Reviewing the Verdict of The Special Court in Gen. (Retd.) Musharraf’s Case: Violation of The Rule of Law and Norms of Justice

On 17-12-2019, the Special Court sitting in Islamabad for the trial of former Chief of Army Staff and President of Pakistan, Mr. Syed Pervaiz Musharraf decided the case and held him liable for capital punishment, with a majority. This writing will deal with the decision passed by the special court, along with the post-announcement implications created by the Government, and possible outcome on appeal in future, as per writer’s legal understanding. 

As a preliminary point, like every other enlightened individual of a civilized society, the writer is not, at any stage, in any way whatsoever, proposing a dictatorship, coup d’etat, martial law or emergency. The writing is focused upon the trial, its procedure, modus operandi, judgment, sentence and post-verdict implications.

The political system of Pakistan has witnessed many eras and the political system is usually divided in the history as tenures of democratic regimes and regimes of dictatorship. The last regime of direct dictatorship was governed by Gen. retd. Musharaf. He is currently in the I.C.U, abroad, beyond the territorial jurisdiction of Islamic Republic of Pakistan.

The Ministry of Interior, filed the complaint in the special court against him. The three member bench comprised of Justice Waqar Seth, Justice Shahid Karim s/o Justice Fazal Karim and Justice Nazar Akram. The aim of the complaint was to try the accused for high treason as defined under Article 5 and 6 of the Constitution of the Islamic Republic of Pakistan, 1973.  The modus operandi of the said trial was held to be provided under section 3 of the High Treason (Punishment) Act, 1973. The section reads as follow:

‘3. Procedure: No Court shall take cognizance of an offence punishable under this act except upon a complaint in writing made by a person authorised by the Federal Government in this behalf.’

As Ministry of Interior was part of Federal Government and authorized by it, thus it was said to have lawful authority to become a complainant on behalf of the federal government. The alleged offence of Mr. Pervaiz Musharraf was that he unlawfully or unconstitutionally abrogated the constitution by declaring emergency on 3^rd November, 2007, during his regime as President of the Islamic Republic of Pakistan.

During this period, the then Chief Justice Mr. Iftikhar Hussain Chaudhry and few other judges were removed from their office and reference was filed against them. Meanwhile, restrictions were imposed upon the media and freedom of the press. The emergency was held to be legal by the Supreme Court itself. However, as soon as the new democratic regime came, a petition was filed in the Supreme Court, by Maulvi Iqbal. The case titled Maulvi Iqbal v Federation of Pakistan[1] was disposed of with direction to the federation to initiate proceedings and trial be conducted in a special court. Under the direction of that judgment, this special court was formed. Federation initiated investigation through FIA and as per the Specials Court’s statement, an offence was legally initiated.

These were the facts which were quoted in the judgment, however these in my opinion are disputed facts due to the following reasons :

• Mulvi Iqbal’s case was later revealed to be filed on the instruction of the then Chief Justice Iftikhar Chaudhry.
• At the time the reference or complaint of high treason offence was sent to the law office for the opinion, the A.G Irfan Qadir, himself, stated that he informed the Federal Government that no offence of High Treason is maintainable or plausible against Gen.retd. Pervaiz Musharaf.

• Constitution of the Special Court was itself under dispute at the time it passed this verdict. The trial was initiated at the High Court , against whose verdict, an appeal will lie only to the Supreme Court. This is against the legal rules and the law itself. Secondly, the mode of initiating a trial at the High Court was last done in the case of Mr. Zulfiqar Ali Bhutto, former President, and Prime Minister of Pakistan. The judgment of the Supreme Court wherein an accomplice was held for capital punishment was later ruled as black law.

• The Special Court cited the Article 6 of the Constitution of the Islamic Republic of Pakistan, 1973 as follow:

‘6. High treason.

(1)     Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.

(2) Any person aiding or abetting or collaborating[2] the acts mentioned in clause (1) shall likewise be guilty of high treason.

(2A) An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and a High Court.

(3)Majlis-e-Shoora (Parliament) shall by law provide for the punishment of persons found guilty of high treason.

The point of contention here is that the very offence under Article 6(1) never mentioned suspension or abeyance of the Constitution as an offence. The very offence was inserted by the Section 4(i) of the Constitution (Eighteenth Amendment) Act, 2010. Previously, the Article 6 read as follow:

‘(1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.’

In addition to it, the clause 2A was also an insertion made by the Section 4(iii) of the Constitution (Eighteenth Amendment) Act, 2010. Now, the legal argument is that the said actions which were committed in 2007, when the provisions or amendments were never part of the Constitution, hence the prospective effect of the law will prevent the case at the very initial stage. Trying an individual retrospectively, that too in a criminal trial, is unconstitutional. Secondly, the trial is an antithesis of the notion of the rule of law. The Rule of law, interalia requires the law to be clear, precise, certain, requiring practically possible, prospective and non-retrospective.

Another key point is that the action of 1999 coup were never in question, rather it was the emergency that was held to be an act which held the constitution in abeyance. However, that too was misapplication of the law as the cause of action arose in 2007, and the law made it an offence in 2010. This case clearly falls within ambit of not giving fair trial, as per art. 10A of the Constitution, and retrospective application of law.

