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Govt submits a vague statement in SC

June 25, 2013

ISLAMABAD, June 24: Though Prime Minister Nawaz Sharif’s announcement in the parliament about going ahead with retired General Pervez Musharraf’s trial took the country by storm on Monday morning, the government’s official statement presented to the Supreme Court was vague and hardly a firm commitment.

The new attorney general, Muneer A. Malik, told the court that the government would proceed in accordance with the law and prosecute Mr Musharraf for treason — after taking the political forces into confidence.

“[Prime Minister Nawaz Sharif] will act according to the highest standards of justice and follow the due process of law,” Attorney General Muneer Malik said while reading out a one-page statement before the three-judge Supreme Court bench headed by Justice Jawwad S. Khawaja.

“… the federal government will proceed in accordance with the law and also take political forces into confidence through a consultative process so that the collective will and wisdom of the people of Pakistan is duly reflected in further process in this behalf,” said the AG. The vagueness of the promise did not pass un-noticed.

“This is nothing; the interim government had a better stance than this,” was the immediate response of Justice Khilji Arif Hussain, one of the members of the bench which is hearing a number of petitions filed before the SC that seek the prosecution of Mr Musharraf under treason charges.

On April 22 the previous caretaker government of Mir Hazar Khan Khoso had told the court that the issue of Musharraf’s prosecution should be addressed by the elected government and not the caretaker set-up.

Mr Malik then asked the court on behalf of the government for 30 days to take the political forces into confidence and then provide the court with details on how to carry out the trial.

The court, however, was only willing to give the government three days. It asked the AG to submit by June 26 the steps the government needed to take to bring an individual to trial under Article 6 of the constitution (high treason) by specifying the mechanics of such process. The next hearing date is June 27.

If and when the government goes ahead with trying Musharraf under Article 6, this will be the first trial of its kind.

To begin with, the government will have to authorise the secretary of interior, a designated or a focal person under a statutory regulatory order (SRO) issued way back in 1994, to lodge the complaint under Article 6 of the constitution.

Second the government will have to appoint a three-man special court comprising high court judges -- under Section 4 of the Criminal Law Amendment (Special Court) Act, 1976 – to carry out the trial. The jurisdiction of the special court to try any person under treason is exclusive and no other court has the jurisdiction to hear or interfere with this trial.

This is why legal experts are of the opinion that the government’s seriousness on the matter will be clear from whether or not it sets up the special court.

According to Additional Secretary of the Supreme Court Bar Association (SCBA) Sardar Abdul Majeed, the special court, if constituted, would be established in consultation with Chief Justice Iftikhar Muhammad Chaudhry.

The High Treason (Punishment) Act 1973 says that the suggested punishment for high treason as defined in Article 6 of the constitution is death or imprisonment for life.

Govt intentions

Despite the announcement of the prime minister on the floor of the house, some lawyers were still sceptical of the government’s true intent especially as they found the attorney general’s statement ambiguous.

“The statement of the AG is an eyewash,” said a senior lawyer on condition of anonymity while PTI’s senior vice president and a lawyer Hamid Khan also called it a “political statement”.

Khan said the government’s suggestion that the political forces had to be consulted and engaged created doubts about its intentions.

Instead of political consultation the PML-N should have initiated the process of beginning the trial, he said. He asked what the government would do if the political parties failed to develop consensus. Would the government then stay away from carrying out the trial, he questioned.

It needs to be pointed out that the statement does not even clarify what the government means by political forces – is it referring to the political parties or other political stakeholders also.

Advocate Ahmed Raza Kasuri who has represented Musharraf before the court also highlighted this aspect, while describing the statement as “constitutional poetry”.

However, this is not to say that all legal experts were this doubtful. Others merely welcomed the move.

For instance, former president of Supreme Court Bar Association (SCBA) Tariq Mehmood supported the government’s attempt to engage political forces saying that such consultations were needed to handle sensitive issues.

He added that the trial would lead to political uncertainty and this would also discourage foreign investment at a time that it was needed. Others share his view.

“This will be a politically dangerous case since it would also throw up questions about the fate of the executioners and implementers of the Musharraf’s decision to impose an emergency on Nov 3, 2007. We are talking about 400 to 500 people,” said Advocate Chaudhry Faisal Hussain.

The AG statement

The Federal Government, in line with the Supreme Court’s decision in the Sindh High Court Bar Association’s case (July 31, 2009), firmly subscribes to the view that the holding in abeyance of the Constitution on Nov 3, 2007, constituted an act of high treason within the meaning of Article 6 of the Constitution. The Prime Minister is under oath to protect, preserve and defend the constitution and it is implicit in his oath that his government ensures that persons guilty of acts under Article 6 are brought to justice.

The Federal Government is fully in line with a unanimous resolution passed by Senate of Pakistan at a time when the Prime Minister’s political party was in the opposition. Now that his party is in the government and is committed to following the highest standards of rule of law, it wishes to ensure that further steps required to be taken by it are not blurred under the cloud of “Victor’s justice”. Notwithstanding the fact that the Prime Minister has borne the brunt of Musharraf’s brazen coup, he wishes to assure both this august court and the people of Pakistan that he will act according to the highest standards of justice and follow the due process of law. Given the primacy of the issue in the struggle for upholding the spirit of the Constitution, the Federal Government will proceed in accordance with law and also take political forces into confidence through a consultative process so that the collective will and wisdom of the people of Pakistan is duly reflected in further process in this behalf.