The interior minister says the government will try former president Pervez Musharraf for abrogating the Constitution on November 3, 2007, but the decision to go to the Supreme Court on the matter is technically a superfluous move.
Legally, high courts are the right forum for initiating a case under Article 6. Therefore, even if and when the government writes to the apex court, the process will not have technically begun. Why the government decided to take this route has different interpretations from legal experts. While explaining the procedure, Babar Sattar, a lawyer and legal commentator, told The Express Tribune that the interior secretary has to file the prosecution before a three-member special bench of high courts, after approval from each chief justice for the inclusion of their judges on the bench. He said the government’s decision to go to Supreme Court is just a formality.
“It’s a little tricky and the government wants to get blessings of the Supreme Court that it has nothing against the judges and does not want to act against them,” Sattar added. “They want to give the military a message that they do not want revenge and they want to give the judiciary a message that this is not a conspiracy but they still want to prosecute Musharraf.”
Constitutional expert and former law minister SM Zafar said: “This is something beyond my comprehension.”
The Supreme Court has nothing to do with this case, he said, as a three-judge special bench comprising high court judges are supposed to try Musharraf. The Supreme Court is the forum where an appeal against the special bench would come finally, he explained. “Moving the SC to try Musharraf would be a blunder on the part of the government.”
Responding to a question, he said the government has yet to announce the procedure for the trial. “I don’t see seriousness but intent to divert attention [from the recent ethnic clashes in Rawalpindi],” he added.
Justice (retd) Tariq Mehmood was equally puzzled by the decision of moving the Supreme Court. “Involving the chief justice of Pakistan in this case is a legal mistake the government has committed,” he said.
“I fail to understand why the chief justice is being involved in this case,” Mehmood said while referring to the November 2007 emergency in which Justice Iftikhar Muhammad Chaudhry himself had been affected. “There is a conflict of interest and a possibility that the chief justice would recuse himself,” he added.
Pointing to another technicality, SM Zafar said: “It is an announcement by the interior minister. It’ll become a government decision when the federal cabinet decides to prosecute Musharraf. And I’ve not heard of any cabinet meeting over this issue.”
Now, there are also questions regarding why the government wants to try Musharraf for the November 3 Emergency, and not the October 1999 coup.
Sattar said that “The Constitution has been violated in both cases and it is prosecution’s prerogative to decide.”
“I think from a political perspective it is savvy what they [government] are doing. It’s savvy because the matter of 1999 dealt with Prime Minister Nawaz Sharif directly and if they decide to prosecute Musharraf for 1999 that would come across to the military as an institution as revenge. That is not what they [government] want,” he added.
SM Zafar concurred. He said both cases – the October 1999 coup and the November 2007 emergency – are equally serious in nature as the Constitution was violated on both occasions.
Justice (Retd) Tariq Mehmood agreed to a certain extent. “It is the government’s prerogative to either try Musharraf for Oct 1999 or Nov 2007. It cannot be termed wrong on legal grounds though it could be wrong politically,” he added.
Still he agreed that in 1999 a government was toppled, judges were asked to take fresh oath under the PCO and parliament was dissolved, therefore, this matter is more serious in nature.
Published in The Express Tribune, November 18th, 2013.