Justice Nazar Akbar’s dissenting judgment

ISLAMABAD: Justice Nazar Akbar, in his minority dissenting judgment exonerating Gen (R) Pervez Musharraf, ruled that the Parliament endorsed the dictator’s Nov 3, 2007 imposition of state of emergency and that his act was not high treason.

Two other judges of the special court – Peshawar High Court Chief Justice Waqar Ahmad and Justice Said Karim of the Lahore High Court –, who were part of the Special Court, awarded capital punishment to Musharraf.

Justice Nazar Akbar wrote in his dissenting note that the Parliament through a resolution on Nov 7, 2007 in the 44th session of the National Assembly and the next Parliament (2008-2013) through the 18th Amendment by amending Article 6 whereby the offence of high treason was redefined, clearly protected Musharraf’s actions during that period (the emergency was in force). Even the star witness (then-interior secretary) agreed to the suggestion that the two pillars of the State – the legislature and executive – never raised any voice against the promulgation of emergency, the judge pointed out.

However, senior lawyer and former president of the Supreme Court Bar Association Kamran Murtaza, who was a member of the Senate when the emergency was imposed, disputes the justice’s opinion in this regard. “History needs to be corrected. It is a matter of record that I, as a senator of the Mutahidda Majlis-e-Amal (MMA), had submitted a motion in the Upper House of Parliament against the Nov 3 emergency, which the chairman had killed in his chamber,” the lawyer told The News.

He said the Parliament’s endorsement of an action like unconstitutional emergency proclamation is possible only through a constitutional amendment which was never done in the instant case. A non-binding resolution passed even by both the parliamentary chambers cannot have the effect of amending the Constitution or giving legal cover to Musharraf’s emergency, he stated.

Kamran Murtaza said the then-government had not picked up the courage to move even such a resolution of perfunctory value in the Senate to get endorsement of the state of emergency. He said when the issue of validating the 1999 martial law had come before the Parliament he had conveyed his refusal to the MMA to support it and had gone abroad.

Justice Nazar Akbar emphasised that suspending or holding the Constitution in abeyance that was done by Nov 3 emergency was not an offence when it was promulgated. This was made an offence by expanding the definition of “high treason” in the 18th Amendment, he pointed out and stressed that offence was retrospectively applied to Musharraf. He wrote that in fact, the Parliament by amending the definition of high treason [in the 18th Amendment] clearly approved and understood the offence explained by Justice Munir in his commentary on the Constitution. Until April 4, 2010 [when the 18the Amendment was enacted], the definition of high treason was restricted to the acts of “abrogation” and “subversion” and in Justice Munir’s language “no other act, however, grossly detrimental to the interest of country, but not attracting the provisions of Article 6 can be said to fall within the meaning of high treason”, Justice Nazar Akbar said.

He stated that had the Parliament intended that the amended Article 6 should have retrospective effect, the honest, brave and powerful people’s representatives in the Parliament could not have been shy of clearly expressing such intention in the amendment itself in respectful obedience to various observations of the Supreme Court.

Justice Nazar Akbar said it can’t be believed that the MPs were not aware of the law regarding retrospective effect of an amendment and that they were also not aware of declarations of the Supreme Court in the case of Singh High Court Bar Association with reference to Musharraf’s Nov 3 acts. “In my humble view, by redefining the offence of high treason, the Parliament has, in fact, consciously validated all actions of the accused of 3rd Nov or at least unanimously declared that such acts of the accused even if the same were ‘detrimental to the interest of country (Constitution)’, the same were not attracting the provisions of Article 6 on the said date. The Parliament by amending Article 6 has left no room for this court to charge the accused for an offence of high treason of his act of “suspending and holding in abeyance” certain provisions of the Constitution by proclamation of emergency order on Nov 3.”

The judge said that even many of the MPs, who were lawyers and were participating in the lawyers’ movement, had no courage to make any motion in the Parliament, maybe for the fear that the scope of the state of emergency may not be extended to the entire constitutional setup.

The judge said that the Parliament in support of Oct, 1999 proclamation of emergency had outrightly applied the infamous theory of “necessity” by introducing the 17th Amendment to specifically favour Musharraf. And this time through the 18th Amendment by amending Article 6, the Parliament has not only endorsed the resolution of earlier National Assembly dated Nov 7, 2007, but it has also given its verdict that the acts of Musharraf of Nov 3 were not high treason as they were not included in the definition of high treason in the Constitution prior to April 4, 2010.

In the judge’s view, people’s chosen representatives by “suspending or holding in abeyance” Article 63(1)(d) [A person shall be disqualified from being elected or chosen as and from being an MP if he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder] had only one purpose before them that they wanted to declare that the people of Pakistan want to decorate the office of the president with a serving general in violation of the constitutional embargo on the person “holding an office of profit” to even become MP.

“They knew that as a result of suspending Article 63(1)(d) even basic structure of the Constitution could be changed and yet they did it out of their personal needs to retain their seats in the Parliament. Many of the MPs on the date of passing 18th Amendment were the same who were in the Parliament on the date of passing of 17th Amendment when the act of “abrogation and subversion” of the Constitution through the Legal Framework Order [LFO] was affirmed and such acts of Musharraf were not termed high treason as if Article 6 was missing from the Constitution at the relevant time. The Parliament in the 18th Amendment had to protect the MPs, who were guilty of holding Article 63(1)(d) in abeyance from Dec, 2003 to Dec 31, 2004.”

Justice Nazar Akbar wrote that another reason for not giving retrospective effect was that the Nov 3 proclamation of emergency and Provisional Constitution Order (PCO) have not adversely affected political parties’ rights in the parliament and in running the federal and provincial governments. Therefore, one can safely say that parliament by first keeping silence and then amending Article 6 betrayed the judiciary, the only target of the Nov 3 acts, he opined and added that there was not a single formal protest in the National Assembly or in any provincial assembly from the government benches or opposition parties on the legitimacy or otherwise of the proclamation by the accused.