FeaturedNationalVOLUME 15 ISSUE # 10

Judicial fireworks

A special court’s order to hang former President General (retd) Pervez Musharraf on five counts in a high treason case has raised many questions about the fairness of the trial. It also created tensions among national institutions besides maligning the image of the country abroad.

If Pervez Musharraf was found guilty of abrogating the Constitution, what about the judges, who had validated his takeover and even allowed him to amend the Constitution without requiring a two-thirds majority, as required under the law? If his action amounted to treason, are many top politicians patriot, who looted national wealth mercilessly and stashed it abroad? The case was heard in Pervez Musharraf’s absence and a verdict was announced in haste. But the law was not applied to former Prime Minister Nawaz Sharif’s sons, Hassan and Hussain Nawaz, and former Finance Minister Ishaq Dar, as their cases have been pending in courts because they are absconding abroad. It is also a fact that Musharraf is seriously ill and can’t return to Pakistan. The trial could have been halted the trial in the situation but it acted in undue haste and announced its verdict, which is not against Pakistani and international laws, but also against Islamic injunctions.

In a strongly-worded judgment, the special court head, Peshawar High Court (PHC) Chief Justice Waqar Ahmed Seth, ordered in its paragraph 66: “We direct the Law Enforcement Agencies to strive their level best to apprehend the fugitive/convict and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk, Islamabad, and be hanged for three days.” However, it was a minority view as two other judges did not agree to it. Justice Shahid Karim of the Lahore High Court (LHC) upheld the death sentence awarded by Justice Seth but did not agree to the dragging of the corpse. The third judge, Justice Nazar Akbar of the Sindh High Court (SHC), opposed the majority verdict at all on the grounds that there was no constitutional definition for high treason.

Countrywide protests erupted against the verdict. As expected, the court order also angered the army and the government. Military spokesman Maj Gen Asif Ghafoor, while referring to certain parts of the verdict during a hurriedly-called media briefing, vowed to thwart the “enemy design” and defend the institutional dignity. “Today’s verdict, especially the words used in it, is against humanity, religion, culture and our values,” he said, adding that the army’s response plan to the threat was also in place. Without elaborating the institutional response to the sinister “design,” he said that conspiracies of “anti-state elements” both “internal and external” would be foiled. The army believes the judgment is not against its former boss but also against the institution. Earlier, the army had expressed its concern after the announcement of a short order in the case and said Musharraf was not getting the due process and being denied fundamental rights.

The government has decided to approach the Supreme Judicial Council for the removal of Justice Seth on the grounds that he is “unfit” to be a judge. It also announced filing an appeal against the verdict in the Supreme Court. Law Minister Naseem Farogh termed the verdict “unprecedented and despicable and an attempt to take Pakistan into dark ages.” The controversial paragraph 66 was widely criticised by the lawyer community as well as members of civil society. Attorney General Anwar Mansoor Khan said the verdict was “unconstitutional, unethical, inhuman, and was given by an individual whose sanity is questionable”.

It is for the first time in Pakistan’s history that a former army chief was found guilty of high treason. Critics question why Musharraf was singled out for abrogating the Constitution and other military rulers were spared? They say action should also be taken against them and their abettors, who are still alive.

Analysts say the verdict is an attack of an institution on another institution at a time when there is tension on the Pakistan-India border. The verdict is nothing short of a judicial bombshell, as it is impossible to enforce it and it will only create rifts among national institutions. How a court can order the corpse of a convict, who has died before his execution, to be dragged to a public square and hang up for three days? The tone of the verdict smells of a personal vendetta against the former military ruler. The harsh language of the judgment also violates international, Pakistani and Islamic laws.

The special court, in its verdict against Musharraf, has ordered the government to initiate high treason proceedings against the then corps commanders and those who abetted the imposition of emergency and lamented that “unfortunately the cronies of the accused has been left free till date”. The court ordered action against all “those involved in facilitation of the escape of the fugitive accused.”

The court order is impossible to implement. Musharraf could not be arrested when he was in Pakistan. He could not be arrested if he returns to Pakistan. He is seriously ill, otherwise he would have returned to Pakistan. The verdict has only created tensions among national institutions. It sent a wrong message to all officers and soldiers, who served under Musharraf’s command. They cannot believe he could be a traitor. He is certainly a patriot and honest person. It was unfair to try him in the high treason case. The court could have ordered his hanging for abrogating the Constitution but it is unfair to try him for high treason. People say treason cases should also be registered against politicians who looted national wealth and harmed the country.