The petitioner requested the court to direct the federal government to prosecute Musharraf under the High Treason Act 1973 for suspending the Constitution and imposing emergency rule in 2007. PHOTO: AFP
On Friday, the Supreme Court formed a three-member bench, headed by Justice Chaudhry, to hear the petition against Musharraf who is also facing a barrage of legal cases, including the 2006 killing of Baloch chieftain Nawab Akbar Bugti and the 2007 assassination of former premier Benazir Bhutto.
Now, a two-member bench – comprising Justice Jawwad S Khawja and Justice Khilji Arif Hussain – will hear the petition filed by Advocate Taufiq Asif, the president of Rawalpindi chapter of the Lahore High Court Bar Association.
The petitioner requested the court to direct the federal government to prosecute Musharraf under the High Treason Act 1973 for suspending the Constitution and imposing emergency rule in 2007 – a move that had finally led to his downfall.
Nominating Musharraf and the federal government as respondents, the petitioner further said that “the federal government may be directed to take Pervez Musharraf into custody immediately awaiting his investigation and prosecution under the High Treason Act.”
The bench will also hear two other petitions filed by Maulvi Iqbal Haider and Barrister Amjad Malik. The first petition challenges the actions taken by Musharraf on November 3, 2007, while the second questions his candidature to run for elections.
Pervez Musharraf, who now leads his own political party – the All Pakistan Muslim League – returned to Pakistan on March 24 from four years in self-imposed exile to lead his party in the May 11 elections. He was upbeat about winning popular support – but his powerbase has shriveled since he left the country four years ago.
On October 12, 1999, then army chief Gen Pervez Musharraf had toppled the constitutionally elected government of Nawaz Sharif in a bloodless coup and imposed military rule. Later in 2007, he had declared emergency rule and sacked dozens of superior court judges, putting many of them, including Justice Chaudhry, under house arrest.
Experts believe as a head of the state, Musharraf was constitutionally empowered to impose emergency rule. “The president has the authority to impose emergency rule – but Musharraf could be tried for treason if the court declares his November 3, 2007 steps unconstitutional,” Advocate Ali Zafar told The Express Tribune.
However, he added that “misuse of authority [by the president] cannot be tantamount to high treason.” Citing the dismissal of Nawaz Shairf’s first government by then president Ghulam Ishaq Khan, Advocate Zafar said, “The court had held that the exercise of power by the president was erroneous.” He added that Musharraf could stand trial for treason if the court declares that he did not have the power to take such steps.
Under the High Treason Act 1973, only an official of the federal government can register the case. Advocate Zafar said the court might direct the federal government to file a high treason case against Musharraf. But the former general would have the right to defence, if the proceedings are initiated.
But Justice (retd) Tariq Mehmood says the Supreme Court has already declared the steps taken by Musharraf unconstitutional in its judgment of July 30, 2009 in the Sindh High Court Bar Association case. “The court has also declared him [Musharraf] usurper,” he added.
Justice Mehmood said Musharraf’s defence would depend on the nature of case [if filed by the federal government] and that he could name others in the case. “Musharraf can say that he had taken the steps on the advice of the then prime minister and others,” he added. “In such a scenario, the trial could linger on.”
Article 6 of the Constitution that deals with high treason says, “Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.”
Published in The Express Tribune, April 8th, 2013.
COMMENTS (25)
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I have seen Military dictatorships and Civilian dictatorships in Pakistan. Most took Pakistan backwards except ex-Pres Musharraf’s dictatorship which much more good for Pakistan than bad. He did make a few mistakes because he listened to bad advice from civilians. His dictatorship boosted economy, brought empowerment to Women, Education for All under the Article 25A of the Constitution and most of all voice to the Media. He took more unselfish democratic steps than anyone in the past.
Just remember that there may be 10s of 1000s in Pakistan that have crimes requiring hanging. These people have evaded justice only due to their money, high position, connections combined with absence of empowered and honest judiciary and law enforcement.
@Zahid Bahri: Supreme Court is the final arbiter of the Constitution and it gave Musharraf 2 years when he overthrew Nawaz Sharif, they should have considered Article 6 then and must not apply it retrospectively now overruling their own decisions. Musharraf's rule was far better than the PPP's 5 years at the helm. He was more open and visible to media, straight forward and open minded to all political spectrums. PPP leadership never attended even a single suicide bombing victim or have said a single word of sympathy to them. PIA, Railways, Steel Mill and all government managed institutions were filled with PPP allied job seekers and thus, ruining them all. The works of politcal power in Pakistan had never followed the book before and will never follow in the near future.
Musharraf is the best leader Pakistan ever had. He is the most talented, honest and patriotic among the present slot. Allah may keep him safe from all evils.
@Akbar: Hope that every word of yours is true. This nation deserves much batter. We are loosing precious lives in tirah valley and a firacoius war is going on on our borders with Afghanistan. A clandestine war with USA/India/Israel/Russia is going on and they are targeting Pakistan. Looking at Libya and Syria one should realize what a great job our army is doing. I hope our army brings this nation on right track. Having said that time is essence here, we dont have more time of stupidity here.
Mushraff is the man. I wonder what happened to the case of CJ's son? It is political stunt to fool people of Pakistan.
Musharraf is a great patriotic person who rescued country from several crisis. He has been enjoying a comfortable life abroad but its only the feeling of pain for Pakistan that made him return and try to the maximum extent if he could do anything for the country. God bless him and offer him help in achieving his objectives.
