Legal experts cite: Article 10A concerns over cipher verdict

KARACHI: Legal experts believe that Tuesday’s verdict in the cipher case by a special court is eminently appealable based on what they say are strong grounds questioning whether Article 10A was upheld during the trial process.

Calling the cipher case trial a “mistrial”, PTI leader and lawyer Barrister Ali Zafar told Geo News shortly after the verdict was announced that: “this was not a trial but a fraud with the justice system. The lawyers for Imran Khan and Shah Mehmood Qureshi were asked to step aside and told they couldn’t represent them. And state lawyers were appointed without permission.”

Confirming that the PTI lawyers would be filing an appeal with the Islamabad High Court, Zafar said that they were convinced that the way “justice has not only not been done but has been damaged, this appeal will be successful so in a way this verdict is a blessing in disguise.”

Also speaking with Geo News on Tuesday, former attorney general Ashtar Ausaf Ali said that, while there is a right to appeal, “until the punishment is overturned, the ten-year sentence stands.” When asked about the court-appointed defence lawyers, Ashtar Ausaf said that this was not an unprecedented measure, justifying it thus: “When your defence counsel is trying to delay things on your instructions or you yourself make things such that the trial is hindered then state lawyers can be asked to step in.”

For him, the case of Nixon was a good example of how “whenever there is a question of a country’s security or if official secrets laws are violated you will see that even a powerful president like Nixon had to resign. And if the president after Nixon had not pardoned him, Nixon would have been sentenced too.”

The News reached out to lawyers on how they see the special court’s verdict. To Supreme Court advocate Basil Nabi Malik, “the decision is unlikely to hold muster.” He explains: “Trials are a matter of fairness and ample opportunities to prove the merits of your prosecution or your innocence, as the case may be. However, wherever the trial court is faced with serious challenges or questions regarding the openness or transparency of the trial, such as in the case of a jail trial, or where there is uneasiness and a sense of injustice about the appointment of state counsels to defend an accused already aggrieved by state actions and conduct, there are bound to be major discrepancies which cannot simply be rationalized away or wished away. All of the above is already quite distressing, but when coupled with the speed with which it has occurred and the coincidence of it happening right before elections, it becomes all the more problematic.”

He is not alone in this assessment. Barrister Rida Hosain also brings up the right to fair trial per Article 10A of the constitution: “The right to a fair trial includes the right to be represented by a counsel of one’s choice.” She says that the decision to deprive Imran Khan and Shah Mahmood Qureshi of a counsel of their choice “compromises the entire trial process”.

The ten-year sentence has led to a mixed bag of reactions, some calling it a surprisingly ‘lenient’ sentence, given the political context surrounding the trial. Barrister Rida has a different opinion. Deconstructing the sentence, she says that even on merit “a sentence of ten years could only be imposed in three situations: (1) if it was shown that an accused acted in the interest or benefit of a foreign power; (2) disclosed information relating to defence installations; or (3) disclosed a secret official code. When the Supreme Court granted Imran Khan and Shah Mahmood Qureshi bail, on a tentative view, it said that there was no ‘sufficient incriminating material’ at that stage which showed that any of the three situations identified above engage. The fulfillment of any of the three conditions in any case requires a high threshold to be met.”

“We have been treated to a punchline”, says lawyer Abdul Moiz Jaferii, adding: “There are three parts to a joke. The first is the setup, then the build, and last comes the punchline...I cannot wait for the setup and build to be revealed to us through detailed reasoning.” His reading of the verdict? “Great because of how ridiculous it is. I would like to see how it is reasoned, and even more so how it will stand before a high court.”

Jaferii, who has previously also written on the cipher case, says that even if there were a case to be made against Imran for having misplaced the cipher or having been negligent, that would come under Section 5 of the Official Secrets Act, which he says carries a two-year punishment. He says that even that section “requires that the document that you mishandled was a map or something that contained a coded missive or something that if it had gotten to the enemy would have led to them creating a situation of compromise.”

That did not happen in this case, per Jaferii who says that “Imran Khan received a deciphered version of the cipher. He never saw the code.” Even if he had, Section 5 prescribes a two-year punishment. Jaferii explains that the 10 or 14-year punishment or death is given in Section 3 of the Official Secrets Act, which requires “wilful collusion with the enemy to cause knowing detriment to the state. This is what Imran Khan and Shah Mehmood Qureshi have been sentenced with.”

Is there a chance for the trial to be done all over again? Basil Nabi Malik says that, while the PTI will hope for the “decision to be set aside on appeal, it would not be surprising if the matter is then remanded back for a fresh decision upon fulfilment of all procedural and substantive requirements. Although the decision itself appears to be faulty, if overturned, the court will in all probability remand the matter back to the trial court to decide it afresh upon fulfilling all requisite procedural and substantive requirements of the law.”

On whether this verdict may be a “blessing in disguise” as declared by Barrister Ali Zafar, Malik feels that while “this decision may be helpful to [PTI lawyers] politically. on the legal front, it’ll simply result in another round of decisions and challenges.”

Barrister Ali Tahir, however, says that the verdict is a “golden handout for Imran Khan and Qureshi’s lawyers”, adding that “in my study and practice of law I have never heard of a case where state defence counsels were appointed only because the prosecution alleged delaying tactics by defence lawyers. The right to an advocate of choice is a fundamental right. In the same way, barring cross-examination and recording the 342 statement overnight has tainted the entire proceedings of any legitimacy.”

Essentially, lawyers are questioning both the haste in trial and judgment. Constitutional lawyer Usama Khawa says that in his legal opinion, “the rushed manner in which the jail trial was conducted, as indicated by the quick announcement of the verdict, raises serious concerns about the potential violation of fundamental principles of justice and the constitutional right to a fair trial.”

He also feels that “from a legal standpoint, Imran Khan and Shah Mahmood Qureshi seem to have strong prospects of prevailing in the appeal, particularly given the concerns about the rushed trial and potential violations of due process” but cautions that the case may not see a quick resolution “reflecting the standard pace of criminal appeals.”