Daily Times

The Lahore High Court (LHC) on Monday declared ‘unconstitutional’ the formation of a special court which tried former military ruler Pervez Musharraf for high treason.

A three-member full bench of the LHC, comprising Justice Syed Mazahar Ali Akbar Naqvi, Justice Mohammad Ameer Bhatti and Justice Chaudhry Masood Jahangir, delivered the unanimous verdict. The court ruled that the treason case against the former president was not prepared in accordance with the law. It declared that the amended Article 6 of the constitution, under which Musharraf had been found guilty, cannot be applied in the case ‘ex post facto’ (retrospectively).

The Article 6 of the constitution was modified through the 18th Amendment in 2010, while the case against Musharraf concerned events that happened in 2007.

The court ruling came in response to a petition filed by Musharraf challenging the formation of the special court for the high treason case against him.

Musharraf had been handed the death penalty in December last year after being found guilty on five counts in a 2-1 majority verdict. Subsequently, Musharraf had approached the LHC with three petitions filed earlier this month. He had challenged not only the conviction but also the formation of the special court that handed him the death penalty for high treason, as well as the complaint filed against him by the government of former prime minister Nawaz Sharif that resulted in the trial. However, the court had only admitted the petitions challenging the formation of the special court and the complaint registered against the former president.

According to both the federal government and Musharraf’s lawyer, after the high court’s ruling, the verdict issued by the special court stands void.

Earlier during the proceedings on Monday, the government presented in the court the summary and other records related to the formation of the special court set up to try the former president for high treason. Additional Attorney General Ishtiaq Ahmad Khan told the court that the constitution of a special court to try Musharraf under Article 6 of the constitution was not part of the agenda of any of the federal cabinet meetings of the government of former prime minister Nawaz Sharif. “The special court was constituted without the formal approval of the cabinet,” he told the court, and maintained that the charges filed against the former president were flimsy since, under the emergency powers of the executive, fundamental rights can be suspended.

The bench discussed if imposing an emergency amounted to the suspension of the constitution and Justice Naqvi remarked that ’emergency is part of the constitution’. “If the situation is such that the government imposes an emergency, will a treason case be filed against that government as well?” asked Justice Naqvi. “Can an emergency be imposed under Article 232?” asked Justice Bhatti. The additional attorney general conceded that such a step would be in accordance with the constitution. “Then how is it a deviation from the constitution?” asked Justice Naqvi. The AAG told the court that while passing the 18th Amendment, the parliament had included the suspension of the constitution in Article 6 as an offence. The bench asked if a person can be punished for an offence committed before an amendment is passed in that regard. “An offence committed in the past cannot be punished after new legislation,” the federal government’s counsel told the court. Justice Naqvi further said that by adding three words, the parliament had changed the entire status of the constitution. He was referring to the amendments made in Article 6, where the parliament had deemed the abrogation, subverting or suspension of the constitution as an offence of high treason. “How many members comprised the FIA team that conducted the inquiry against Pervez Musharraf?” asked Justice Naqvi, as the court examined the proceedings of the trial against Musharraf. “A 20-25-member team was constituted which completed the inquiry,” the AAG told the court. “How many of those members participated in the trial?” the judge asked. “Only one of them appeared [before the special court] for the trial,” said AAG Khan. “What is the value of an inquiry against Pervez Musharraf when those who conducted the inquiry did not appear during the trial [proceedings]?” remarked the judge.

Meanwhile, former president General (r) Pervez Musharraf on Monday hailed the decision of the Lahore High Court declaring the formation of the special court, which had sentenced him to death for high treason, ‘unconstitutional’. In an audio statement, he lauded the verdict of the high court, saying that the court made the decision according to the law and constitution. “I cannot comment on it but the decision is really good, I am very happy that the judgement is as per the law and constitution,” he said. He said his condition is gradually improving. “I am grateful to all those who prayed for my health,” he added.