Legal experts are divided on whether only Musharraf should be tried. PHOTO: FILE
The process for the first treason trial of its kind in Pakistan took a giant leap on Tuesday when a three-judge special court was constituted to prosecute former military ruler Pervez Musharraf under Article 6 of the Constitution.
The development came hours after Chief Justice Iftikhar Muhammad Chaudhry forwarded the names of five judges he received from the chief justices of the high courts.
Justice Faisal Arab of the Sindh High Court (SHC) will head the special court which will include Justice Syeda Tahira Safdar of the Balochistan High Court (BHC) and Justice Yawar Ali of the Lahore High Court (LHC) as its members. The two judges dropped from the list were Justice Yahya Afridi of the Peshawar High Court (PHC) and Justice Noorul Haq Qureshi of the Islamabad High Court (IHC).
The names were proposed by the chief justices of the five high courts of the country a day after Chief Justice Iftikhar Muhammad Chaudhry directed them to put forward the names of any judges eligible for the special court by Wednesday.
On Tuesday, the top court sent a letter to the federal interior secretary asking the government to pick three judges out of the five and also appoint the head of the trial court on the basis of seniority.
Initially, Interior Secretary Barrister Zafarullah Khan said that it was not necessary to refer the matter to the prime minister for approval. However, it was Nawaz Sharif who approved the final names. According to a statement issued from the Prime Minister’s Office, the judges were selected on the basis of seniority.
Interestingly, in its letter to the Supreme Court, the interior ministry had said on Monday that since there are five high courts in the country, it would be difficult for the government to nominate three judges for the special court.
“It is, therefore, requested that the instant matter may please be placed before the chief justice of Pakistan for the nomination of three judges from high courts. It is also requested that out of three judges, one may be nominated to be the president of the special court,” the letter stated.
According to the procedure, once the special court is set up, the interior secretary will file a complaint against Musharraf. The government has already appointed Zulfiqar Abbas Naqvi as prosecutor who will present evidence against the former army chief.
What legal experts say
Constitutional law experts have questioned the modus operandi adopted by the government for trying Musharraf for treason. “The government’s move to approach the Supreme Court for the establishment of the special court was illegal,” says former law minister Khalid Ranjha.
Abdul Hafeez Pirzada, one of the architects of the 1973 Constitution, concurs. “Since the treason trial has no precedence [in Pakistan’s judicial history], the government is confused,” he told The Express Tribune. “It’s clearly mentioned in Article 6 of the Constitution that it will be implementable from March 23, 1956,” he added, hinting that if the government invokes Article 6, it has to be invoked in retrospect.
Another legal guru, however, disagrees. “Musharraf cannot be tried for treason because the 18th constitutional amendment has done away with the condition of Article 6 being applicable in retrospect,” senior lawyer S M Zafar told The Express Tribune. “Musharraf never abrogated the Constitution, he just suspended it or held it in abeyance.”
Malik Muhammad Qayyum, who was the attorney general of Pakistan when Musharraf imposed emergency rule in 2007, refused to comment on the issue. He has been quizzed by investigators in the case.
Legal experts are also divided on whether only Musharraf should be tried or his accomplices should also be made part of this unprecedented case. A senior lawyers’ leader said that dragging other people into the case would politicise it and it would not be possible for the judges sacked during the 2007 emergency to adjudicate the case impartially.
In its July 31, 2009 verdict the Supreme Court had declared Musharraf’s November 3, 2007 steps ultra constitutional (illegal) which could be cited as the prime evidence against him. However, the Supreme Court will be the final court of appeal in this case that means if the trial court announces a decision it can be challenged in the Supreme Court.
Justice Syeda Tahira Safdar
Born in Quetta in 1957, Balochistan’s first female judge, Justice Safdar, attended the Cantonment Public School and went on to complete her Bachelor’s degree from the Government Girls College in Quetta.
After finishing her Masters in Urdu Literature from the University of Balochistan, she studied Law in 1980 at the University Law College in Quetta.
The daughter of lawyer Syed Imtiaz Hussain Baqri Hanafi, Justice Safdar started her career as the province’s first female civil judge in 1982. Within five years, she was promoted to senior civil judge and then as additional district and sessions judge in 1991. In March 1996, she was once again promoted as district and sessions judge.
Justice Safdar also worked as a presiding officer in the Labour Court. She was appointed a member of the Balochistan Services Tribunal from 1998 until she was appointed chairperson of the Balochistan Services Tribunal in 2009.
Justice Faisal Arab
Arab was among those judges of the superior judiciary who were deposed for refusing to take oath under the Provisional Constitutional Order (PCO) under former president and army chief Gen (retd) Pervez Musharraf proclaimed emergency on November 3, 2007. He rejoined office in 2008 when he took a fresh oath following his ‘reappointment’.
With a legal career spanning 23 years, Justice Arbab’s journey began when he worked as an associate at the law firm of Justice (retd) Fakhruddin G Ebrahim, after which he opened his own firm. Having practiced in the subordinate and superior judiciary, he was appointed as the standing counsel for the federal government in 2004-2005. Arab was elevated to the Sindh High Court as additional judge on October 25, 2005, and became permanent upon confirmation after one year. He became the senior puisne judge when Justice Baqar was elevated to provincial chief justice on September 21 this year.
