• Verdict that upheld army takeover of Oct 12 still considered a ‘good law’, laments Justice Minallah
• CJP Isa wonders why govt is interested in defending someone convicted of treason

ISLAMABAD: As the Supreme Court on Tuesday took up a set of appeals against a Lahore High Court order that had overturned the conviction of late military dictator Pervez Musharraf, the role of judges who had legitimised martial laws in the past came under scrutiny by the four-member bench.

On Jan 13, 2020, the Lahore High Court (LHC) declared ‘unconstitutional’ a special court verdict that sentenced the late dictator to death for high treason under Article 6.

During Tuesday’s proceedings, however, Justice Athar Minallah wondered whether the abrogation of the Constitution on Oct 12, 1999, when an elected government was sent packing, was a more serious offence than the removal of superior court judges from their offices on Nov 3, 2007, which had led to a nationwide movement.

“The difficulty is that Zafar Ali Shah’s validation of the Oct 12, 1999 sacking is still in the field as a good law, when judges who legitimised the military takeover by late Gen Pervez Musharraf should have also been tried for the same crime,” observed Justice Minallah.

The observation came when senior counsel Rashid A. Razvi, representing the Sindh High Court Bar Association, referred to the LHC judgement and contended that the court should also consider whether judges who misinterpreted Article 6 were also liable for misconduct under Article 209 of the Constitution (Supreme Judicial Council).

Justice Minallah regretted that Pakistan’s judicial history was not very flattering, because when Gen Musharraf suspended the Constitution and dismissed the National Assembly, judges validated the abrogation.

“Action was taken against Mus­h­arraf when the judges were atta­cked (deposed on Nov 3, 2007). This leads to the biggest question of fair trial since the judges legitimise the abrogation while standing up for their own cause,” Justice Minallah observed.

However, Chief Justice Qazi Faez Isa observed that “instead of closing our eyes we at least should seal the past and teach our children in the schools about the Constitution”.

The CJP also wondered why political governments were interested in supporting or defending an individual who was tried for high treason and then convicted under Article 6.

“This is a puzzling aspect,” the CJP observed, also questioning the wisdom behind displaying photographs of judges who had validated martial laws at different times, in Courtroom No 1.

The question arose when the court asked Additional Attorney General (AAG) Chaudhry Aamir Rehman about the stance of the federal government on the LHC judgement and whether it supported the petitions when they were heard by the high court.

The AAG replied that the government was not supporting the high court judgement. But Justice Syed Mansoor Ali Shah, a former LHC chief justice himself, observed that ‘all were on the same page’ when the case was heard by the high court. It should be noted that Justice Shah had already been elevated to the apex court when the case in question was taken by the LHC.

When senior counsel Hamid Khan, representing petitioner Taufiq Asif, contended that all political parties supported the move, the CJP asked whether the counsel was suggesting that Pakistan was run by one man and all the national and provincial assemblies were relegated to the dustbin.

Pointing towards Advocate Salman Safdar, who had challenged the conviction handed down by the special court to his client, Justice Isa asked him to assist the court at the next hearing on whether his appeal would be abated upon the death of his client. The court will take up the case on Jan 10, 2024.

The counsel should also assist the court what will be the consequences, including the pension benefits, awards, and other benefits to the legal heirs in case the apex court upholds the conviction awarded by the special court.

Truth and reconciliation commission

During the hearing, the CJP referred to experiences in South Africa and Germany, where truth and reconciliation commissions were constituted to acknowledge the mistakes made in the past.

“When there is no concept of military takeovers in the Constitution,” the CJP regretted, “then how could it legitimise something which is unconstitutional?”

Justice Minallah also wondered why the Supreme Court did not issue any direction to initiate a case against Pervez Musharraf, when Article 270AAA explicitly declared the Oct 12 military takeover ‘unconstitutional’.

While referring to the July 31, 2009, Sindh High Court Bar Association plea, in which the Supreme Court had denounced successive military takeovers and their endorsement by the superior judiciary by declaring unconstitutional Gen Pervez Musharraf’s second coup through emergency order of Nov 3, 2007, Justice Minallah regretted that that verdict still did not overrule the 2000 Zafar Ali Shah judgement and therefore it was still holding the field like a good law. “This is the reality.”

“Contempt of the court notices should have been issued against judges who violated their oath of office, but it was not done,” Justice Minallah observed.

“Nothing happens when the usurper is strong, but when he is weak, judgements like 1972 Asma Jillani comes and even convictions were awarded,” Justice Minallah regretted.

During the hearing Advo­cate Hafiz Abdul Reh­man Ansari argued from the Lahore registry that extraneous factors had resulted in the filing of the petition before LHC, which eventually set aside the conviction awarded to Mr Musharraf.

Published in Dawn, November 29th, 2023