Justice Akbar’s Dissenting Note Says ‘High Treason’ Not Properly Defined In Musharraf Case
The detailed judgement of the Musharraf treason case was released today and has been the center of discussion because of the controversial punishment that it has awarded to the former president.
According to the judgement, if Musharraf dies before being punished, his body should be dragged and then hanged at D-Chowk in Islamabad for three days. This, as per the judgement, is the punishment for high treason.
Meanwhile, Justice Nazar Akbar dissented from his colleagues and argued that Musharraf should not be punished at all for three main reasons.
1- ‘High Treason’ Not Properly Defined
For Justice Akbar, the fundamental issue with the case lies in the definition of ‘high treason’ as per Article 6 of the constitution. He says that high treason has not been defined properly in the ambit of this case. The only place it has been defined is in an interpretation of the constitution by Justice Muhammad Munir who argues that ‘high treason’ amounts of the abrogation or subversion of the constitution, not its abeyance or suspension. This fundamentally means that the 2007 Emergency and PCO order do not fall under the ambit of ‘high treason’.
He also argues that when emergency rule was announced the rights of parties to contest elections were not taken away as well which means that constitution was not abrogated or subverted.
2- Retrospective Application of Treason’s Definition
He then looks at the 18th amendment where the parliament has defined what ‘high treason’ is but the judge questions the idea of the ‘retrospective’ application of this definition. According to him the application of these definitions in retrospect does not make sense, especially if we take into account the situation then when the parliament continued to function and chose to accept the PCO and Emergency rule instead of speaking up against it.
3- Aiders and Abettors’s Exclusion From Trial Due To Prosecution’s Failure
Lastly, the judge argues that the ‘burden of proof’ lied on the prosecution to show that Musharraf was the only one responsible for the PCO and Emergency rule. This means that the prosecution had to prove that Musharraf was not aided and abetted by individuals and the system in order for him to be the sole receiver of the sentence. The Judge mentioned people like former Prime Minister Shaukat Aziz and said that they played a part in helping Musharraf and should have also been brought into the ambit of the case. For him, the prosecution failed to establish Musharraf as the sole person responsible.
Both the other judges on the panel supported the retrospective application of the definition of high treason and the death penalty for the accused.