Death for Pervez Musharraf overturned

LAHORE: The Lahore High Court (LHC) on Monday declared the formation of a special court, which tried the former dictator Pervez Musharraf on charges of high treason and handed him death penalty, as unconstitutional, resulting in annulment of his capital punishment.

The LHC full bench, headed by Justice Sayyed Mazahar Ali Akbar Naqvi, set aside all steps starting from the formation of a special court, filing of a complaint, appointment of prosecution team, trial in absentia and conclusion of the trial (…death sentence to Musharraf), ruling that they were done in violation of the Constitution, law and principles of criminal justice system, laid down by the superior courts. Justice Muhammad Ameer Bhatti and Justice Chaudhry Masood Jahangir were also part of the bench.

The court further ruled that the amended Article 6 of the Constitution, under which Musharraf had been found guilty of suspension of the Constitution, could not be applied in the case ‘ex post facto’ (retrospectively). The Article 6 of the Constitution was modified through the 18th Amendment in 2010, while the high treason case against Musharraf was filed in 2013 for the events which took place on Nov 3, 2007 and thereafter, when Musharraf had held the Constitution in abeyance after imposing a state of emergency in the country. Holding the Constitution in abeyance was inserted in Article 6 through the 18th Amendment.

The three-member bench delivered a unanimous verdict, which it had reserved earlier in the day after conclusion of arguments. Musharraf was sentenced to death by a special court in Islamabad on Dec 17, 2019, six years after the trial started.

The case was filed by the PML-N government against Musharraf for suspending the Constitution on Nov 3, 2007, when he declared a state of emergency in the country. In his petitions following the verdict, Musharraf through his counsel, Advocate Muhammad Azhar Siddique had asked the LHC to set aside the conviction, formation of the special court as well as the complaint filed against him by the government of former prime minister Nawaz Sharif that resulted in the trial. However, the LHC had decided to hear and decide the petitions to the extent of challenging the formation of the special court and the complaint registered against the former president. Setting aside filing of high treason complaint and appointment of prosecution team, the court also ruled that the treason case against the former president was neither prepared nor filed in accordance with the law as the mandatory cabinet approval was not sought. Only the then prime minister Nawaz Sharif had issued a directive to file a high treason complaint without approval of the cabinet, whereas the Section 3 of High Treason (Punishment) Act 1973 requires that the federal government might authorise a person of its choice for the purpose. The court observed that in the light of judgments of apex court the “federal government includes prime minister and cabinet”. The court also struck down Section 9 of the Criminal Law Amendment (Special Court) Act, 1976, which allows the special court to conduct trial in absentia, being ultra vires of the Constitution. The court ruled that trial in absentia is violation of Article 10-A of the Constitution which guarantees the right to fair trial. The former military chief is currently in Dubai in the United Arab Emirates. He was admitted to a hospital following deterioration of his health last month.

Earlier, Additional Attorney General (AAG) Ishtiaq A. Khan, appearing on behalf of the federal government, presented the summary and record of formation of the special court. He told the court that the constitution of a special court was not part of the agenda of federal cabinet meetings of the government of former premier Nawaz Sharif. "The special court was constituted without the formal approval of the cabinet," Khan said in the court. He also maintained that the charges filed against the former president were flimsy since, under the emergency powers of the executive, fundamental rights could be suspended. When asked whether the matter of filing a complaint in the case had come up in the cabinet meetings, AAG Khan responded in the negative. About nomination of judges for the special court, the LHC bench remarked that the chief justice of Pakistan was not authorised to do so under the law and the Constitution. The bench remarked that neither there was a law nor there had been any precedent in that regard. On the issue of declaring a state of emergency, Justice Naqvi remarked that "emergency is part of the Constitution" and questioned if imposing an emergency amounted to the suspension of the Constitution. "If the situation is such that the government imposes an emergency, will a treason case be filed against that government as well?" asked Justice Naqvi. "Can an emergency be imposed under Article 232?" asked Justice Bhatti.

The additional attorney general conceded that such a step would be in accordance with the Constitution. "Then how is it a deviation from the Constitution?" asked Justice Naqvi. The AAG told the court that while passing the 18th Amendment, the parliament had included suspension of the Constitution in Article 6 as an offence. The bench asked if a person can be punished for an offence committed before legislation passed in that regard. "An offence committed in the past cannot be punished after new legislation," the federal government's counsel told the court.

Referring to the amendments made to Article 6, Justice Naqvi further said that by adding three words, the parliament had changed the entire status of the Constitution. The parliament had deemed the abrogation, subverting or suspension of the Constitution as an offence of high treason. "How many members comprised the FIA team that conducted the inquiry against Pervez Musharraf?" asked Justice Naqvi, as the court examined the proceedings of the trial against Musharraf. "A 20-25 member team was constituted which completed the inquiry," the AAG told the court. "How many of those members participated in the trial?" the judge asked. "Only one of them appeared [before the special court] for the trial," said AAG Khan. "What is the legal value of an inquiry against Pervez Musharraf when those who conducted the inquiry did not appear during the trial [proceedings]?" remarked the judge.

Last week, a legal expert was appointed as amicus curiae by the court and he had told it that the constitution of a special court to try former president Pervez Musharraf was not done according to the law. "The complaint filed against the former president was not filed through the right authority," Barrister Ali Zafar had testified. Zafar had maintained that whenever Article 6 mandated that a case be filed against a high-ranking official, the federal cabinet was endowed with the authority to have the final say on the issue. "Who will give permission to the authorities to file such a complaint?" Zafar questioned. "Under these circumstances, the grounds for the filing of the case are questionable. No meeting of the federal cabinet was held to discuss the case, according to my knowledge," Zafar told the bench in response to a question about the cabinet meetings on the issue back in 2013.