Justice Muhammad Yawar Ali
Born in 1956, Justice Ali who studied Law at the University of Leeds in the United Kingdom. He was elevated as a Lahore High Court judge on February 19, 2010 and will retire on October 22, 2018. He has served as standing counsel and a deputy attorney general in Punjab.
He is the son of former Chief Justice of Pakistan Yaqoob Ali Khan. He is also the brother-in-law of Justice (retd) Khalilur Rehman Ramday, who gave the judgment to restore Chief Justice Iftikhar Muhammad Chaudhry when he was made dysfunctional by Musharraf.
Published in The Express Tribune, November 20th, 2013.
COMMENTS (18)
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@Javed Khan:All the good this judiciary has done, you must be living in cloud cuckoo land,this biased chief justice has chosen these judges, it was this chief Justice who dared someone to come forward to iniate proceedings against General Musharraf earlier in the year.In a proper civilised democracy the chief Justice does not yell out for someone to come forward and register a case against someone he may have a grudge against,if something similar happened in the west there would have been a huge outcry, Pakistan is full of corruption.
The three judges nominated for Musharraf case are totally biased. Its a plot and complete misuse of power, both at government and judiciary levels. CJ claims to be champion of judiciary, he must show some character now otherwise, PML-N govenment will ruin all the good thing this judicary has done after he leaves.
Musharraf is being tried because of his sincerity and love for Pakistan and the living in. The corruption is now getting hold on everything.
The treason case should be against who tried to hijack the plane carrying 300 passengers from Sri Lanka.
When ever a news is posted about Musharraf, most of the comments are in his favour !!
Justice Arab is being referred to as Justice Arbab in the second paragraph - "With a legal career spanning 23 years, Justice Arbab’s journey began..."
How a person can be Judge against the person from whom he was directly affected - Justice Faisal Arab.. Your Honor no disrespect but..
Read the comments of Mansoor Ali Khan Ex AGP,Khalid Anwer ex Lawyer To Nawaz Sharif, S.M Zafar they all are saying it's nothing more than revenge this bald man trying again what he did by hijacking Aeroplane Colombo -Karachi. Nothing going to happen To Great Musharraf but at cost of poor Pakistani Tax payer money Nawz enjoying Foreign trip plus revenge game. God bless Pakistan,
Now if the Govt has started this issue, we expect nothing but pure justice from these honorable judges - whole Nation as well world is watching your honor.
I personally have nothing against Musharraf..He has love of Pakistan in his hart. He saved Pakistan when democratically elected Prime minster was turning Pakistan into Khlafith and declaring himself to a permanent Khalif. Second time. he declared emergency. Because Judgeship was getting out of control.To run the country smoothly, because extremism was getting out of control.
Now we have democratically elected government from last six years. There is no Law and order. Corruption is flourishing. inflation has set in. there is no light in the tunnel. Government is trying to divert attention of public to irrelevant issues. We are heading to the path of distraction. This is time to unite the nation not divide the nation. Now biggest threat to the existence of Pakistan is from extremism which has been spread by our petrol dollar rich Wahhabi and Slafies. They have no tolerance. We are South Asians we have our own culture and traditions to fallow.As I believe that an Arab can not be a non Arab and a South Asian or African an not be an Arab. God Bless you.
When this General is tried it will bring rule of law in Pakistan
Could some one enlighten the readers about the current status of corruption case in the Supreme Court of Pakistan against the son of the Chief Justice of Pakistan. The media appears to have put the case in the cold storage and is primarily focused on cornering Musharraf who gave it the freedom of speech.
Musharraf never abrogated the constitution. It was only held in abeyance due abnormal conditions created and manipulated by a hidden force eager to plant a pliable government.
Such charge of treason should be thrown out by courts. It is all a political stunt by Nawaz Sharif's government. Musharraf served this country for nearly 40 years where he was ready to lay his life. There were several attempted assassination attempts on him. He was removed from the position of COAS while representing Pakistan in Sri Lanka in 1999 and still travelling. The Nawaz Sharif government jeopardised Pakistan's security by doing so in 1999, follwed by removal of previous Army Chief and tussle with the then Chief Justice of Pakistan. This is a country which has unstable government functionaries and Imperial thinking rulers who did not mend their ways in past 6 years of so called return to democracy. Musharraf did not make money during his tenure, nor promoted corruption or neptism as did PPP and PML-N. The so called Pakistani constitution, which allegedly Musharraf violated, has miserably failed to protect Pakistani citizens' rights for security and safety, it has failed to provide a secure 'future' or even secure 'present' both economically and socailly, it has transformed over the decades of 1970s and 1980s into a religious document making the state of Pakistan ungovernable and unliveable for many of its citizens. We should be thankful to Musharraf in providing the few years of stability and a sense of government during his time givign us feeling of a worthy nation. Not any more.
a course correction 55 years in the making. better late than never. Musharraf should be hanged. If that day ever comes, it will be the single most important day in the history of this country. And what good riddance it will be.
There is never a dull day in Pakistan. Musharraf will sail through This will be talked about until something new crops up.
All three judges have in one form or other axe to grind with the accused. How can they be fair? They should excuse voluntarily.