Islamabad : Former Pakistani president Pervez Musharraf, booked for illegally detaining Supreme Court judges after declaring an emergency Nov 3, 2007, can be arrested only on the direct orders of the government since he enjoys legal and constitutional immunity, say police officials.
Besides, police are not authorised to approach the affected people (the judges) and the “other” accused to record their statements and investigate the matter because they were senior government officials, Dawn Thursday quoted the police as saying.
“The accused would be approached through the heads of their respective departments.
Likewise, efforts would be made to record the judges’ statements through registrars of superior courts, but whether they would agree to that was another matter,” the newspaper added.
Meanwhile, investigators have started collecting data, including orders issued during the judges’ detention, names of the issuing authorities, and officials who implemented it and who arranged material like locks and barbed wire to seal off their houses to which they had been confined.
The “others” named in the first information report (FIR) included officials of the police, the city administration and the interior ministry who were stationed in the capital during the emergency and played the main role in detaining the judges.
Lawyers that Dawn spoke to disagreed with the police, saying constitutional immunity only protected a sitting president. After vacating office, an individual could be arrested and prosecuted, they added.
Similarly, government officials are immune if they perform their official duty legally, but if they exceed their official brief or misuse their authority, they can be arrested and prosecuted, lawyers pointed out.
They also said a “weak” FIR (first information report) had intentionally been lodged to protect the accused from a possible high treason case under article 6 of the constitution.
The Islamabad police Monday registered a criminal case against Musharraf (FIR No 131 dated 10-08-09) under section 344/34 of the Pakistan Penal Code following the orders of the Additional Sessions Judge, Islamabad, Mohammad Akmal Khan.
Khan was acting on a petition filed by advocate Mohammad Aslam Ghuman seeking action against Musharraf for ordering the confinement of the Supreme Court judges.
The FIR states that Musharraf and others had detained the Supreme Court judges and their families at their houses and their children were neither allowed to attend school nor permitted to appear in examinations.
Judge Khan’s order came 11 days after the Supreme Court July 31 held that Musharraf had acted extra-judicially, illegally and unconstitutionally in declaring an emergency and sacking the apex court judges.
A 14-member bench headed by Chief Justice Iftikhar Muhammed Chaudhry, however, stopped short of censuring Musharraf as had been demanded in a petition the court was hearing against the declaration of the emergency.
The Supreme Court had summoned Musharraf, who is currently in London on a lecture tour, to appear before it July 29 in person or through his lawyer but he failed do so.
“Determining responsibility for the steps taken on Nov 3, 2007 is necessary,” Chaudhry observed July 22 before issuing summons.
Chaudhry, who was one of the 80-odd Supreme Court and high court judges sacked, had been reinstated in March after a bruising lawyers’ agitation.
Musharraf had sacked the higher judiciary after it refused to take fresh oath under the Provisional Constitutional Order (PCO) he promulgated along with the emergency.
The emergency had been declared just as the Supreme Court was to deliver its verdict on the constitutionality of Musharraf’s re-election in October 2007.
It had been contended that the same parliament and provincial assemblies that had elected Musharraf in 2002 had re-elected him in 2007 and this was unconstitutional.