Re: Musharraf's treason trial
^^^
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1) He did that as an army chief & not as the president (thus it would be considered a coup invoking article 6)
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Army chief can act on behalf of State with consent of President, and that is not coup. Coup always get followed with change of government ... unless it is failed coup.
Coup is an action that is against the State, where head of state or established government change hands. Coup does not happen where State is involved and no change of government happened, nor any step was taken against the government. Thus, you cannot say that Emergency of Nov 2007 was Coup or Martial law.
On Nov 2007, only Emergency was imposed where some parts of Constitution went in abeyance. Government of the time initiated the Emergency, asked President for it, and President decided that it would be Army Chief who would declare Emergency on his and state's behalf.
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2) What was the legal justification for suspending the Constitution?
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I did write earlier about legal justification for putting a part of constitution suspended. Please read:
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* What I know (or understood from various sources), that November 2007 emergency was imposed on country due to threat to the country from terrorism (Pakistan army was fighting terrorism and court was not punishing but releasing the terrorists). Another factor was financial, where court obstructing running of state financial matters, and that was again affecting whole country. Hence emergency on country ... and that emergency was declared on advice of Prime Minister, Cabinet, Provincial governors and Chief Ministers of all 4 provinces. Later emergency got approval from Parliament, Senate and '7 bench Supreme Court'. Further, it was army chief that declared the emergency on behalf of President ... due to terrorism in the country damaging or affecting the security of the country.*
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3) If you read the Constitutional it clearly states that joint sitting of the parliament must approve presidential actions, and that never happened.
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Both houses (Parliament and Senate) that form join sitting, gave their approval on emergency, even though approval was not necessary, as approval is needed to extend the emergency, and if no approval is taken then emergency expires in two months. 3 Nov 2007 emergency was lifted much before 2 months expired. Anyhow, if emergency is imposed, then joint sitting of Parliament and Senate can pass a resolution that can make emergency end. But with 3 Nov 2007, emergency was approved by National Assembly as well as Senate, and obviously no resolution came against the emergency. Here is relevant clause:
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[TABLE]
(7)
A Proclamation of Emergency shall be laid before a joint sitting which shall be summoned by the President to meet within thirty days of the Proclamation being issued and,
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(a)
shall cease to be in force at the expiration of two months unless before the expiration of that period it has been approved by a resolution of the joint sitting; and
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(b)
shall, subject to the provisions of paragraph (a), cease to be in force upon a resolution disapproving the Proclamation being passed by the votes of the majority of the total memberships of the two Houses in joint sitting.
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I think you are confused between validation and approval (that got caused by Media anchors misguiding people). In Pakistan Martial-Laws need validation of constitution (even though that is and should be illegal), and that happens with constitutional amendment. Government needs 2/3 majority in National Assembly and Senate to change constitution to validate Martial laws.
**Actually, first thing Musharraf lawyers should contest in court is that, 3 Nov Emergency was not Martial Law, and I think it would not be difficult to contest that. If it was not Martial law, then case ends then and there, as President can impose emergency anytime, without validation requirement of Assembly and Senate.
[Though, as far as 3 Nov Emergency is concerned, there was validation from President, Prime Minister, Cabinet ministers, Assembly, Senate, all heads of provinces (Governors and Chief Ministers), Joint Chief of Army Staff, Head of all armed forces, Head of intelligence agencies, Core commanders, and all relevant authorities, even SC (consisting of 7 bench judges including CJ Dogar) gave its validation to Emergency after 3 Nov].**
Approval happens with simple majority, and in many cases, majority in sitting Parliament. Anyhow, emergency do not need validation or approval, though 3 Nov emergency did get approval from Parliament of the time, Senate of the time, Cabinet of the time, as well as Supreme Court of the time.
Nov 2003 emergency was very soft emergency (unlike what Media wants people to believe). Most part of Constitution was intact, and a very small part of constitution got suspended. Judges were asked to take new oath so that they can work with new amended constitution (PCO). Those who did not take oath were considered as not willing to work and thus their job got terminated. Later they were asked to leave Judges’ residence, that they resisted and media started showing it as if they were put under house arrest (completely opposite to reality).
Fact was that, government wanted them Judges to leave the residence so that new Judges could be given their accommodation, and it was them who put themselves confined to their residence fearful that if they leave their government given residence, government would repossess their official residence. One judge (I think it was Justice Iqbal) accepted termination of SC judge job, left his residence and took another job without problem.
