ISLAMABAD: As the special court resumes the treason trial of former president retired Gen Pervez Musharraf on Tuesday, his legal team has finally got hold of a document to prove what they have been agitating for a long time that the civilian leadership abetted in the proclamation of Nov 3, 2007, emergency.

Led by Senator Farogh Naseem, the defence had twice filed applications in the special court headed by Justice Faisal Arab implicating a number of high-profile civilians and armed personnel in the treason trial for their alleged role in imposition of the emergency.

Even the prosecution side had produced a set of notifications issued by the cabinet division while imposing the emergency.

Now the defence team has with it a two-page letter written by then prime minister Shaukat Aziz to Gen Musharraf on Nov 3, 2007, tendering an advice under the Constitution for imposition of the emergency.

“This appears to be the only solution left to meet the national security situation,” the letter said, adding that the advice was being tendered after consultation and in concurrence with the cabinet.

The letter itself mentions that Mr Aziz wrote two letters on the same day to the president highlighting the critical situation prevailing then, but he did not tender any advice to the president in the first letter to proclaim the emergency. The contents of the first letter were also cited by the Supreme Court in its July 31, 2009 landmark judgment which declared the emergency unconstitutional, but the contents of the second letter were never mentioned anywhere earlier.

“This is an important piece of evidence but both the government and the prosecution tried to conceal it which is unfortunate,” Farogh Naseem said while talking to Dawn.

Former president’s legal team gets hold of key document

“To me it amounts to perjury and contempt of the court since the process of justice is obstructed,” he said, adding that he would request the special court to take notice of it when he would appear before the court on Tuesday.

“The advice of the prime minister or the cabinet is usually binding on the president but under Article 48(1) of the Constitution, the president can send any matter back to the cabinet for reconsideration. But if the same advice is again tendered then it will become binding upon the president to act on it,” explained senior counsel Advocate Idrees Ashraf.

When asked if the special court could summon Shaukat Aziz, he said it was up to the court to decide if the matter was brought before it since the court was hearing Article 6 case proceeds only against individuals named in the complaint.

“Pakistan is at the brink of a very dangerous situation as terrorism has become rampant in the country,” Mr Aziz said in the second letter. He mentioned suicide bombings, with extremists roaming freely, not afraid of law-enforcement agencies.

As a direct consequence, it said, the extremists and terrorists were violating the writ of the state as they had installed their own parallel government. Without naming anyone, the letter highlighted the role of some members of the superior judiciary and said they had subjected government officials to humiliation in their courts where they were admonished and, at times, sentenced.

The former prime minister said in the letter: “There are about 100 suo motu cases which are being processed in the Supreme Court while there are thousands of pending applications. These suo motu cases concern government departments and as a consequence the government functionaries have to visit the courts in response to notices requiring their personal attendance.

“Because of the attitude of some members of the superior judiciary, government functionaries are hesitant to take any decision on any matter or pass any order, lest this may end up with their being admonished, ridiculed or sentenced by the courts.

“A grave emergency exists in which the security of Pakistan is threatened due to the internal disturbances which are beyond the control of the federal and provincial governments. A situation has arisen where the government cannot be carried on in accordance with the Constitution. There is no way out but to take emergent and extraordinary measures.

“After examining the situation and after discussion with the people belonging to all segments of society, I advise you to immediately issue a Proclamation of Emergency, Provisional Constitutional Orders or President’s Orders, amending the Constitution, an order prescribing fresh oaths of office for the members of the superior judiciary to abide by the Proclamation of Emergency and orders issued in pursuance thereof.”

Read copy of the document below:

Published in Dawn, September 9th , 2014