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SC wants no decision harmful to system: Musharraf can’t be tried for treason - Naveed Yaseen - 07-31-2009 06:14 AM
* 14-member bench says parliament can initiate proceedings against former president, has power to right past wrongs
By Masood Rehman
ISLAMABAD: A 14-member bench of the Supreme Court, headed by Chief Justice (CJ) Iftikhar Muhammad Chaudhry, observed on Thursday that though the apex court could rule on the constitutionality of the actions of former president Gen ® Pervez Musharraf, it could not initiate treason proceedings against him on its own.
The bench observed that the power to try the former president for treason and other crimes lay with parliament.
The bench was hearing petitions challenging the non-confirmation of two Sindh High Court judges and the appointment of judges who had taken oath under the Provisional Constitutional Order (PCO) of November 2007. The judges observed they would prefer not to give a verdict that could damage the country’s political and judicial system.
Justice MA Shahid Siddiqui observed that it was up to parliament and the nation to try the former president.
No punishment in this case: Resuming his arguments, Sindh High Court Bar Association counsel Hamid Khan said the Supreme Court could declare Musharraf’s actions unconstitutional and try him for treason.
The CJ observed that while the court could not hand out a punishment in this case, it could declare Musharraf’s November 3 actions unconstitutional. At least 41 unconstitutional steps were taken after the imposition of emergency, the CJ said.
Govt stance: During Thursday’s proceedings, which began an hour before the scheduled time, Justice Khalilur Rehman Ramday asked Attorney General (AG) Latif Khosa about what the current government had done with regards to the emergency proclamation and subsequent steps taken by Pervez Musharraf, to which the AG replied, “The government is bound to obey your orders.”
Justice Jawwad S Khawaja said that it had been over a year-and-a-half since the present government came into power, but nothing had been done to annul Musharraf’s “unconstitutional steps”, adding, “We have not restricted parliament [from] performing its duties.”
The court asked the AG to present the government’s stance on the emergency of November 2007 and other ordinances promulgated in its aftermath. The AG told the court the government was working on a constitutional package to remedy the situation.
Talking about increasing the number of SC judges through the finance bill, Justice Ramday observed, “[The] money bill can’t enhance the number of SC judges. It can [contain] financial provision for the prospective number of judges, but the number of SC judges can only be enhanced by an [act of parliament]. [The] difficulty which exists here is curable, not by extraordinary powers... but with the power available to parliament.”
CJ cautious: Arguing his case, Hamid Khan said the Tikka Iqbal case, which validated the imposition of emergency, was void and unconstitutional, since it was adjudicated by Justice Abdul Hameed Dogar’s court, who could not even be called “a de facto chief justice”, because he violated the decision of a seven-member SC bench against the emergency. If this was done, the chief justice observed, “What [would become of the] judgements rendered by PCO judges from November 3, 2007 till now?” adding, “We have to [consider everything] very seriously – this is our [dilemma]... we don’t want to create problems for the public.”
http://www.dailytimes.com.pk/default.asp?page=2009\07\31\story_31-7-2009_pg1_1