Pakistan: Playing with Fire

By Humayun Gauhar

Former Attorney General of Pakistan Irfan Qadir was prompted to write to me after my last article, ‘Dictator-Dacoits in Democrat’s Clothing’. I feel compelled to share his letter with you as he has so eloquently explained the problematic legal issues in the treason case against General Pervez Musharraf with great reason and clarity.

“My compliments to you for your excellent article on General Musharraf’s so-called treason case. Legally speaking I may say that this case has put the entire superior judiciary on trial since it is most likely to expose the real face of these judges. In my opinion we do not have a legally and validly constituted superior judiciary in the country today and I have candidly conveyed this telephonically in a recent TV talk show. I therefore strongly feel that General Musharraf should be advised by his team of legal experts in writing on the basis of reasons contained herein below not to appear before the Special Court. The so-called three-judge Special Court is illegal and unconstitutional for the following reasons:

“First: These judges are not duly appointed. All persons functioning as judges in the aftermath of the 31st of July 2009 judgment rendered in the Sindh High Court Bar Association’s case reported as PLD 2009SC879 are fake judges, because the 31st July 2009 judgment is void ab-initio. It is a matter of record that the Pakistan Bar Council, Supreme Court Bar Association of Pakistan and Lahore High Court Bar Association have expressed serious reservations as regards the legality and correctness of this judgment by means of resolutions passed from time-to-time. The reference filed by Justice Yasmin Abbasey inclusive of a plethora of views of legal experts such as myself, Justice Markanday Katju and others of repute also raise serious questions about the legitimacy of this judgment. The judgment of 31st July 2009, apart from being void ab-initio, is based on double standards and is a serious violation of the principles of natural justice, good conscience and fair play. The reasons for this are many but for the time being I may mention a few e.g. discriminatory treatment was meted out to the majority of judges at the hands of a minority of their brother judges who were 14 in number as a result whereof almost the entire judiciary was wiped out and those who survived this onslaught had to face contempt of court proceedings. The judges who had to face contempt of court proceedings were made dysfunctional in violation of the constitution. The judges who were in a minority became judges in their own cause and condemned a very large number of judges who were in the majority without hearing them or even issuing them any notice to present their viewpoint on the issue in question. They even held that the ousted judges have no right to file a review or an appeal against the decision in question. It goes without saying that even a terrorist, a brutal murderer or a rapist has the right to defend his cause and the further right to challenge an unfavourable verdict in appeal or review. There is no provision in the constitution under which a sitting judge can be hampered from performing his judicial functions. Over 100 judges appointed by a constitutionally and democratically elected President of Pakistan had been removed by a small minority of 14 judges who themselves were appointed as judges of the superior judiciary under a Provisional Constitution Order issued in the year 2000 by the Chief of the Army staff General Pervez Musharraf who has been dubbed a ‘usurper’ by the beneficiaries of the said PCO viz. the above referred 14 judges.

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“In a nutshell the judgment of 31st of July 2009 has all the attributes of a void decision, which is not only unconstitutional but also unprincipled and against the most basic notions of rule of law. I hardly know of any such decision in the judicial history of this planet where a few judges could sack almost the entire superior judiciary and that too in violation of the most fundamental of rights viz. the right of hearing and/or the right of appeal. Needless to mention that right to fair trial is an inalienable and most fundamental right available to every citizen of Pakistan under the constitution.

“The mess created by the aforesaid judgment has resulted in serious violations of the Universal Declaration of Human Rights and as a sequel to that the country’s legal order remains chaotic.

“As such, instead of trying General Musharraf, the aforesaid judgment of 31st of July 2009 needs revisiting in the interest of justice and for the purpose of ensuring strict adherence to the rule of law in our country.

“Second: If we adopt the reasoning of the 31st July 2009 judgment, then the judges of the Special Court shall appear to be partisan if they are not enabled by the government to first proceed with the treason committed by Iftikhar Chaudhry and his co-accused fellow judges of the Supreme Court since these judges overthrew almost the entire superior judiciary of Pakistan by removing a much greater number of judges in violation of Article 209 of the constitution, than General Musharraf did.

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“Third: On the 3rd of November 2007, judges were rightly removed through PCO in view of the dictum laid down in Z. A. Shah’s case reported as PLD 2000SC869. Additionally, the 3rd November 2007 interim order attributed to the Supreme Court was a fake for multiple reasons. Even if, for the sake of argument, the 3rd November order was not a fake, it was directly violative of Z. A. Shah’s case and was devoid of legal sanctity.

“Fourth: Even otherwise the illegal or unconstitutional removal of judges by the PCO of 3rd November 2007 in itself would not amount to subverting or overthrowing the constitution.

“Anybody appearing before the aforesaid Special Court would be guilty of violating Article 5(2) of the constitution.

“General Musharraf should be advised not to appear before the said Special Court by his legal team. In case the Special Court insists on his appearance, the entire legal team would be well within its lawful right to boycott the proceedings after mentioning the above reasons to the Special Court and the media.

“Security or health issues may be important but these should not be the main reasons for remaining away from the proceedings of the Special Court.”

I would add that some jurists are of the opinion that one judge on the Special Court bench was never confirmed by the Parliamentary Committee and court decisions regarding his appointment were on seemingly contrived petitions and were even otherwise in grossest violation of the constitution because judges alone cannot appoint judges through court decisions in terms of the letter and spirit of Article 175-A.

To my understanding Irfan Qadir is saying that the Supreme Court order of July 31, 2009 to start the trial doesn’t stand, so the entire case becomes facetious. It also reveals the court’s bias and gives the distinct impression that the Supreme Court’s mind is already made that Musharraf is guilty and should be convicted without the presumption of innocence or trial. It has hamstrung the Special Court.

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My own understanding is that only the federal government can initiate a treason trial under Article 6 of the constitution after a decision of the cabinet and not by an ‘order’ of the Supreme Court because it is not in the jurisdiction of the Supreme Court to ‘order’ the federal government to do so. And if the accused is found guilty parliament decides his or her punishment and not any court. The treason trial essentially rests on the illegal July 31, 2009 order of the Supreme Court, which eventually became the basis of its recent order to the federal government to institute and initiate a treason trial against General Musharraf, which is not within its purview.

The current Supreme Court, no longer headed by Iftikhar Chaudhry but a sober and educated chief justice, should throw out the July 31, 2007 judgment so that we can get on with saving Pakistan.

I am more worried for Nawaz Sharif and his government than for Pervez Musharraf. If the Supreme Court were to throw out the July 31, 2009 judgment the entire treason case against Musharraf would collapse and Nawaz Sharif would be off the hook and the government could try to achieve some stability that is so needed by America for an orderly drawdown of NATO troops this year. Legally speaking, however, if Sharif wishes to put his hand back into the fire that threatens to become a conflagration, there is nothing to stop him from following this known proclivity for self-destruction. He must think it through carefully for it is for the government in cabinet to decide whether or not to try Musharraf, keeping in view, of course, the political ramifications, repercussions and public interest. If government decides to go ahead with such a trial then the proper course would be to try Musharraf from October 12, 1999 along with all his aiders and abettors in the army action and for the November 3, 2007 emergency as well – along with all aiders and abettors. The first person to be then called will be Prime Minister Nawaz Sharif for creating such conditions on October 12, 1999 that forced the army to intervene to prevent its chief from being handed over to India, a treacherous attempt that mercifully failed, and saving the federation and its constitution.