Musharraf High Treason Case: The Judge May Have Revealed His Bias In Paragraph 66
Syeda Bakhtawar Jaffri argues that paragraph 66 of the detailed judgment in General Musharraf’s high treason case proves the bias of the judge against the former president and therefore there must be a judicial review of the case.
The verdict on the case of retired General and the ex-president Pervez Musharraf, has raised a storm in different circles of the country. He was convicted of unconstitutional proclamation of emergency, issuance of the unconstitutional order enabling the president to amend the constitution of Islamic Republic of Pakistan and suspension of the fundamental rights of the citizens of Pakistan, issuance of order for the oath of the judges, unconstitutional amendment of the constitution, and issuance of the order no.6 of 2007. All these charges come under the ambit of the offence of high treason defined under Article 6 of the constitution of Pakistan.
The detailed judgment comprises of 68 pages, but unfortunately, it has failed to provide the sound legal grounds for the conviction. The act of high treason is defined by article 6 of the Constitution of Pakistan and the procedure for trial is given under the High Treason Act, 1973.
The article states, “any person who abrogates, or subverts or suspends, or holds in abeyance, or attempts or conspires to abrogate, or subverts, or suspends or suspend or hold in abeyance, the constitution by other unconstitutional means shall be guilty of treason”. Clause 2 [A] was added to the article 6 through the 18th amendment in 2010, which states that the act of high treason shall not be validated by any court including the high court or the supreme court. The application of this clause in the judgment for an act done in 2007, gives a retrospective effect to the said clause and is against the fundamental rights provided under chapter 2 of the constitution of Pakistan 1973.
The issues framed in the case were to find out the commission of the offence, along with the guilty intention and absence of the justifiable circumstances for the commission of the high treason. The defense pleaded the commission of the act, but the absence of the guilty intention and presence of the reasonable circumstances to do so was also asserted. Here the doctrine of necessity was invoked. The doctrine of necessity was first applied in Pakistan by Justice Munir, in Mulvi Tameez uddin case in1954. This infamous doctrine had validated the dissolution of first constituent assembly of Pakistan and legalized the judicial murder of ex-President Zulfiqar Ali Bhutto. It has played a leading role in the constitutional history of Pakistan. But, the verdict on the Musharraf case has failed to give appropriate legal grounds for rejecting the plea of the doctrine of necessity.
It also relied on the definition of “High Treason” from the oxford dictionary for interpretation of the offence; in the presence of constitutional definition and legal dictionaries. It is against the rules of interpretation to look into the general dictionaries in the presence of the legal definition and the law dictionaries. However, Para 62 and 63 of the judgment seemed rational as they explained the alternate judicial manners, which were available, for the handling of the situation that led to the alleged offence of high treason, in 2007.
It is the para 66 which has attracted the attention of the masses. It demanded the hanging of the corpse of the convict in D-chowk for three days if found dead before being hanged. Hanging a corpse in public for three days is not only against human rights but also against the penal laws of the state. It is a grave violation of the right to dignity, provided under the constitution. Moreover, it is showing the bias of the judiciary and a prima facie mockery of the whole judicial system. Everyone wants the rule of law but rule of law demands justice. If the canons of justice are not followed, this would amount to one more judicial murder.
The contradictory judgments on the application of the doctrine of necessity, by the courts in Pakistan, are undermining the whole judicial system. Constitution of a state is the supreme law of the land and disregard of the constitution should also be dealt with in accordance with the constitution.
There should be a judicial review of the case. The expression of such hatred and animosity by the judiciary would do no service to the already fragile state of institutional balance in the country.
The author is a Criminal lawyer, based in Gujrat. LL.B gold medallist from University of Gujrat, LL.M international law from international Islamic University, advocate high court, president Street Law Clinic society, legal researcher and Max Planck Alumnus.