ISLAMABAD – Judges regularisation case took a new turn on Wednesday when the apex court issued notice to former President General (Retd) Pervez Musharraf leaving it as optional for him whether or not to defend himself personally or through a counsel.
“According to principles of law, universally known, no person should be condemned unheard, therefore, under Order 25 of the Rule 9 of the Supreme Court Rules 1980, notice be issued to Pervez Musharraf, however, leaving for him to appear before the court or otherwise”, the apex court order said.
A 14-member bench of the Supreme Court headed by Chief Justice Iftikhar Muhammad Chaudhry is hearing a petition of the Sindh High Court Bar Association (SHCBA) seeking regularisation of two additional judges of the High Court of Sindh. The judges were denied regularisation on the basis of Supreme Court judgment in Tikka Iqbal case, which said that judges who had not taken oath under the PCO, promulgated on November 3, 2007 was a ‘past and closed transaction’. The same judgment had also validated the imposition of emergency and the steps taken thereafter by former president General (Retd) Pervez Musharraf.
During the proceedings of the case on Tuesday, Chief Justice Iftikhar Muhammad Chaudhry expressed probability of concluding the hearing in the case by Friday (July 24). However, on Wednesday, the Chief Justice sought view of the counsel for the petitioners Hamid Khan and Attorney General for Pakistan Sardar Latif Khan Khosa on the question of issuing notice to Pervez Musharraf with a view to provide him an opportunity to defend himself in the case if he wanted so.
Hamid Khan opposed issuing of the notice to Musharraf saying there was no precedence of issuing notices to former dictators in such cases and that former military ruler Yehya Khan, too, was not issued notice in Asma Jilani case. To this, Justice Shahid Siddiqui said that there were people to defend Yehya Khan but in this case the Attorney General is not defending General (Retd) Musharraf.
Khan further contended that Musharraf was not being prosecuted, instead his constitutional actions were being examined and therefore there was no need of issuing notice to him. Justice Jawwad S Khawaja, however, observed that fairness demanded that Musharraf is provided with an opportunity to come and defend himself. The Attorney General, however, said he was leaving the matter to the court.
The Chief Justice remarked that if there were 0.001 per cent chance of revisiting the Tikka Iqbal case, the court would attack the PCO. He said there would be fallouts and repercussions of this case, which would decide the fate and life of the nation. He said, “We would have to strengthen our institutions and there should be no more adventurism.”
The Chief Justice further observed, “The court is examining the PCO promulgated by Gen (Retd) Pervez Musharraf. Therefore, anyone can raise an accusing finger against us for condemning someone who is not before us,” he said.
On another occasion, the Chief Justice said that they were neutral and not against anyone. “We would even do justice to the worst of our enemies”, he observed.
The court order stated: “According to the principles of law, universally known, no one should be condemned unheard, as it has been recognised and stated by this court in almost every case where an adverse decision was likely to take place. Not only in our country, internationally where there is a regular system of administration of justice, this principle is applied. Even when there is no provision under the law, the courts have been issuing the notices under the principle of natural justice”.
“In Asma Jilani case, notice was not issued as the respondent government had not made a categorical statement that it was not defending the action of Gen Yehya Khan. As for as the proceedings of the case are concerned, these are going on for the last two to three days. Media, print and electronic, is widely publicising the observations and proceedings. Anyone interested in the proceedings who is concerned with the promulgation of PCO can appear on his own by making application directly or otherwise”.
“Therefore, under Order 25 of the Rule 9 of the Supreme Court of Pakistan Rules 1980, notice be issued to Gen (R) Pervez Musharraf. However, leaving for him to appear before the court or otherwise. Notice be issued on the address of his residence in Islamabad”.
The court orders imply that Musharraf is given an opportunity to defend his actions, taken on November 3, 2007 and onward, in the court. He can appear in person or through a counsel or can choose not to defend himself, senior lawyers explained.
Former Attorney General for Pakistan Justice (Retd) Malik Qayyum while talking to media persons outside the court building said he was ready to represent Gen (Retd) Musharraf in the court if he (Musharraf) asked him to do so.
He termed the court order as highly appreciable and according to the law and the Constitution.
Attorney General for Pakistan Sardar Latif Khan Khosa, too, hailed the Supreme Court order and said the government was not in a position to defend the illegal acts of former President Musharraf.
Talking to media persons in the court premises, he said that Sharia, Constitution of Pakistan and Supreme Court judgments provided every person a right to defend himself in the court. He said that Pervez Musharraf had no right to impose emergency and he had no constitutional protection to defend himself.
In response to a question, Khosa said that both the Parliament and judiciary were making struggle to strengthen democracy in the country and the former had no need to take any pre-emptive action about the expected judgment of the Supreme Court.
Monitoring Desk adds: The summons were issued to former President Musharraf on the directives of the Supreme Court Wednesday evening. However, the personal staff of the former president refused to receive the summons, reported a private TV channel. The judicial staff served the notice issued to Musharraf at his Chak Shahzad’s residence in outskirts of Islamabad.