Jurists believe para 66 of judgment not applicable, odious

KARACHl: The Special Court released it detailed verdict on Thursday in the high treason case against former military ruler Gen (retd) Pervez Musharraf, two days after the special court found the former president guilty of treason and handed him a death sentence evoking strong legal and political reactions and debates from govt and opposition ranks as well as from the army.

The Geo News in its special transmission and the daily current affairs shows discussed the issue with broad section of political and legal experts. Gen Musharraf’s counsel Faisal Chaudhary said if the high treason trial can be conducted and verdict given in the absence of the main accused, then we are within our rights to file an appeal in view of the former president’s health. Faisal said Musharraf had filed a petition to include aides and abettors in the emergency imposition which included the former PM Shaukat Aziz, CJP Dogar and Law Minister Zahid Hamid but the SC rejected the petition. He said once again on the day of the judgment the government filed a petition to involve the three main co-accused in the case but that was similarly rejected.

Chaudhary said the Islamabad High Court gave astay order which was also disregarded; this is not fair as the decisions are not based on discretions and they have to follow the law. Commenting on the para 66 of the special court’s detailed judgment, Faisal Chaudhary said it is a violation of the Supreme Court orders. He said it is another thing that a common man may talk like that but such remarks made by a judge are a blatant violation of the SC orders. Faisal said the country’s laws do not allow that. Furthermore, the two other judges of the bench have dissenting views against this viewpoint. Justice Gulzar will soon take over as CJP and things change with the change of institutional leadership. There are other senior judges in the SC including Justice Umar Ata Bandyal, Justice Musheer Alam who will review this judgment.

Attorney General Anwar Mansoor Khan told Shahzeb Khanzada in his programme doubts over mental capacity and misconduct by the PHC CJ leads to him being proceeded against in the SJC. The AG said only the Supreme Judicial Council can take a decision for and against the removal of a sitting judge. The intemperate language used in the verdict indicates his mental incapacity. He said in this backdrop, the judgment must be challenged. He said where the incapacity of a judge is clearly visible, he cannot be allowed to continue at that position. The attorney general says an author of intemperate remarks cannot be allowed to play with the lives of people. He said the judge’s mental and psychological finest must be determined.

Prominent advocate Rashid A Rizvi said the para 66 is unrelated and unwarranted and the appellate court must stop it from functioning. Rizvi said colleague judge Justice Shahid Karim has also differed from this part of Justice Waqar Ahmad Seth’s judgment. The decision by Justice Nazir Akhar is based on personal like and dislike, he said and added the learned judge had not discussed the merits of the case.

Aitzaz Ahsan said I oppose death sentence as once executed the person cannot be brought back. However Gen (retd) Musharraf must pay for the crimes he committed against the nation. He committed high treason twice, first by overthrowing a duly elected prime minister in Oct 1999. On the second time, he enforced State of Emergency and got arrested CJP and scores of other judges in 2007.

Aitzaz said Musharraf is correct in his objection that the 52 co-conspirators of imposing emergency must also have been convicted. The SC’s decision of ordering trial of the former president alone was also “outrightly wrong”. One person alone cannot control a country, Aitzaz said and added the abettors including the prime minister, law minister, CJP, generals must all have been tried for high treason. He termed para 66 of the detailed judgment as absolutely terrible and this part of the judgment has gone to benefit the former military dictator. He said the judge must be proceeded against in SJC under Article 211. Aitzaz said it needs to be seen if he is mentally fit.

Aitzaz said two judges have given him death sentence, while the third has acquitted him. In my opinion unless the bench unanimously passes death sentence, it cannot be applied. This decision has caused anguish among the rank and file of the Pakistan Army and can led to institutional clash, Aitzaz apprehended.

Ex AG Aushtar Ausaf said instead of contesting the case in the press, electronic and social media, it would be much better to file an appeal against the verdict. If concrete arguments are made in the appellate process, I am confident the former president will be acquitted. He said the media should be careful in using the word traitor as Gen Musharraf has been convicted for subverting constitution and not for giving away country’s secrets to any enemy. The judges should be extra careful in choice of words as it also violates their code of conduct.

Justice (retd) Mazhar Kaleem said the former president did not deliberately attend the proceedings of the high treason case and was declared absconder. He said generally absconders do not get any relief from the court. But in the Benazir Bhutto case an exception was made when her lawyers invoked the plea as a matter of right following which the appeal was also heard in absentia. However, Justice (retd) Mazhar said the most shocking and shameful aspect of the judgment is the remark regarding “hanging the body” which goes on to show the depths of degradation of civilization and morality that we have plunged into.

Barrister Ali Zafar was of the view that the controversial para 66 which talks of “hanging the body” was dissented by the other two judges. They have contended that according to Article 6, the convict could "alone be given death sentence and no more." Only the punishment mentioned in the law can be given. The use of intemperate language used by the respected judges shows his bias against the former president. The government is the prosecutor which would see that the decision is made under the law. The appellate courts have all the option but it appears that the SC will define it in light of the arguments forwarded in this case. The court can allow recording statement of the accused on video link. The detailed judgment has left many questions unanswered.

Babar Sattar said it would have been much better if para 66 was not part of the detailed judgment. Rest of the judgment is a balanced verdict. He said the subversion of the constitution cannot be denied. .

Salman Akram Raja, said Gen (retd) Musharraf has the right to appeal in 30 days, but the question would be if he appears there in person. If he cannot appeal he would have to seek exemption and that would purely be the discretion of the SC to allow it. He can also personally file appeal against the verdict when he recovers. The para 66 authored by Justice Waqar Ahmad Seth is beyond my wildest imagination that such a language could ever be seen in a judgment.

Barrister Salman Akram Raja said operation of para 66 is not applicable as it is not the order of the court but that alone of one judge, dissented by the two other judges of the bench. Raja said here the invocation of high treason does not mean that the former general is the traitor who passed on country’s secrets to the enemy, he committed high treason by subverting constitution.

In Geo’s current affairs programme, Capital Talk, former chairman Senate Wasim Sajjad said the part of the detailed judgment regarding "hanging the body" is violative of law and constitution. He said no law of the country allows such a barbarism and it is difficult to comprehend why Justice Waqar Ahmad Seth authored such an order. Sajjad said under Article 6 the translation of high treason in Urdu as “traitor is extremely harsh”. Subversion of constitution aptly explains the actions of Gen (retd) Musharraf. Under the law the conviction includes death or life term.

Yasin Azad said the para 66 of the judgment by the CJ PHC Justice Waqar Ahmad Seth has a strong symbolic value to forewarn any military adventurists. Azad said instead of creating an issue over the judgment by the special court, appeal must be filed. He said the judgment says the former president will have to surrender in order to benefit from the appellate process. He said the law minister must be served contempt notice for proposing moving Supreme Judicial Council against Justice Waqar Ahmad Seth for being “mentally unfit.” He said how can the attorney general go in appeal against the high treason judgment being the prosecutor in the case. It was highly improper for the attorney general of Pakistan to defend a convict. Azad said it would not be wrong to term those cabinet members using strong words against the judiciary as sick.

Azam Nazir Tarar said the PHC CJ Justice Waqar gave a whole context and historical references for writing para 66. However, since that is not a functional order there is no reason of anguish and giving strong reaction. On the issue of the abettor and aiders not being convicted in the high treason case, Tarar said it is the right of the prosecution to determine who would be tried.