It is this mindset of gen Mirza and his ilk that has brought Pakistan to such a sorry state of lawlessness. If similar is the mindset of the soldier on the border then we've already lost our battles before a fight. Generals are urged to stop cashing on soldier's sacrifices and do their duty instead of subverting the law of the land.
And if the trial goes through, the jawans will know that even their star carrying superiors can be held accountable for their deeds, which usually lead to the loss of life of jawans, more than any other segment of the Army.
@Nadir: no one should be considered above the law..be it a soldier, a general or a normal civilian, because if a general can get away with a crime the ordinary citizen will be demoralized and thats the worst thing that can happen to a nation
Musharraf did best for his country, you can not doubt his patriotism and good thoughts for Pakistan. You also needs to keep in mind that Musharraf served the army for years and fought 2 wars. Musharraf is an extra ordinary Pakistani. He has ruled Pakistan for 9 years and never ever got any allegation of corruption or mismanagement. He has international standing and respected all over the world.
Don't make us fool in locally and internationally by convicting Musharraf.
His stepping down alone is not enough; the other two are his trusted henchmen; one more needs to go and two fresh one added.
@Nadir: Tell me why a General is being brought before the courts in the first place? He took over from a democratically elected government and committed treason. Do you know what happens to a general who takes over the government in any Western country and rules as a dictator ? If anything, the jawans will be more motivated if they know that they are part of a professional army and not just one that wants to play politics and take over civilians with guns.
Sorry for my Bhaijan Musharraf to return to Pakistan to dole out heavily to lawyers to defend him in different courts on different counts and who knows where will he land-parliament or prison. He was earning more than Bill Clinton by lecturing and there was no prudence to return. My prayers for you Bhaijan. Incidentally I am not his relative but I am born in Dec 1943 while he is born in Aug 1943 so he is elder to me. We both are Urdu speaking. Iqbal Hadi Zaidi / Kuwait / iqbalhadizaidi.formerdiplomat@hotmail.com
This will be the first time in the history of Pakistan that an Ex-Army General and that too Ex-Chief of the Army Staff will be tried in the Supreme Court of Pakistan for high treason charge.
@Nadir: that's a contrived argument. Generals have stood trials in many other countries most recently Turkey. They have supremacy of their law. What you're advocating is that one should not be held responsible for their actions? If they've subverted the constitution they should be held responsible. PM Gillani faced his trial whilst in office why shouldn't this retired General? Is its not right that only politicians are held accountable, Musharraf should be held account too. Same with a doctor who is held accountable for malpractice. Or a lawyer, like Babar Awan who lost his license to practice law. Why shouldn't a General stand trial if he has subverted the constitution like the above mentioned examples?
Musharraf is about to create a history. He is blessed. He will not only appear and clear his name from all politically motivated cases but will also prove his credentials by winning from Chitral. In the next 12 months Musharraf will be working on building his party on the groung. The next elections are bound to happen in 2014 / 2015 by that time PML N will deliver another disaster performance. PPP and PML N will become much smaller parties by 2015 elections. The future is going to be two party system one led by Imran Khan the other led by Musharraf. Time will tell as he is very tight lipped on his plans and he being a General and a Statesman couldn't have just come back just to face courts. There is a bigger prize which he is looking at.
Please read the Article 6. High treason 6. High treason.—1[(1) Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.]
(2) Any person aiding or abetting 2[or collaborating] the acts mentioned in clause (1) shall likewise be guilty of high treason.
3[(2A) An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and a High Court.]
(3) 4[Majlis-e-Shoora (Parliament)] shall by law provide for the punishment of persons found guilty of high treason. http://pakistanconstitutionlaw.com/article-6-high-treason/
I think everyone is forgetting that the Supreme Court gave 2 years to General Musharraf when he took control of the country. Supreme Court cannot retrospectively change its own decisions under a new political environment. Musharraf did manage to conduct elections and installed a civilian government. PML-Q was the majority party in Punjab and Sindh and formed government while Islamic parties formed government in NWFP and Balochistan. Please everyone jog your memories. PML-Q continued in government in alliance with PPP later after post Musharraf era too. Nawaz Sharif and Shahbaz Sharif should also be tried for high treason for stopping a sitting Chief of Armed Forces from returning to his homeland after a diplomatic trip to Sri Lanka. They both attacked Supreme Court, dismissed a Chief Justice and a previous COAS. This trial will open a pandoras box which will ultimately engulf PML-N's leadership and Supreme Court itself.
@Nadir, that is supreme level of blackmailing.
I although agree that the charges against Musharraf are politically motivated but the only way to overcome those is by facing the court!
Justice must be like death which spares none...This is the Key to Success of a nation.
This trial of high treason will open a Pandora's box and lot of people including the judiciary, parliamentarians, generals all will be involved in it. It will linger for a long time costing money to the treasury. In this society nobody is clean. The best option is for the parliamentarians to work for the betterment of the people who vote them. So the army does not be pressurise to take over The businessman who are also in the parliament should quit looking after their business or quit being a member of the parliament. I am sure Imran Khan will bring a motion on this.
The country should stand by their armed forces and not being their enemy. Indians are so happy by the Pakistanis played down their army. I don't think we should make them happy. If you look close Gen Musharraf was in the air at the time of coup so I don't think how they going to prove him he is responsible. Musharraf's opponent think that they will take their revenge then it is their dream only.
For taking up arms against the Islamic Republic, Mushy must be stripped of Rank, denied pension plans, denied all other gifts that the Republic gives as reward for LOYAL service. In law he is a candidate for Capital Punishment.
As General Mirza Aslam Baig said, if any General is brought before the court and convicted like an ordinary civilian, jawans fighting on the border will get demotivated. I hope patriotic judges take notice!