RETIRED Gen Pervez Musharraf should be gratified by the Lahore High Court’s verdict on Monday, so wholly does it exonerate the former military dictator. The three-judge bench in a short order declared unconstitutional all actions taken by the special court that had found Mr Musharraf guilty of high treason and sentenced him to death. That verdict last month by a special court consisting of three high court judges is considered a landmark ruling — both lauded and excoriated, depending on which side of the divide one stands. It had hitherto seemed inconceivable that any military dictator this country has ever known would be convicted of high treason, as defined in Article 6 of the Constitution. However, the LHC through its verdict has indirectly set aside Mr Musharraf’s conviction. Although the detailed judgement is yet to be issued, it seems the bench was convinced by the argument that the special court was unlawful because it was not constituted with the federal cabinet’s approval. It also struck down the eminently sensible Section 9 of the law under which special courts function, as being a violation of fundamental rights. This clause allows a trial with certain safeguards to proceed even in the absence of the accused when such absence has been brought about by the latter himself. In short, it does not allow an accused to wilfully impede or evade justice. Further, the LHC declared that under Article 6, no law can be retrospectively applied.
Some legal experts, however, question whether the LHC was the competent forum to adjudicate on the matter at all. According to Article 199, a high court may take up the application by an aggrieved party “if it is satisfied that no other adequate remedy is provided by the law”. When the special court had given its verdict, before the LHC had concluded its hearings, surely an appeal to the Supreme Court was more than adequate remedy, indeed the next logical step in the legal process. Moreover, the Article cited above refers to “any act done or proceeding taken within the territorial jurisdiction of the court”. Certain legal quarters are asking whether that which has taken place in Islamabad — the constitution of the special court, Mr Musharraf’s trial, etc — can be described as falling within the LHC’s territorial jurisdiction.
As for retrospective application of the law because ‘suspending’ the Constitution — rather than subverting or abrogating it — was only inserted into Article 6 in 2010, three years after the emergency was imposed, it is difficult not to concur with the special court that described this line of reasoning as “semantic fraud”. If this were to stand, another military dictator would only have to come up with a new definition of essentially the same action in order for it to not attract Article 6. The issue is undeniably one of public importance, and it would be in the fitness of things for the Supreme Court to weigh in by exercising its original jurisdiction.
Published in Dawn, January 15th, 2020