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On December 17, 2019, a special court of the Supreme Court of Pakistan awarded death sentence to former military general and ex-president of the country Pervez Musharraf for the offence of “high treason”.
The court’s ruling was based on the finding that Musharraf had imposed an “extra-Constitutional” emergency on November 3, 2007. The effect of such declaration of emergency in Pakistan had been that hundreds of top judges were placed under house arrest or dismissed, triggering nationwide demonstrations from lawyers. Therefore, Musharraf’s 2007 declaration of emergency could not be offered the protection of the Constitution.
The offence of high treason is provided in Article 6 of the Constitution of Pakistan, which reads as follows:
“Any person who abrogates or reinstates or suspends or attempts to abrogate or subvert or suspend or suspend the Constitution by force or coercion or by any other unconstitutional means shall be guilty of high treason.”
(It is here pertinent to note that Article 6 was inserted in the Constitution of Pakistan by the 18th Amendment in the year 2010. This fact is important as the offence of high treason was therefore not in existence when Musharraf declared the emergency, but was subsequently inserted as a punishable offence. Hence, the law was applied retrospectively to arrest and convict Musharraf.)
In the case of Federation of Pakistan v. General (R) Pervez Musharraf , a three-judge bench comprising of Chief Justice of Peshawar Waqar Ahmed Seth, Justice Shahid Karim and Justice Nazar Akbar found Pervez Musharraf guilty of High Treason.
The decision was passed in 2:1 majority; the dissenting judgement came from Nazar Akbar. In a 167-page Judgement, the Court awarded death penalty to Musharraf on account of five charges framed against him.
The court also noted that in Pakistani law, death is the only penalty for high treason. According to the 1973 High Treason Punishment Act, death or life imprisonment is the penalty for high treason.
The Court also directed in the verdict to law enforcement agencies to ensure that if, the concerned person is found dead before execution, his corpse be dragged to the D-Chowk, Islamabad and be hanged for three days. After which Pakistan army slammed the trial and its spokesperson regarded, the words used in the written order as beyond humanity, religion, culture and any other values.
Imran Khan’s Goverment has decided to file a reference against Chief Justice of Peshawar High Court Waqar Ahmed Seth for his remarks in the verdict about general’s corps be dragged and hanged.
Musharraf has denied all the allegations stating that ‘I have been victimized’ and the case is based on ‘personal vendetta’. Musharraf currently undergoes medical treatment at a hospital in Dubai. As he is on a self-imposed exile and can lay appeal in the higher Court, the chances of his extradition or implementation of this verdict is unlikely.
Musharraf gained national eminence when he was made army’s general and led Kargil infiltration in 1999. In no time contentious relations started between, then prime minister of Pakistan Nawaz Sharif and army general Pervez Musharraf. Sharif tried to remove Musharraf, in retaliation to which army staged coup d’etat, which led Musharraf being the President of Pakistan in 2001.
Musharraf who seized the power in 1999 through a military coup, which was facing a widespread public backlash. The fear of public opposition and Supreme Court ruling against the presidential elections led him to impose an emergency on November 3, 2007, citing the reason of it to be enervated judiciary and high threat from militant attacks. He claimed that the imposition was necessary considering ‘national interest’.
For a period of 4 months, all civil liberties, human rights and democratic processes were suspended. The final years of his reign were characterised by fighting against the courts over his desire to remain head of the army while becoming president. He also detained a number of judges and issued provisional legislative orders to uphold his regime. Strong public resentment, creeping Talibanisation and rising US pressure caused Musharraf to succumb and finally resign.
On July 31, 2009, the Supreme Court of Pakistan ruled that the emergency imposed was unconstitutional under Article 279 of the Constitution of Pakistan and declared the steps in declaring the state of emergency to be null and void, and adjudged the removal of judges to be unconstitutional and illegal. Musharraf refused to answer charges against him and fled to the UK.
The case against Musharraf
Musharraf in 2013 returned to Pakistan to participate in that year’s general elections but was then booked for treason and was disqualified from participating after warrants were issued against him. He was accused of high treason under Article 6 of the Constitution of Pakistan, 1973.
The court held that he should be apprehended from Dubai and must be hanged by neck till he dies and if found dead before being executed his corpse to be dragged and hanged for three days.
To proof the jurisdiction to pass this verdict, the court relied on the previous ruling of Pakistan Supreme Court in Lahore High Court Bas Association v. General (R) Pervez Musharraf. Though the word high treason is not defined in Pakistan’s constitution, the court relied on its dictionary meaning. Also, the retrospective application after the insertion of article 6 is disputable.
It can be no coincidence that the decision came in haste just 2 days before the retirement of Chief Justice Asif Khosa, who gave a green flag to the special court to pass the verdict in absentia.
Explaining the Charge – What is high treason?
In UK, the crime of disloyalty to the crown is known as high treason. In earlier times high treason was separated from petit treason, and was considered as the most serious offence subjected to extraordinary punishments.
High treason offences were generally related to the sovereign and its subjects while petty treason was of any sub-ordinate relation, such as, in a master-servant relationship, of a bishop and a clergyman, of a husband and a wife etc. In 1828 petit treason ceased to be a distinct offence and high treason is today referred simply as treason.
Sir Edward Coke, Baron de Montesquieu, Sir Matthew Hale, and Sir William Blackstone regarded the highest of offences to be treason and declared it needed to be precisely defined in order to prevent governmental abuse.
Similar laws in India
While treason is not explicitly defined in Indian law, it is included in State offences (under sections 121-124A IPC). In the case of Ram Nandan v. State of U.P., the Hon’ble High Court held that section 124A enforced restrictions on free speech which are not in the general public’s interest and therefore proclaimed 124-A to be unconstitutional.
However, in the case of Kedarnath Das v. State of Bihar, the Hon’ble Supreme Court overturned this judgment and upheld Section 124-A as valid and constitutional. Generally defined, in so far as it disturbs public order, all offences are against the state or government.
However, there are certain illegal acts that are aimed against the state’s very existence, some of which are treason, espionage, and revolt. Treason is the offence of betraying a state by actions that are perceived to be dangerous to its protection, such as selling military secrets to a foreign power, aiding the tyrant in wartime, etc.
Treason is also explained in the 43rd Law Committee report, explaining offences against national security as an expression that is generally applied in its narrow and limited sense to those very severe offences that explicitly and recklessly affect the security and competence of the Country.
While some regard this judgement as a historic decision to curb military influence and to destabilise Pakistan’s military establishments as profit making companies and see this verdict in the light of a means to recognise supremacy of constitution and rule of law in Pakistan.
Contrary to this opinion, others do not relate this matter with constitution or justice but an ongoing hustle between the two institutions craving for power and dominance. Pakistan Army Spokesman Maj Gen Asif Ghafoor was quoted as saying, “The due legal process seems to have been ignored including constitution of special court, denial of fundamental right of self-defence, undertaking individual specific proceedings and concluding the case in haste.”
Therefore, the Court in issuing the hasty judgement and order, had failed to ensure the basic rights of the accused, as provided by the Constitution. Nevertheless, the conviction against Musharraf is significant for Pakistan, as it sets a precedent for governance.
Since the inception of democracy in Pakistan in 1970, this is the first time that a military leader has faced any kind of accountability by public as well as judicial resentment. Such an unprecedented event is surely the avant-courier of a new political age for the country.
Authors: Aryan Parashar from National Law University Odisha and Muskaan Verma from Alliance School of Law, Bangalore.
Editor: Anna Jose Kallivayalil from NLU, Delhi.