Pakistan’s ex-President Musharraf’s treason trial by a special court will test the limits of dispensing justice in meandering intrigues. It is now sixteen years since the emergency was imposed and there is plenty of hindsight to determine why he transgressed and was he partially justified in doing so? 

My argument is that while dispensing justice, the court will have to factor the prevailing international environments, instability within Pakistan, events preceding murder of Benazir Bhutto, NRO and conduct of a hyper active Chief justice.  Do not ignore the role of economic hitmen who plunged the country into the worst economic crises by December 2007. 

My main concern is that the crises precipitated Pakistan worst economic crises despite a stellar economic recovery from 2000-2007. My research indicates that the entire saga was engineered by a group of concentric circles around President Musharraf who were either power hungry or disloyal. It was powered from outside Pakistan by countries that wished to shape an unstable governance trajectory.  Back then though I called it ‘surgical procedure by butchers’ I also wrote:- 

Musharraf was a reluctant coup maker. He promoted a hybrid by running the country through civilians while retaining the army as his support base. He refused to declare Martial Law and retained the incumbent President. He forayed into such initiatives as engaging India, Afghan Policy, tax registration, dams, minority mainstreaming and devolution. Most he preserved Pakistan’s national interests when USA and its allies were hyperactive in the region to destabilise. Though he wanted himself to be remembered as a reformer, this was not to be despite many reforms he set in motion.  

The hybrid of ‘neither here nor there’ progressively distanced his main constituency-the army. He formed concentric circle of advisors comprising political, military, diplomatic, analysts, intelligence and personal friends. Many a times, it led to guessing as to who the real advisors were? It was often commented that his close aides and advisors put an insular ring around a delusional wonderland. The more he delved into internal politics, the deeper he fell into the quagmire. 

Threat Perception is a fine tuned social science. Various threats and vulnerabilities combine to create a decision making cycle. In this calculus Musharraf was eager to put his own reputation at stake and this is what the conspirators drove him to. The noose was tightening but his sense of vulnerability versus indispensability cantankerously built by his courtiers blinded him. 

Invariably, whatever the decisions; however good or bad; appear to have been taken on the premise of supreme national interest. Was Musharraf a victim of his exaggerated threat perception or exaggerated indispensability? This paragraph became the subject of a seminar in a reputed university in Turkey. In my analysis, it was not power but exaggerated indispensability that blinded his sincere intentions. History is replete with examples where rulers were victim to this ‘saviour syndrome’. 

On 24 November 2007, a seven panel larger bench headed by Chief Justice Abdul Hameed Dogar ruled in President’s favour but asked him to relinquish the office of the chief of army staff before taking oath as civilian president. The Supreme Court also validated the imposition of emergency and the promulgation of the Provisional Constitution Order issued by the Chief of the Army Staff. The Supreme Court wrote: -

“In the recent past the whole of Pakistan was afflicted with extremism, terrorism and suicide attacks using bombs, hand grenades, missiles, mines, including similar attacks on the armed forces and law enforcing agencies, which reached climax on 18th of October 2007 when in a similar attack on a public rally, at least 150 people were killed and more than 500 seriously injured. The situation which led to the issuance of Proclamation of Emergency of the 3rd day of November 2007 as well as the other two Orders, referred to above, was similar to the situation which prevailed in the country on the 5th of July 1977 and the 12th of October 1999 warranting the extra-constitutional steps, which had been validated by the Supreme Court of Pakistan in Begum Nusrat Bhutto V. Chief of the Army Staff (PLD 1977 SC 657) and Syed Zafar Ali Shah V. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) in the interest of the State and for the welfare of the people, as also the fact that the Constitution was not abrogated, but merely held in abeyance”. 

This was and remains a very effective reference on judicial duplicity as Justice Iftikhar Chaudhary who over turned everything, also kept the spirit of Syed Zafar Ali Shah V. Pervez Musharraf alive after his second ascension in 2009. There are many one sided landmark decisions that were taken by Chaudhary benches with an absent defence. Treason is one of them. 

On April 19, 2010, the Eighteenth Amendment was promulgated. It stated that, (1) Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason. It also included the words ‘collaborating after abetting’. There was no mention of retrospective application. 

Towards the end of 2013 and more than three years later, the PML-N government filed a treason case against ex-President Musharraf over his imposition of emergency. In private discourses, Nawaz Sharif admitted he wanted to teach the military a lesson. Mohammad Akram Sheikh was appointed as the lead prosecutor. Ex-President Musharraf appeared before the court in March 2014. He was indicted but rejected all charges. 

In April this year, the Supreme Court directed the special court to proceed with the trial and in case the former president surrendered and appeared before it, he would be entitled to record his statement. It added that “being a proclaimed offender, the special court is empowered to proceed against him even in his absence”.

Once PTI government was elected to power, the lead prosecutor Mohammad Akram Sheikh resigned. Yet with an incomplete and de-notified prosecution team the special court continued its proceedings. On November 19, the special court concluded the trial proceedings. It ruled that a verdict would be announced on November 28 on the basis of the available record. Why such haste, is beyond comprehension of Ex-President Musharraf, the Federal Government and many jurists.  

Meanwhile, in the last week of November, Lahore High Court took up a petition filed by the defence attorney Khawaja Ahmed Tariq Rahim challenging the verdict reserved by a special court. The petition had detailed reasons and prayers based on technical irregularities, fundamental rights and right to life. 

Concurrently, the Federal government through Interior Ministry submitted a petition in the Islamabad High Court, requesting it to stop the special court from announcing the reserved verdict on November 28. It contended that the co-accused were not included in the trial and that the prosecution team had been de-notified. The government maintained that an opportunity to notify a new prosecution team in the case was denied. The special court has now declared that it would announce the verdict on December 17 after hearing the arguments of the government’s new prosecution team. What happens to Ex-President Musharraf’s defence is unclear. 

Many questions arise and linger. 

If we assume that the petitioner and government are giving the right reasons, why such haste without meeting the technical requirements for ends of justice? 

Why is the ex-President being exclusively targeted ignoring his accomplices if any? 

If Justice Dogar was not dismissed; why such selective duplicity over his judgements? 

Are courts showing such haste and bias?  This is up to jurists to ascertain.

But there is a political angle. 

Beginning the emergency saga, army ran into a well laid ambush. Though General Raheel Sharif and General Bajwa have redeemed much, the overcast sky is still not bright. It still operates in a most hostile and unfriendly environment. Dawn Leaks and Extension Controversy provide reference points. 

Judicial activism since 2009 is setting new trends with disregard to biases, fundamental rights and right to life. The special court is not the end. The long hand of law will take its course ending with the the President through the Prime Minister. But I hope it never comes to this. 

Remember! There is finesse in indirectness. The biggest beneficiary will be the family empire of ‘Sicilian Mafia’.