ISLAMABAD: A few days before commencement of his trial for high treason, former president retired Gen Pervez Musharraf has challenged the legality of a special court constituted for the case and insisted on court martial proceedings.

Legal experts, however, say the former dictator cannot be tried by a military court under the Pakistan Army Act (PAA), which does not cover treason or subversion of the constitution.

The special court has summoned Gen Musharraf on Dec 24.

However, he filed a petition through Dr Khalid Ranjha on Saturday before the Islamabad High Court (IHC), saying he had imposed emergency and a provisional constitution order when he was chief of the army staff and by virtue of section 92 of the PAA of 1952 he remained subject to the act even after retirement.

Justice Riaz Ahmad Khan of the IHC will hear the petition on Monday.

The petition said there was no cabinet decision for the trial. It said Gen Musharraf had accepted the reinstatement of former chief justice Iftikhar Muhammad Chaudhry.

About the imposition of emergency, he said he had placed the situation as depicted by the then prime minister before the governors of the provinces, chairman of the Joint Chiefs of Staff Committee, chiefs of the armed forces, vice-chief of the army staff and corps commanders of the Pakistan Army. Pursuant to these deliberations, emergency was proclaimed and the constitution was ordered to be held in abeyance.

He said the act had been ratified by parliament through a resolution and endorsed by a larger bench of the Supreme Court on Nov 24, 2007.

Gen Musharraf said he, as president, had appointed Justice Chaudhry as the CJP. However, on March 9, 2007, he was suspended to face a presidential reference for violating the norms of judicial propriety.

The Supreme Court held on July 27, 2007, that the reference was of no consequence.

Gen Musharraf said he had also proclaimed emergency on Oct 14, 1999, holding the constitution in abeyance.

The petition requested the court to declare the special court illegal and said the former military ruler should be tried “under Section 92, read with all enabling provisions of the PAA, 1952”.

A former judge advocate general of the army, retired Brig Wasaf Khan Niazi, said Gen Musharraf could not be tried by a military court. Under section 92 of the Army Act a retired army person can be recalled within six months after retirement over the offences of desertion, fraud, sedition and mutiny.

“In my personal opinion, the petition will not provide any benefit to Gen Musharraf except lingering on his trial in the special court.”