ISLAMABAD -  The Supreme Court on Monday directed the Federal government to enable the meeting of former President Pervez Musharraf with his counsels in respect of the case of high treason.
Ibrahim Satti, counsel for Musharraf, complained that he and other counsel Ahmed Raza Kasuri and Qamar Afzal, were not allowed to meet their client for the last four days. A three-member bench headed by Justice Jawwad S Khawaja and comprised Justice Khilji Arif Hussain and Justice Ejaz Afzal was hearing the case of subversion and abrogation of Constitution by former Chief of Army Staff.
Satti contended that action should be taken against all the conspirators, abettors and persons who have subverted the Constitution and not just Pervez Musharraf for promulgating Emergency on 3rd November, 2007 in the country.
The case should also be registered against the then Prime Minister Shaukat Aziz, who had taken oath under 91(5) of Constitution, for writing secret letter.
The learned counsel argued why the courts did not refuse to validate the Constitution, stating in the past the Presidents of Pakistan had accepted the abrogation and subversion and continued to work with the dictators.
Justice Khilji stated that if the Constitution deviation had been done in the past then should it go on the future as well.
He stated that Article 6(2A) was inserted in the Constitution under 18th Amendment on the basis of Sindh High Court Bar Association judgement.
Satti contended that President and Prime Minister take the oath to protect the Constitution, while the Armed Forces officers take oath in accordance with the Article 244 of the Constitution. He said his client had taken two oaths, first of the Chief of Army Staff and the second one was of the President of Pakistan.
“The duty of President is above his oath because there could be instances when he (President) had to kept aside his oath and the Constitution in the interest of the State, as his prime duty was to save the State,” the learned counsel maintained.
Giving political and legal history of the country, he argued that the doctrine of necessity was still alive.
He said the Constitutional President, Sikandar Mirza, on 07-10-58 imposed the first Martial Law and not the military dictator Muhammad Ayub Khan. The Supreme Court had validated that unconstitutional step.
Similarly, when Yahya Khan was appointed Chief Martial Law administrator the Speaker of National Assembly, who became acting President of Pakistan did not object, adding,that the Supreme Court did not say anything about that Martial Law too.
At the time of Ziaul Haq’s Martial Law Chaudhry Fazal Elahi continued to function as President.
Similarly, when General (Retd) Pervez Musharraf launched coup, Rafiq Tarar continued as the President of Pakistan and none of the judges resigned and the State organisations continued to perform their functions as usual ,therefore, the Supreme Court validated the Martial Law.
He said that if they take the example of Bolivia when emergency was promulgated there everything became stand still and colleges and universities were closed.
He said that since 1956 till the Tikka Iqbal case the Head of the State continued to perform its function even when the Martial Law was imposed in the country.
He said that the high treason was also the violation of the oath, but no action was ever taken against any President for violating his oath.
He ,therefore, prayed that action should be taken not only against his client, but also the conspirators, abettors or the persons who put the Constitution in abeyance on 3rd November 2007.
He said that if the action would be taken only his client then it would be violation of Constitution as the Article 6(1) says; “Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.”
While 6(2) says, “Any person aiding or abetting (or collaborating) the acts mentioned in clause (1) shall likewise be guilty of high treason.
The case was adjourned till Tuesday (today).