Sharif to decide between the Judges and Mushy
SAEED MINHAS
With the waning of election fever in the country, lots of
forgotten issues have started surfacing in the public domain and
prominent of all those is the fate of former dictator Gen. (Retd)
Pervaiz Musharraf. His main adversary, Nawaz Sharif- - whom he had sent
packing to Saudi guarantors with a ten-years-politics-ban was heard
saying loud and clear during his recent election campaign that “we will
send a case of high treason against jailed Musharraf if voted to power”.
In power, Nawaz Sharif stands with a comfortable majority over his
political opponents and is sure to form his third government. Therefore,
the question looming large in the debating circles of media and even
PTI or more so amongst PPP jiyalas is that will Sharif be able to oblige
the Supreme Court by letting his government to initiate a case against
him. Or will he consider obliging the guarantors and the dominating
institution of former dictator? A trial to determine whether Gen.
Musharraf committed any treason by suspending the constitution and
imposing emergency on November 3, 2007 is already underway in the
Supreme Court. Constitutionally speaking, initiating a treason case
remains the prerogative of the federal government and Courts can only
determine whether the case fulfils the merits or not. Article 6 of the
Constitution of Pakistan outlining the contours of a high treason reads
that: (1) Any person who abrogates or attempts or conspires to abrogate,
subverts or attempts or conspires to subvert the Constitution by use of
force or show of force or by other unconstitutional means shall be
guilty of high treason. (2) Any person aiding or abetting the acts
mentioned in clause (1) shall
likewise be guilty of high treason. (2A)An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and a High Court. (3) [Majlis-e-Shoora (Parliament)] shall by law provide for the punishment of persons found guilty of high treason." A High Treason (Punishment) Act 1973 awards death penalty to anyone found guilty of treason or high treason. Though, this law has never been invoked and the prescribed sentence never awarded since its introduction. It was framed in pursuance of article 6 of the Constitution. The law reads: “A person, who is found guilty (a) of having committed an act of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty- third day of March 1956; or (b) of high treason as defined in article 6; (c) be punishable with death or imprisonment for life.” No matter, how Courts interpret these provisions of constitution and Act of parliament, but it seems quite obvious that
courts have to wait for the government of the day to initiate a case and then form a three member bench of no less than high court judges to dwell on that. Legal experts believe that it’s not just a matter of constitution or an act but it is more about the will of the federal government to put all such provisions into action. They also believe that in doing so government of the day have to think about the abettors of such a crime, which in this case might implicate many of the judges and army generals. The question might also pop up that why only 2007 and why not that of 1999, they argued. Putting this flurry of objections and counter objections aside, we have recently seen Supreme Court handing out a breather to Gen. Musharraf as caretaker government of Mir Hazar Khan Khoso refused to file charges against former dictator—supposedly for not getting clearance from GHQ and even the Gulf kingdoms. In a reply submitted to the Superior Court few weeks before the May 11 elections, caretaker administration had said “The
caretaker government should avoid taking any controversial step and should not commit any process that is not reversible by the incoming elected government.” Justice Jawad S Khwaja, who is the presiding judge, was quoted: “It appears that the government is determined not to take any legal action in this matter.” The case was adjourned and SC continued hearing the arguments from the concerned counsels of petitioner on it even after the caretakers’ negative response and now it is set to resume it after the elections. The ball, therefore, seems to have landed in the court of Nawaz Sharif--the prime minister designate. Supreme Court is likely to seek a response in this regard from a freshly ‘mandated’ government in the coming weeks because caretakers had refused to do so on the pretext that “we don’t have such a mandate”. Will he able to fulfill his personal desires of punishing his tormentor or not might become clear in few weeks time. Situation has become all the more interesting because knowing that the guarantors involved in the return of Musharraf are the same who helped Sharif’s’ rescue from the same General in 1999 when he was convicted under the same charges of high treason by the same courts. If Sharif lets him escape, the Courts who seems hungry for General’s skin might become antagonistic towards his third tenure in the office of PM, if he doesn’t than how will he respond to the Gulf Kingdoms and Castles in Rawalpindi. Besides, he will also have to care about his public stance on this issue because ever since he managed to come out of political cul-de-sac in Saudi Arabia and started political activities after five years of his muted exile, he has been on record seeking army’s confinement to barracks and blood of those who ousted his two-third- majority government. “It will be a paradoxical situation to handle for Mian sahib,” admitted one of his party stalwart while seeking anonymity.
likewise be guilty of high treason. (2A)An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and a High Court. (3) [Majlis-e-Shoora (Parliament)] shall by law provide for the punishment of persons found guilty of high treason." A High Treason (Punishment) Act 1973 awards death penalty to anyone found guilty of treason or high treason. Though, this law has never been invoked and the prescribed sentence never awarded since its introduction. It was framed in pursuance of article 6 of the Constitution. The law reads: “A person, who is found guilty (a) of having committed an act of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty- third day of March 1956; or (b) of high treason as defined in article 6; (c) be punishable with death or imprisonment for life.” No matter, how Courts interpret these provisions of constitution and Act of parliament, but it seems quite obvious that
courts have to wait for the government of the day to initiate a case and then form a three member bench of no less than high court judges to dwell on that. Legal experts believe that it’s not just a matter of constitution or an act but it is more about the will of the federal government to put all such provisions into action. They also believe that in doing so government of the day have to think about the abettors of such a crime, which in this case might implicate many of the judges and army generals. The question might also pop up that why only 2007 and why not that of 1999, they argued. Putting this flurry of objections and counter objections aside, we have recently seen Supreme Court handing out a breather to Gen. Musharraf as caretaker government of Mir Hazar Khan Khoso refused to file charges against former dictator—supposedly for not getting clearance from GHQ and even the Gulf kingdoms. In a reply submitted to the Superior Court few weeks before the May 11 elections, caretaker administration had said “The
caretaker government should avoid taking any controversial step and should not commit any process that is not reversible by the incoming elected government.” Justice Jawad S Khwaja, who is the presiding judge, was quoted: “It appears that the government is determined not to take any legal action in this matter.” The case was adjourned and SC continued hearing the arguments from the concerned counsels of petitioner on it even after the caretakers’ negative response and now it is set to resume it after the elections. The ball, therefore, seems to have landed in the court of Nawaz Sharif--the prime minister designate. Supreme Court is likely to seek a response in this regard from a freshly ‘mandated’ government in the coming weeks because caretakers had refused to do so on the pretext that “we don’t have such a mandate”. Will he able to fulfill his personal desires of punishing his tormentor or not might become clear in few weeks time. Situation has become all the more interesting because knowing that the guarantors involved in the return of Musharraf are the same who helped Sharif’s’ rescue from the same General in 1999 when he was convicted under the same charges of high treason by the same courts. If Sharif lets him escape, the Courts who seems hungry for General’s skin might become antagonistic towards his third tenure in the office of PM, if he doesn’t than how will he respond to the Gulf Kingdoms and Castles in Rawalpindi. Besides, he will also have to care about his public stance on this issue because ever since he managed to come out of political cul-de-sac in Saudi Arabia and started political activities after five years of his muted exile, he has been on record seeking army’s confinement to barracks and blood of those who ousted his two-third- majority government. “It will be a paradoxical situation to handle for Mian sahib,” admitted one of his party stalwart while seeking anonymity.
