutions neither became law after their passage nor did they have any binding force.
“If there is a resolution in the Senate against Mr Musharraf, there are also resolutions adopted by the National Assembly and provincial assemblies validating the Nov 3, 2007 emergency though the emergency was never formally indemnified by parliament in the constitution,” he argued.
He said the Oct 12, 1999 bloodless coup had been validated by parliament through the 17th amendment by inserting article 270AA in the constitution, but after the 18th amendment the effect and consequences of the substitution of article 270AA had to be examined to determine whether the net of the offence of high treason needed to be widened against other collaborators.