ISLAMABAD, July 29 The Supreme Court went ahead with its hearing on the judges' case on Wednesday as former president Pervez Musharraf ignored its notice to defend his decision to impose emergency on Nov 3, 2007, in person or through a lawyer.

“Who is appearing on behalf of Gen (retd) Pervez Musharraf?” asked Chief Justice Iftikhar Mohammad Chaudhry at the outset of the proceedings. No one rose to answer — not even Advocate Malik Mohammad Qayyum who had defended the general's Nov 3 actions as his first law officer in the same courtroom in the Tikka Iqbal Mohammad case. He remained indifferent, though physically present, in the court.

At the last hearing, a 14-judge special bench had issued a notice asking Gen (retd) Musharraf to defend his proclamation of emergency and replacing the Constitution with a provisional constitution order on Nov 3, 2007, instead of letting the case go against him by default.

However, the bench had made it clear that it was up to the retired general to defend himself, either by appearing in person or through a lawyer.

Advocate Mohammad Ali Saif, an unofficial spokesperson for Gen Musharraf, had told Dawn that the former president, who was in the UK, could not be represented because he had not received the court notice.

On Wednesday, the chief justice asked Interior Secretary Syed Kamal Shah to submit a report concerning acts of terrorism between Nov 3, 2007, when emergency was clamped, and Dec 15, 2007, when it was lifted.

The directive came when Advocate Hamid Khan, representing the Sindh High Court Bar Association on its petition against non-confirmation of two Sindh High Court judges — Justice Zafar Ahmed Khan Sherwani and Justice Abdul Rasheed Kalwar — centred his attack against the Tikka Iqbal Mohammad case in which the Supreme Court had cited rise in terrorism and “judicial activism through suo motu actions” as valid reasons for imposing the emergency.

The chief justice said the Nov 3 emergency was unique in history, asking the counsel to cite any parallel where the sole target of emergency or a martial law was the judiciary.

Hamid Khan replied in the negative and argued that the Tikka Iqbal case was entirely based on general observations and comments without explaining any thing.

“The entire mindset in constituting a 13-judge bench to sit in review on the earlier decision by a seven-member bench in the Tikka Iqbal case was to get endorsement by a larger bench and the judgment on the review petition was just repetition and reiteration of what already had been said in the earlier order,” Hamid Khan said.

“The logic behind repetition and reiteration was because the earlier decision by the seven-judge bench was announced by judges who had taken oath under the PCO, but then the 13-member bench was formed only because all the judges had then taken a fresh oath under the Constitution,” Justice Khalil-ur-Rehman Ramday observed. He said the judges then had cleansed themselves after taking a dip in “Aab-i-Zam Zam”.

Hamid Khan said “Targeting all instruments, eight in total, issued during the emergency period like the proclamation of emergency and the PCO, establishment of the Islamabad High Court, granting powers to the apex court to withdraw or transfer any case from any high court and delegation of powers back to the president by the army chief who happens to be a grade-22 officer and always reports to the defence secretary in normal course were actions taken in mala fide by Gen Musharraf on personal motive to save his skin and to perpetuate his unconstitutional rule.

“All such actions have no parallel and the Nov 3 coup was first of its kind in the world as well as the chequered history of Pakistan by a general against the judiciary.”

The chief justice regretted the adoption of a resolution by parliament to endorse the emergency and said that extra-constitutional actions should not have been endorsed by parliament.

“Is it so easy to amend the basic structure of the Constitution overnight, and if it is so then what is the purpose of the chosen representatives and deliberations by legal brains to bring amendments to the Constitution?” the chief justice wondered.

He also noted that the review petition against the Tikka Iqbal case was time barred by 39 days and that no certificate was issued by the counsel, who had earlier argued the case to his advocate-on-record to represent him before the bench.