A chronology of Musharraf trial

ISLAMABAD: Almost all major developments regarding first ever treason trial of a military dictator in Pakistan’s history starting from January 23, 2012 unanimous resolution passed by the Pakistan People’s Party (PPP)-dominated upper house of the parliament were made following orders of the Supreme Court.

The story started from the July 31, 2009 historic judgement of the apex court penned down by a bench comprising 14 honourable judges which declared November 3, 2007 acts of General Musharraf as unconstitutional and abrogation, subversion of the constitution. However, this judgement hasn’t ordered initiating a treason trial against the forth military dictator General Musharraf under Article 6 of the constitution and the High Treason (Punishment) Act, 1973.

Though Article 6 of the constitution and 1973 High Treason Act were present and came into existence during regime of PPP government headed by Zulfiqar Ali Bhutto, the procedure to initiate a treason trial was not clear. It was during the same ZAB tenure that parliament passed Act XVII of 1967 known as Criminal Law Amendment (Special Court) Act 1976 which described the whole process in detail. However, still it was not clear that which functionary from the federal government will file a complaint that an act of high treason has been committed. Again during the PPP’s Benazir Bhutto’s second government it was made clear through an SRO that such a complaint will be filed by the federal interior secretary.

As no treason trial was initiated against any of the three dictators in past, so Senate of Pakistan took the lead and passed a historic resolution on January 23, 2012 demanding immediate arrest of forth dictator General Musharraf upon his arrival in Pakistan and initiation of a treason trial against him under article 6 of the constitution for abrogating and subverting country’s constitution on November 3, 2007. This resolution prompted moving of many petitions in the apex court praying for a categorical order to the federal government for initiation of treason trial against Musharraf. However, fearing his arrest, General Musharraf arrived in Pakistan only on March 24, 2013 at the end of PPP regime.

The apex court which was already hearing cases regarding implementation of its previous orders took up these petitions as well and issue notices to the federation and General Musharraf. However, the caretaker government informed the court that it cannot initiate the trial because of its limited mandate which is restricted to holding general elections. Caretaker government suggested the apex court that the issue of initiation of treason case should be left for newly government to elected as consequence of May 11, 2013 general elections. Apex court in its April 8, 2013 order directed the federal government to place name of General Musharraf on ECL. The caretaker federal government informed the apex court on April 9, 2013 that Musharraf’s name was already on ECL. This proves that claim of some PML-N leaders that their government placed Musharraf’s name on ECL is untrue.

In its April 8, 2013 order, the two member bench of apex court reproduced some important parts of the petitions which quote certain paras of July 31, 2009 judgement as under; “56. Each member of the Armed Forces, as per his oath under the Third Schedule to the Constitution in pursuance of Article 244, is bound to bear true faith and allegiance to Pakistan and uphold the Constitution which embodies the will of the people. He is also sworn not to engage himself in any political activities whatsoever … We agree with the contention of the learned counsel that General Pervez Musharraf failed to abide by his oath to preserve, protect and defend the Constitution. The Constitution was framed to continue to be in force at all times. By

“Article 6, an in-built mechanism was provided to safeguard the Constitution from its abrogation or subversion by anyone, that is to say, it could neither be cancelled by anyone nor could it be overthrown or undermined by anyone in any manner or mode whatsoever.

“In the light of the above discussion, the actions of General Pervez Musharraf dated 3rd November, 2007, viz., Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, etc. are held and declared to be unconstitutional, illegal, mala fide and void ab initio.

“ … that the holding in abeyance of the Constitution and/or making amendments therein by any authority not mentioned in the Constitution otherwise than in accordance with the procedure prescribed in the Constitution itself, is tantamount to mutilating and/or subverting the Constitution … It should be noted that Articles 6 and 237 were framed in the backdrop of the successive abrogation of the Constitutions and imposition of martial laws in the country from time to time by the General commanding the Army at his will and whim.”

The April 8, 2013 order also discussed the historic resolution passed by Senate as one of the basis of these petition as; “5. Learned counsel for the petitioners have also referred to a resolution passed by the Senate of Pakistan on 23.1.2012. The relevant part of this resolution is as under:-

“Therefore, the House resolves that for these amongst other facts, reasons, acts, breaches and grounds, that: a) He [General Rtd. Pervaiz Musharraf] be arrested immediately on arrival in Pakistan; b) That the Federal Government institutes a case under Article 6 of the Constitution against him”.”

The court concluded order as; “The Secretary, Interior shall also make sure that if the name of the aforesaid respondent General Rtd. Pervaiz Musharraf is not already on the Exit Control List, this shall be done forthwith and a compliance report of this order shall be submitted in Court during the course of the day. The Federation and all its functionaries shall also ensure that the respondent does not move out of the jurisdiction of Pakistan until this order is varied/modified.”

After caretaker government’s refusal to move ahead regarding treason case, the apex court, during hearings of the same cases, press the attorney general of the new PML-N government to initiate treason trial as it was basic constitutional legal requirement under article six and High Treason Act of 1973. However, PML-N government was reluctant to initiate this trial and hence apex court informed the federal government in categorical terms that a contempt of court proceedings will be initiated against it if it failed to comply with the its constitutional obligations under article six and High Treason Act. This was the first month (June 2013) of Nawaz Sharif government and this was first major legal challenge.  A prime minister was sent home only few months back in a contempt of court case. On June 24, 2013 Prime Minister Sharif announced on the floor of the National Assembly that his government has decided to initiate treason trial of General Musharraf. Nawaz subsequently ordered FIA to immediately launch comprehensive investigations into the the unconstitutional acts of November 2007.

However, during the course of the trail, Genral Musharraf’s legal team completely focused on convincing the special court to include as many people as possible in treason trial of general Musharraf as his abettors. This could have led to complete confusion and treason trial could have been derailed. As a matter of fact, apex court had examined all acts of November 3rd 2007 in detail and has held General Musharraf solely responsible. General Musharraf had imprisoned apex court judges and imposed emergency through a notification which starts as; “I, General Pervez Musharraf, Chief of Army Staff.”. This left no room for any confusion by Musharraf’s legal team succeeded to create confusion and delay the treason trial for some time. The issue went out of special court and was challenged before superior courts. After a long legal course, the apex court penned down another historic judgement on February 26, 2016 declaring in categorical terms that “only General Musharraf” can be tried under article six of the constitution by the Special Court.”

Not only this, when he moved first Sindh High Court (SHC) and then Supreme Court for removal of his name from ECL which was put there in compliance with 2013 interim orders of apex court, both superior courts asked government to provide reasons for placing ex-dictators name on ECL but PML-N government avoided doing so for obvious reasons. Even in its last order on March 16, the apex court asked government to decide whether to regulate custody of General Musharraf or restrict his movements because of high treason trial against him but the federal government which was trying to send Musharraf abroad for the last two years took no time in allowing him to fly abroad. All good judgements of the superior judiciary and struggle of democratic forces to undo past wrongs and to put country’s fragile democratic system on track by putting an end to unconstitutional interventions ultimately become fruitless.