The SC ruled that the judgment under review did not stand vitiated by any bias or error in law or fact to warrant a review.A 42-page judgment, authored by Chief Justice Tassaduq Hussain Jillani, ruled that the power of review could not be invoked as a routine matter to rehear a case which had already been decided nor change of a counsel would warrant sustaining of a review petition, but the same could be pressed into service where a glaring omission or patent mistake had crept in earlier by judicial fallibility.
“If the court has taken a conscious and deliberate decision on a point of fact or law, a review petition will not lie,” the judgment says.The court ruled that it had narrated with a measure of dismay the frequent constitutional deviations in the country. “The spirit which underpins the judgment is a strong realisation that we should not remain trapped by mistakes in history and turn a new leaf towards constitutionalism and the rule of law,” says the detailed verdict.
The court observed that the declarations and findings of July 31, 2009 judgment could not be a subject matter of review as neither there was any discovery of new or important matter or evidence which after the “exercise of due diligence” was not within the knowledge of the petitioner or could not be produced by him at the time when the judgment under challenge was passed.
The court observed that in fact, the petitioner’s learned counsel frankly admitted, on court query, first that the then prime minister Shaukat Aziz had written a letter to the President of Pakistan and not to the Chief of the Army Staff; second that the prime minister had not advised him to impose the state of emergency rather “the petitioner acted in his own discretion”.
“This frank admission by his counsel has further weakened his case for review,” the detailed verdict ruled questioning as how the petitioner in his capacity as chief of army staff or even as president could act on his own discretion.
“He had no power under the law to impose the state of emergency and make judges of the Supreme Court and high courts dysfunctional notwithstanding the mandate of Article 48 of the Constitution,” says the judgment.
Justice Jawad S Khawaja, in his additional note, observed that the proclamation of emergency, it would be seen, did not target the former chief justice alone as it targeted the judiciary of the country.
He said that much was clear even from a cursory reading of the text of the proclamation of emergency and the advice of the prime minister which was purportedly relied upon by the petitioner in taking his actions of Nov 3, 2007.He said, “We must remain cognizant of a central tenet of the rule of law, that the law must widely be accessible to the public.”
Former president General (retd) Pervez Musharraf had filed a review petition against the court judgment of July 31, 2009, declaring the steps taken on Nov 3, 2007 including imposing the emergency rule in the country as illegal and unconstitutional.
A full court on January 30, 2014, while hearing the review petition of the former military dictator for three days, dismissed it. “We find the review petition filed by General (retd) Pervez Musharraf was time barred and the precedent case law cited in this behalf was distinguishable,” the court ruled in its short order.
The court further ruled that the grounds urged by the petitioner’s learned counsel neither fell within the purview of review jurisdiction nor tenable on merit to warrant interference in the judgment under challenge.
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