- The Musharraf case raised several issues
The doctrine of necessity refuses to go away. It is something of an extraconstitutional anomaly which acts as a panacea for a whole host of unconstitutional acts and illegalities. Wherever logic fails, this doctrine comes to the fore. It gives legitimacy to unconstitutional acts, allowing the judiciary to compromise with the deep state in order to surrender institutional independence.
Chief Justice Muhammad Munir sowed the seeds of this notorious doctrine in the Molvi Tameez-ud-Din case. Now it has taken deep root in the judicial consciousness. Every once in a while, an effort is made to uproot it. However, it refuses to give way to the rule of law and constitution. When Mr Justice Waqar Ahmed Seth and Mr Justice Shahid Karim, two of the three judges of the Special Court established under the Criminal Law Amendment (Special Court) Act read with Article 6 of the Constitution and the High Treason (Punishment) Act, 1976, returned a guilty verdict of Pervaiz Musharraf, it was thought in some legal circles that the door to a coup d’état was slammed shut. A robust reaction was witnessed: paragraph 66 of the judgment delivered by Mr Justice Seth became the proverbial punching bag. It was blown out of proportion so as to take the sting out of the rest of the 65 paragraphs. Quite recently, the Federal Government has filed the reference against him before Supreme Judicial Council, which has been vigorously condemned by the Pakistan Bar Council.
There are mainly three arguments put forward by Musharraf apologists. The first is that since Cabinet approval was not sought by the then Prime Minister, Mian Nawaz Sharif, the formation of the Special Court was unconstitutional in view of the Mustafa Impex case (PLD 2016 SC 808). The fallacy in is self-evident. If taken to a logical conclusion, every decision made by Nawaz Sharif as PM would stand vitiated. It is well-settled law that superior court judgments are to be applied prospectively and on the pending matters or cases, not retrospectively. The Mustafa Impex decision was made in 2016, while the Supreme Court accepted the Sharif government’s request to set up a Special Court for Musharraf on 18 November 2013.
It is simply baffling that where there was an appeal provided, how the Lahore High Court could entertain, hear and adjudicate upon the petition. Now that a petition has been filed in the Supreme Court against this decision, one earnestly hopes that the Supreme Court would hold aloft the rule of law
The second argument is that since “hold in abeyance” were inserted in 2010 by the 18th Amendment, Musharraf could not be held guilty retrospectively in view of Article 12. Those making this deceptive argument don’t read Clause 2 of Article 12. This clause explicitly gives a retrospective effect to the constitutional offence committed under Article 6 either by abrogation or by subversion. Mr Justice Shahid Karim in his erudite and elaborative judgment, shines a light on it in para 50. This clause carves out an exception to the right against retroactive punishment. The reason is not far to seek: abrogation, subversion or suspension of Constitution is an offence under the Constitution, and those committing it cannot be allowed to go scot-free even though it is applied ex post facto. Further, he held that while designing this provision, the framers might have Oliver Cromwell’s example at the back of their minds. Needless to emphasize that the five charges that were made against Musharraf centre on “subversion of the Constitution”. And both judges held him guilty.
The third argument is that Musharraf was not afforded the guarantee of due process enshrined in Article 10-A, as his trial was held in absentia. This argument would have been tenable, had he not been present in court at the time of framing of charge. The charge was read over to him on 18 February 2014, as is evident from a perusal of paragraph 13 of the judgment authored by Mr Justice Seth. And he pleaded not guilty on all five counts, manifesting his desire to stand trial. Even otherwise, his counsel, Farogh Naseem, the law minister, cross-examined the witnesses for days on end. Further, the verdict was announced after six years. Now he cannot turn around and invoke Articles 10 & 10-A, not least when the verdict was given after holding a full trial. In a word, the requirements of due process, such as an opportunity to produce evidence, to cross-examine, to be represented by a counsel were fully satisfied. Even otherwise, the Supreme Courtdirected the Special Court to go ahead with the trial in his absence in view of Section 9 of the Criminal Law Amendment (Special Court) Act, 1976 and judgments regarding an absconder. It was further held that it would not offend against Article 10-A of the Constitution, as the trial could not be left to the mercy and sweet will of the accused.
The moment the Special Court delivered the judgment, convicting Musharraf of high treason and sentencing him to death, it became functus officio. It stood disbanded and became defunct. In other words, the proverbial Rubicon was crossed. There was no going back. The convicted Musharraf had had only one legal remedy, that is, to prefer an appeal before the Supreme Court. In the wake of this verdict, the petition under Article 199 of the Constitution challenging the formation of Special Court pending adjudication before the Lahore High Court was rendered infructuous for all intents and purposes. The LHC should have stayed its hands and not assumed the jurisdiction to proceed with the matter. But it was not to be. It turns out to be the classical case of putting the cart before the horse. It begs the question, can the High Court sit in judgment over the orders of the Supreme Court? The answer is obviously a negative one. The Supreme Court settled all the subtle legal questions facing the Special Court in various orders challenged before it.
All said and done, the Lahore High Court judgment will leave the jurisprudence in tatters and turn the settled law on its head to provide Musharraf the speediest justice. Musharraf’s counsel adopted a circuitous route to overturn his conviction and declare the formation of Special Court ultra vires the Constitution. Even otherwise, it is a well-entrenched law that the appeal is a continuation of the trial and all the factual and legal controversies reopen in it. However, Musharraf’s counsel bypassed it. It is simply baffling that where there was an appeal provided, how the Lahore High Court could entertain, hear and adjudicate upon the petition. Now that a petition has been filed in the Supreme Court against this decision, one earnestly hopes that the Supreme Court would hold aloft the rule of law.
