Top legal experts term decision fair, some disagree

ISLAMABAD/LAHORE: The top legal minds of the country are divided on Special Court’s verdict in General (R) Pervez Musharraf’s high treason case.

Some experts believe that he was given the right to fair trial, but he chose to be an absconder whereas some experts think that the court verdict has been issued in haste and the accused has been denied the opportunity of fair trial.

Those who support the special court’s verdict think the accused was given ample opportunities to defend himself in the high treason case. According to these experts,“The former dictator Pervez Musharraf not only subverted the Constitution of Pakistan twice but also violated the High Treason Act. The high treason case was filed in last quarter of 2013 which means the case was heard for last six years. If the former dictator chose to be an absconder than this is not court’s fault. Similarly, the question raised on the constitution of Special Court’s bench is also invalid as it is prerogative of the Chief Justice of Pakistan whom to appoint or not.”

Those who believe that due process was not followed in Pervez Musharraf’s high treason case argue that the court has given the verdict in haste and he was not given the right to fair trial. According to them, the Supreme Court cannot dictate that who should be charged in any case and who shouldn’t be charged. If the legal team of the accused had raised some questions, then it should have been given opportunity to present the case before reaching the conclusion, but the Special Court denied this opportunity.

Justice (R) Wajihuddin Ahmed while talking to The News said Musharraf was given ample opportunities to defend himself before the Special Court in high treason case. He, however, chose to remain absconder instead of facing the charges.

“I think Article 10A doesn’t attract in Pervez Musharraf’s high treason case as the Special Court has been hearing this case since last six years. If the accused chose not to appear before the court then it is not the court’s fault. His legal team must have argued before the court as this was not a one sided hearing. Although it was a trial in absentia, but I believe the Special Court must have fulfilled all requirements,” commented Justice (R) Wajih.

Talking about the constitution of the bench, Justice Wajih believes that normally judges are elevated and the same has happened in this case as one of the judge was appointed as Chief Justice of Balochistan High Court. Obviously, the Chief Justice of Supreme Court of Pakistan has to appoint some other judge to fill the gap.

“Therefore I don’t think any question can be raised on the constitution of the bench as it is the CJP’s prerogative that whom he appoint for any bench,” he remarked.

Justice (R) Nasira Iqbal while talking to The News said Musharraf not only subverted the Constitution of Pakistan twice but he also violated the High Treason Act. She said the punishment for the act of high treason is death penalty.

“The Special Court constituted for high treason case of former dictator Pervez Musharraf held almost 125 hearings which continued for around six years. Don’t you think it’s an ample time for the accused to present himself before the court and defend himself against the charges? I am sure the former dictator has a legal team who must have presented his case before the court then how can one raise the question of right to fair trial,” commented Justice (R) Nasira.

The legal team of Musharraf if believe that others who abetted him in subverting the Constitution should be prosecuted too then the prosecution team can initiate a fresh case against those abettors. Why should the court mix it with Musharraf’s case which has already been under trial since last six years, asked Justice (R) Nasira?

“If former dictator Ayub Khan was tried in the high treason case the things would have been different, but no one dares to talk about this. I believe this is a right decision and the accused was given right to fair trial which he missed by absconding,” she said.

Talking about the constitution of bench, she said this is not an important matter as it is CJP’s prerogative whom to include in any bench and whom not. She said if the case is under trial since last six years then obviously new benches must have been constituted as there are fair chances of retirement of any judges or they might be elevated.

Former president Supreme Court Bar Association Kamran Murtaza said the Special Court verdict is not only a step in the right direction, but it will ensure the civilian supremacy. He said the notion of Musharraf being denied right to fair trial is absolutely incorrect as he was given enough opportunities to clear himself from these charges. However, he preferred to remain proclaimed offender instead of facing the charges.

Although trial in absentia is not an ideal situation but in Pervez Musharraf case, the Special Court gave him ample opportunities. For six years the case was under trial but he did not bother to appear before the court. Should the courts wait for decades for the absconders? He said the case was delayed due to Pervez Musharraf’s delaying tactics resultantly the CJP has to reconstitute the bench as one of the judge was elevated as Chief Justice of Balochistan High Court.

Treason is not only betraying the country, but subverting the Constitution of the country is also an act of treason. Therefore, the general public should understand this notion that if someone overthrows the Constitution then he has committed the act of treason which is punishable with death penalty, said the former president of SCBA.

Former attorney general Irfan Qadir said the Special Court verdict has been issued in haste and the due process was not followed in this case. Normally, he said, the courts do not show haste in criminal cases. Since this was a high profile case, the court must have given the right to fair trial but unfortunately this was not done in Musharraf’s high treason case.

“The Supreme Court of Pakistan cannot dictate that who should be tried and who should not be tried. If the Special Court has reached its conclusion then why a short order was issued why not the detailed judgment. Normally in cases with capital punishment the courts issue detailed judgment with proper reasoning,” commented Irfan Qadir.

Former SCBA president Syed Ali Zaffar while talking to The News said the Special Court verdict has raised some questions as the accused was not given right to fair trial in this case.

“Article 12 of the Constitution of Pakistan attracts in Pervez Musharraf case. In 2007, when Pervez Musharraf subverted the Constitution by declaring Emergency the suspension of the Constitution was an offence though but it was not an act of high treason. The suspension of Constitution was declared an act of high treason later in the 18th Constitutional Amendment in 2010. Therefore, under Article 12 of the Constitution, the Special Court cannot try Pervez Musharraf in high treason case,” argued Syed Ali Zaffar.

Similarly, the prime minister cannot constitute or order for the Constitution of a bench of Special Court without the approval of federal court. But in this case the then prime minister constituted the bench without approval of the federal cabinet and this raises many questions, he said.

Talking to The News, senior lawyer Azhar Siddique said that Musharraf has not been given the right to fair trial in the high treason case.

“When the accused Musharraf offered for the recording of his statement under Article 342 CrPC by a commission why did the court deny him this opportunity? This is a high treason case and the court is awarding death penalty sentence to the accused without listening him. This raises many question as the accused has been denied the right to fair trial in a capital punishment case,” commented Azhar Siddique.

In criminal cases, when the courts award death penalty to any accused then it release the detailed judgment rather than a short order. He said this is not a constitutional petition but a criminal case where courts cite the reason of the penalty. However, in Pervez Musharraf’s high treason case the court has issued a short order which raises many questions.

“Similarly, the constitution of bench is also questionable as the prime minister alone cannot issue the directives of forming a bench without the approval of federal cabinet. This can be justified by Islamabad High Court recent judgment in PTD 1272 of 2018 has cited that the federal government means federal cabinet and not alone the prime minister. But in Musharraf’s high treason case the then prime minister constituted the bench without approval of the federal cabinet which is questionable,” said Azhar Siddique. He said co-accused in the case were never touched.

Eminent legal expert Aitzaz Ahsan said it is first time that the theory of necessity is not employed in the court verdict. However, he said there is a major lacuna in the verdict of the Special Court.

Legal expert Faisal Chaudhry said the verdict violated Article 10A. He said pick and choose was done in the case and law and Constitution were violated. Former judge of LHC Ibadur Rehman Lodhi said the Special Court decision is absolutely right and according to law.

Former attorney general Ashtar Ausaf said the apex court has declared Shaukat Aziz, Zahid Hamid and former chief justice Abdul Hameed Dogar exonerated from the case. He said the government can file a case if it believes that the trial of other co-accused must also be carried out.