The writ of one dictator appears to have laid the groundwork for ensnaring another military ruler.
As General (retd) Pervez Musharraf became the victim of ordinances that had been issued during the tenure of the previous military ruler General Ziaul Haq – who repealed the Pakistan Army Act (PPA) 1977 through an ordinance in 1981 – the Justice Faisal Arab-led special court defined the rules under which a trial can be transferred to a military court.
The (redundant) Act of X of 1977 of the PPA includes offences punishable under the high treason act within the ambit of the Army Act.
A three-judge special court in its February 21 order examined the Pakistan Army (Amendment) Act, 1977 to determine whether it is an existing law. The order says that Act X of 1977 stood repealed on July 8, 1981 through an ordinance issued by former army chief General Ziaul Haq.
The court also held that offences punishable under the High Treason (Punishment) Act, 1973 are not triable by a court-martial under the PPA 1952 and that these are exclusively triable under the Criminal Law Amendment (Special Court) Act, 1976.
Musharraf’s legal team contended that the 1981 ordinance had lapsed after an expiry of the statutory period contained in Article 89 of the constitution, therefore, all the repealed laws including the Act X of 1977 stood revived.
In its written order, the Justice Faisal Arab-led bench made it clear that Musharraf’s team might have lost sight of the fact that “all ordinances promulgated between July 5, 1977 to December 30, 1985 [during the Zia era] were given protection under Article 270-A of the Constitution…”
The court in its order held that much reliance was placed by Musharraf’s counsel on section 7 of PPA for transferring of the case to a military court, which shows that it deals with an altogether different situation.
A bare reading of the provisions of section 7 makes it clear that any person attached to or forms part of a military force, which is brought into action in a combat situation against an enemy or is engaged in some military operations, whether in the country or on foreign soil, can be regarded on active service if duly notified by the federal government.
Hence, apart from serving uniformed personnel called on active service, there can also be certain persons or class of persons who though not in uniform, have in some way been attached with the military force subject to the issuance of the notification by the federal government under section 7 of the Army Act, the order further says.
The intention behind treating a person on active service is to bring him within the fold of the provisions of the Army Act so that he could be dealt with accordingly, the court’s order held, adding, “Thus, section 7 of the Army Act is intended to achieve this limited purpose only.”
A member of Musharraf’s legal team said that an appeal would be filed before the apex court against the order of the special court under Articles 14 and 25, highlighting exploitation and discrimination in this case. He said the court has yet to decide the issue of bias and rendered a far-reaching order against the accused.
The trial is a classic example of discrimination because only a single person is being targeted, he said.
The review petition will also seek relief from the apex court to transfer this case to an army court as when the accused committed this alleged offence he was a serving officer of the army.
Published in The Express Tribune, February 23rd, 2014.