1999-like situation necessitated emergency, SC told

By Nasir Iqbal

ISLAMABAD, Nov 14: Chief of Army Staff Gen Pervez Musharraf, in his reply to petitions filed in the Supreme Court against his proclamation of emergency, submitted on Wednesday that the situation which forced him to impose emergency was ‘analogous’ to the October 1999 situation.

In a 10-page reply to the petitions filed by Tikka Iqbal Mohammad Khan and Watan Party chairman Barrister Zafarullah Khan, Gen Musharraf sought validation of the emergency and the Provisional Constitution Order and pleaded to empower the army chief to amend the Constitution as had been done by the court in the 2000 Zafar Ali Shah case.

A 10-member bench comprising Chief Justice Abdul Hameed Dogar, Justice Mohammad Nawaz Abbasi, Justice Faqir Mohammad Khokhar, Justice M. Javed Buttar, Justice Ijazul Hassan, Justice Mohammad Qaim Jan Khan, Justice Mosa K. Leghari, Justice Ch Ijaz Yousaf, Justice Mohammad Akhtar Shabbir and Justice Zia Pervez will on Thursday start hearing the petitions challenging the emergency rule and the PCO and curbs imposed on judges of superior courts, the electronic media and the freedom of citizens.

Drafted by Advocate Raja Mohammad Ibrahim Satti on behalf of respondent-1, Gen Pervez Musharraf in his capacity as the army chief, the reply prayed the court to dismiss the petitions since they were not maintainable under Article 184(3) of the Constitution.

It said fundamental rights under Articles 9 (security of person), 10 (safeguards as to arrest and detention), 15 (freedom of movement), 16 (freedom of movement), 17 (freedom of association), 19 (freedom of speech) and 25 (equality of citizens) had been suspended under the PCO 2007. Therefore, it said, these were not enforceable and their enforceability could not be urged under Article 184(3) of the Constitution.

Similarly, it said Article 4 (rights of individuals to be dealt with in accordance with the law) of the Constitution, as asserted by the petitioners, did not fall within fundamental rights guaranteed under the Constitution.

About measures taken under the emergency, the reply said these had been taken in pursuance of the proclamation of emergency and the PCO which could not be questioned and were covered in the Zafar Ali Shah case.

Moreover, it said, the 12-member bench which had validated the emergency and the PCO of 1999 in the Zafar Ali Shah case included Justice Iftikhar Mohammad Chaudhry and Justice Rana Bhagwandas, who had been removed under the PCO.

Under Article 3 of the Oath of Office (Judges) Order 2007, all judges of the Supreme Court, the Federal Shariat Court and the high courts ceased to hold office and they were no more judges till they took a fresh oath, it said.

Besides, it claimed, all measures and instruments, including emergency, PCO and oath of judges, were legal and lawful and had been issued with lawful authority.


Dawn 15/Nov/07