The same point is further substantiated through reference to Article 12 of the Constitution, which provides protection against retrospective punishment. It reads, interalia, as follow:

(1) No law shall authorize the punishment of a person-

(a) for an act or omission that was not punishable by law at the time of the act or omission; or

(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.

As a counter to this argument, reference can be made to Sub-Article 2 of the same Article which provides:

“(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence.”

However, it is important to mention here that putting the Constitution in abeyance is still not included in it, neither was it amended by the 2010’s 18^th Constitutional Amendment Act.

• The judgment is against the well settled principle of criminal law, that no trial can take place in absence of the accused. Unless the accused is present, the criminal trial cannot be proceeded, nor can an announcement of an order be made. Unlike a civil trial, where non-appearance of the respondent or defendant entitles the court to proceed exparte.

• Normal course of criminal law was to be followed, wherein the duty of the Prosecution was to prove the case beyond reasonable shadow of doubt. As per the dissenting opinion of Justice Nazar Akbar, this burden was not proved by the prosecution team. The burden cannot be shifted on the accused, in his absence, thus, the apex court’s judgments, and rules of justice are also violated in this judgment.

• When the accused is ready to submit his version of the case and considering that there is no concept of criminal trial in absentia, this judgment is not maintainable, and this is sole ground of remanding the case for re-trial.

• In any case, if there is a death penalty, wherein there is one dissenting opinion, such a penalty appears to be an unsafe conviction. When giving someone a death penalty or capital punishment, the rules of justice require that such a judgment be conceptually right. The doubts on the judgment appear from the dissent as well. Moreover, as a matter of practice, on appeal, such convictions get suspended at the very instant. Another point is that for filing of the appeal, the law requires the convicted to come to Pakistan, and present himself before the law. It is a separate debate as to the conspiracy theory that this judgment is a tool to compel Musharaf to come back to Pakistan, or whether his condition allow him to come back, and this will not be discussed in this discussion, as it is concerned with the law and not the politics.
•  This judgment is in complete violation of the principles of natural justice, fairness and equity. The principle, that no one should be condemned unheard, or “audi alteram partem” is completely violated.

• Justice should not only be done but also seen to be done. This is one of the few instances, wherein the prosecution, government, and accused himself is feeling injustice. So, this shows that such a judgment is an unjust one.

• The Constitutional provision regarding high treason require accomplices to be tried as well. In this case, neither any accomplice was added, nor any aider and abettor. This was the duty of the Court and the Prosecution to submit “challan” against all those who were part of alleged emergency of 2007.

• The better cause of action might have been 1999 Coup, rather than the 2007 Emergency.

• The judgment by the President of the Bench of the Special Court used the phrase of hanging the accused in D-Chowk, Islamabad, which was inhumane, illegal, unlawful, unconstitutional and ultravires. I will not go to the political debate or the conspiracy theory that it was added by the army or establishment, for getting public’s sympathy for the ex-Army chief. Or that this is not a judgment which could be expected from a judge who never gave such a judgment before. Whatever the reason may be, this discussion will not discuss those factors. Soon after the pronouncement of the judgment, now a reference has been filed in the Supreme Judicial Council against that judge. Now there are three possibilities, one is that the judgment of that judge will be considered out or nil and the decision will be of no majority rather will be evenly divided. Second possibility is that reference will be filed, and later on dismissed on the ground that one can agree, disagree, appeal, set aside the judgment, but cannot consider it sufficient for a reference to the Supreme Judicial Council. Thirdly, the judgment will be remanded back on appeal with direction to record evidence and hear arguments within a reasonable period.

• The accused in this case was in his late age, and for medical reasons is said to be in his death bed. So, can an infirm person, arguably on his death bed be sentenced for a death penalty? Moreover, capital punishment is disapproved of in most of the civil world as it goes against human rights, and in Pakistan it goes against Art. 9 of the Constitution of 1973 itself.

• Lastly, on the issue of sentencing, arguably the services of the Accused were remarkable for the State. For some, the accused was the leader of the military brigade which rescued Makah’s Bait ul Haram, from terrorist attack in 1970s. Secondly, the accused fought three wars for the nation. He served for more than 40 years in the Armed Services, wherein everyday opens the soldier to a risk of dying in the battle field or cross border firing. Therefore a lesser sentence might have been prudent.

In conclusion, what appears to be the case is that a very weak judgment was announced by the special court, which was against the law, constitution, justice and the rule of law. The legal norms were sacrificed, basic principles of law were never applied, and interests of accused were jeopardized. The possible outcome of the case is either an acquittal of the accused on appeal, or re-hearing of the case with a direction to record statement of the accused and also direction to add the accomplices and re-trial of all the accused. But, of what I am quite sure is that the August Apex Court will not be upholding the decision as it is prima facie against the well settled principles of law and justice. 

[1] 2013 SCMR 1683.

[2]  Section 4(ii) of the Constitution (Eighteenth Amendment) Act, 2010 (10 of 2010), inserted the said word after the word “abetting” in clause (2) of Art. 6, (w.e.f. April 19, 2010)