High treason case

The treason case filed against former COAS and President General Pervez Musharraf (retd) for imposing a state of emergency in 2007 and suspending the Constitution has dragged on without conclusion since 2013. In 2016, Musharraf was allowed to proceed abroad by the superior courts and the interior ministry on health grounds. He has since never returned to face the court proceedings. The special court trying the case perhaps relied on the Supreme Court's ruling that the defendant loses his right to a legal defence if he continues to absent himself from the proceedings in announcing on November 19, 2019 that it would deliver the final verdict in the case on November 28, 2019. The Islamabad High Court (IHC) was approached by the complainant, the interior ministry and Musharraf approached the Lahore High Court through their respective counsel to delay the verdict. The former argued the complaint against Musharraf had not been filed through an authorised person nor had the special court been formed properly, while the prosecution team was removed on October 24, 2019 after loopholes in the case were discovered, yet they submitted written arguments before the court without the ministry's authorisation. Additional Attorney General Sajid Ilyas Bhatti informed the IHC that the government was about to notify new prosecutors but the special court concluded the proceedings without even engaging with the new legal team. The counsel for Musharraf on the other hand relied on arguments that the accused had not been afforded a proper opportunity to present a defence and that the special court had not even entertained his application seeking acquittal.

The IHC set aside the special court order regarding announcing the final verdict on November 28, 2019 just one day before. It directed the government to notify a fresh prosecution team by December 5, 2019. During the proceedings, it was conceded by Law Secretary Khashishur Rehman that the special court was indeed properly constituted with the approval of the federal cabinet. The IHC further asked the special court to fix a date for affording a reasonable opportunity of hearing the prosecution and defence while concluding the proceedings expeditiously. The special court has responded to the IHC's decision by saying it is not bound by it, only by the Supreme Court's directives. It has announced it will hear the case on a daily basis after December 5, 2019. It remains to be seen how this statement of 'autonomy' by the special court will play out.

Military dictators in our history have got away with violating the Constitution without any adverse consequences. Even General Yahya Khan was only declared a usurper by the superior judiciary long after he had vacated power. On the other hand, the superior judiciary's track record in the past of validating military coups and martial laws left jurisprudence in Pakistan in a shambles. Musharraf's case therefore assumes an extraordinary importance for being the first instance of a military ruler, despite having his 1999 coup endorsed by the Supreme Court and action thereunder indemnified by Parliament to have been hauled up on treason charges for the emergency imposition in 2007. However, Musharraf has managed to avoid appearance in the special court on the grounds of ill health even before he left the country in 2016, and certainly since then. It is inconceivable that ordinary mortals and citizens could have received the kid glove treatment Musharraf has. This contrast simply reflects the powerful position enjoyed by COAS in our system, even after they have retired. The special court has gone out of its way to try and accommodate Musharraf's appearance or even deposition by electronic and written means. This has not been taken advantage of by the accused over the years on one pretext or the other. It appears the special court finally lost patience with these dilatory tactics and is now determined not to brook any further delay. It will, however, have to take account at the very least of the IHC's directives regarding the constitution of a fresh prosecution team and allowing at least Musharraf's counsel to argue his case. The outcome, however, remains as clouded as ever.