ISLAMABAD, Feb 14: The Supreme Court on Thursday announced a 110-page detailed judgment giving reasons for validating Gen Pervez Musharraf’s declaration of the emergency rule on November 3, 2007, but accepted a review petition to be heard on Friday.

The review was sought by Tikka Iqbal Mohammad Khan who, along with Watan Party chairman Zafarullah Khan, had challenged the imposition of emergency and Provisional Constitution Order, removal of judges and curbs on the media.

The petition sought setting aside of the court’s verdict on emergency and said that the extra-constitutional step was against the national interest.

A 13-member bench of the Supreme Court comprising Chief Justice Abdul Hameed Dogar, Justice Saiyed Saeed Ashhad, Justice Ijaz-ul-Hassan, Justice Mohammad Qaim Jan Khan, Justice Mohammad Moosa K. Leghari, Justice Chaudhry Ejaz Yousaf, Justice Mohammad Akhtar Shabbir, Justice Zia Perwez, Justice Mian Hamid Farooq, Justice Syed Sakhi Hussain Bukhari, Justice Syed Zawwar Hussain Jaffery, Justice Sheikh Hakim Ali and Justice Mohammad Farrukh Mahmud will take up the review petition.

In its short order on Nov 23, 2007, a seven-member bench had accepted rise in terrorism and judicial activism as valid reason for the Nov 3 emergency and suspension of the fundamental rights by holding the situation on July 5, 1977, and Oct 12, 1999, similar to the present circumstances warranting the proclamation of emergency.

The court had ordered President Musharraf, the federal government and the Election Commission to ensure free, fair and transparent elections.

Authored by Chief Justice Dogar himself, the detailed verdict held that a tug of war launched by the “former Chief Justice of Pakistan” and some other judges of the Supreme Court and the high courts against other branches of the government had made them non-functional and ineffective.

It said: “Practically, the country had been driven to a state of lawlessness and the situation that prevailed on Nov 3 could have affected adversely the defence capability of the country. From this perspective, the present situation was even worse than the one that prevailed in October 1999, which was fully covered by the law laid down in the Zafar Ali Shah case.

“Therefore, the then army chief General (retd) Pervez Musharraf justifiably took an extra-constitutional step by means of proclaiming emergency on Nov 3, as in the past such constitutional deviations by the army chiefs had been validated by parliament in similar circumstances.

“These actions were taken by the then army chief in the larger interest of the state and for the welfare of the people in consonance with the maxim ‘salus populi est supema lex’ (welfare of the people is always supreme).

“However, soon after the imposition of emergency, the government announced the holding of election on schedule. Principle of derogation or deviation was also accepted even in international charters on protection of human rights.”

Article 15 of the European Commission on Human Rights, the judgment said, allowed any high contracting party to take measures by derogating from its obligations under this convention in times of war or other public emergency threatening the life of the nation.

Quoting from a book, titled Basu’s Human Rights in Constitutional Law, the verdict observed that a satisfactory solution to abnormal situation in a country having a democratic system of governance would be available if extraordinary powers to the government exist to meet such emergencies with least encroachment upon the rights and liberties of the citizens.

On the reinstatement of superior court judges, the judgment conceded that judges could not be removed without resorting to the procedure prescribed in Article 209 of the Constitution, but it declared the cases of judges who ceased to be the judges of the Supreme Court and high courts by virtue of Oath of Office (Judges) Order, 2000 (Order 1 of 2000) were hit by the doctrine of past and closed transaction and, therefore, could not be reopened.

About restrictions on the media, or the alleged detention of certain ‘lawyers-cum-political workers’, it said that owners of television channels as well as the alleged detainees are at liberty to seek remedy at appropriate forums in accordance with the law because the matter involved individuals.

“All through the emergency, there were no restrictions on the print media and the viewpoint of citizens got full coverage even critics of Nov 3 actions got extra coverage, rather undue projection. During this period, yellow journalism touched new heights and attempts to malign the institutions of the state were made, which was an unhealthy sign in this noble profession.

“It should be hoped that some thought would be given to this aspect of the matter at the appropriate level and an effort made to draw a line somewhere,” the judgment said.

On ordinances promulgated and legislative measures taken by the president during emergency, it held that these would continue to be in force by virtue of the PCO read with Article 270AAA(3) of the Constitution, until altered, repealed or amended by the appropriate legislature. There would be no question of expiry of these ordinances.

“The Pakistani nation needs to rise above all prejudices and stand together against the menace of terrorism as well as the misleading propaganda aimed at harming the vital interests of the country at the international level.

“The sovereignty, integrity and solidarity of the nation need to be preserved and protected internally as well as externally and the unabated gruesome terrorist activities worsening the security as well as the law and order situation called for zero-tolerance approach.

“It was an extraordinary situation that called for taking such measures, which were not provided by the Constitution,” the judgment emphasised.