On the application from the former president, Pervez Musharraf and the federation, Islamabad High Court issued a written order on December 3, 2019; putting a stop to the verdict of Musharraf Treason Case by the special court. IHC Chief Justice, Athar Minallah, issued a 24-page written order, in which he stated the reasons for closing the ruling of the treason case. The written decree stated there were unique, unusual and unprecedented circumstances in the case.
“The federal government has full authority to appoint the prosecutor and the prosecution team. The fair trial is also entitled to prosecution as well as the accused…The federal government had only filed the complaint of emergency 2007 rather than the 1999 promulgation of Martial Law. The special court cannot decide a treason case without hearing the prosecutor; therefore, the federal government should be given adequate time to argue before the verdict is given.”
Even though CJ Minallah was the spokesperson of Ch Iftikhar Muhammad during his campaign for the restoration of the judiciary against the then President Musharraf’s declaration of emergency. Yet, he has wanted to ensure a fair trial for the former president. He also seems to have taken cognisance of the earlier pleas taken by Musharraf’s counsel and opinions of eminent lawyers of the land. The way the PML-N government functionaries had highlighted certain aspects of Musharraf’s treason trial and hidden or downplayed others was emblematic of a personal vendetta. Of course, the law must be allowed to take its course, but political victimisation should be avoided at all costs. The law must protect the constitution and should not be used to take personal revenge. From day one, Musharraf’s lawyers had taken the position that the then members of the cabinet, governors and government functionaries were equally responsible for the imposition of emergency.
In a speech by the then prime minister, Shaukat Aziz, he had admitted that Musharraf had consulted with military and civilian leadership before imposing emergency on November 3, 2007. Musharraf’s lawyers had raised the point that Aziz had moved a summary advising the then president Musharraf to declare an emergency. There was a lot of polemics and discourse on Musharraf’s treason trial after his indictment. Some legal experts were of the view that Shaukat Aziz had already admitted on the TV channels for having advised the then president to impose emergency, stating cabinet ministers and other abettors including political allies were on board. But the court had to proceed based on the charges of the prosecutor and investigator that had asked the court to move against Pervez Musharraf. Now CJ Islamabad High Court has raised very valid points.
Even though CJ Minallah was the spokesperson of Ch Iftikhar Muhammad during his campaign for the restoration of the judiciary against the then President Musharraf’s declaration of emergency. Yet, he has wanted to ensure a fair trial for the former president
The lawyers of the former president had submitted to the special court holding high treason trial a summary sent by the then premier Shaukat Aziz to the Presidency by on November 3, 2007. According to the defence lawyers, this summary was the basis to declare an emergency; but Mohammad Akram Sheikh, head of the then prosecution team, had raised doubts about the authenticity of the summary. Barrister Farogh Nasim, the then lead defence lawyer, suggested that to ascertain its genuineness the former PM might be summoned or testified through a commission or video link in case he cannot come to Pakistan. He had alleged the prosecution team had concealed the summary and did not bring it on the judicial record. The constitutional expert and renowned lawyer S M Zafar had remarked law could not be applied with retrospective effect, as the 18the amendment was passed in 2010.
There appeared a consensus among constitutional experts that Musharraf’s collaborators should also be tried under Article 6 of the Constitution, as the clause two of Article 6 states that persons aiding, abetting or collaborating with a person who abrogates the Constitution shall also be guilty of high treason. It is in this backdrop that some analysts say that instead of General (retd) Musharraf’s act of October 12, 1999, the entire focus is on his proclamation of November 3, 2007. There is a widespread perception that had the October 1999 act not been legitimised by the then judiciary, November 2007 would not have happened.
The Interior Ministry handed over the Federal Investigation Agency (FIA) report and other related documents to the prosecutor in the high treason trial.
The three-member special court, headed by Justice Faisal Arab, had remarked the interior secretary would be the first to record his statement in the high treason trial, and if he fails to appear in the court the case may be dismissed. Analysts continued to raise questions as to why treason case had been started based on November 3, 2007’s emergency and not from October 12, 1999. Appearing at a local TV channel, Zafar had more than once remarked: “Suspension or keeping the constitution in abeyance was not an offence on November 3, 2007, as it was added to the article 6 in the 18th amendment.” There seems to be a consensus among constitutional experts that Musharraf’s collaborators should also be tried as per Clause 2 of Article 6 of the Constitution.
The writer is a freelance columnist