ISLAMABAD: Former president Pervez Musharraf may face trial in the ‘high treason’ case for imposing the November 3, 2007 emergency, but legal experts believe that his trial will not open any ‘Pandora’s box’.
The federal government on Monday informed the Supreme Court that it was ready to take action under the ‘high treason’ act against those who violated the constitution.
According to the legal experts, the civilian and military leadership of the Musharraf regime cannot be tried for abetting him for imposing the emergency.
The notification for the proclamation of the November 3 emergency was also not issued through the proper channel - the ministry of law and justice - after completing necessary formalities.
According to a senior official of the cabinet division, who was privy to the developments of November 2007, the directive for the proclamation of the emergency was issued from the presidency.
The official on the condition of anonymity told Dawn that in the afternoon of November 3, 2007, Mohsin Hafeez, the then secretary to Gen Musharraf, called the then secretary establishment Masood Alam Rizvi and conveyed to him the direction for issuing a notification for proclamation of the emergency.
He said by 6pm that day, the cabinet division’s ministerial wing had issued the notification.In the proclamation, the military ruler asserted: “I General Pervez Musharraf, chief of the army staff, proclaim emergency throughout Pakistan. I hereby order and proclaim that the constitution of the Islamic Republic of Pakistan shall remain in abeyance.”
The proclamation also mentioned that the emergency was imposed “in pursuance of the deliberations and decisions” of a meeting which was attended by then “prime minister, governors of all the four provinces and with chairman, joint chiefs of staff committee, chiefs of the armed forces, vice chief of army staff and corps commanders of the Pakistan Army.”
The official of the cabinet division, however, said there was no record available with them, which would prove that any authority except Gen Musharraf was behind the proclamation of the emergency.
“No summary or written order was given to the cabinet division for issuance of the proclamation and regarding the said meeting and all the exercise was done on phone calls,” he added.
He, however, claimed that the imposition of emergency was not only validated by the federal cabinet and the Supreme Court when Justice Abdul Hameed Dogar was the chief justice but also the National Assembly passed a resolution in the support of the military dictator.
Dr Mohammad Amjad, a senior vice-president of Musharraf’s All Pakistan Muslim League (APML), claimed that the trial of Gen Musharraf would open a ‘Pandora’s box’ and the political and military leadership during the Musharraf regime would also be tried for high treason.
“Imposition of the emergency was a collective decision of Gen Musharraf, his cabinet members and the military leadership and how Musharraf alone would face the consequence while the ‘advisers’ are still in the parliament or wearing uniforms,” he added. MNA Sheikh Rashid Ahmed, who was also a federal minister in the Musharraf’s cabinet, told Dawn that the former military dictator never consulted him on the imposition of the emergency.
He also criticised the government for giving consent for the trial of Gen Musharraf, saying the government was trying to divert the public attention from other grave issues.
Constitutional expert S. M. Zafar, who was also a part of Musharraf government, however, said without the other high-profile persons the trial of Gen Musharraf would create constitutional questions.
He said the “suspension or keeping the constitution in abeyance” was not an offence in November 3, 2007, and it was added to the article 6 in the 18th amendment.
The imposition of the emergency was validated by then chief justice Dogar but the order was set aside by the other judges at a later stage, he said. He added that the apex court judges while setting aside the order did not declare it ‘non-existent’ and Gen Musharraf may get benefit from the judgment of Justice Dogar.
The experts pointed out that the Supreme Court in its judgment in the Sindh High Court Bar Association case had held that the proclamation of emergency was the sole initiative of Gen Musharraf which was apparent from the words “I, General Pervez Musharraf …” used in it.
Advocate Ahsanuddin Sheikh, a former president of Lahore High Court (LHC) Bar, Rawalpindi, also believed that the trial of Gen Musharraf would not open any ‘Pandora box’.
For the sake of arguments, if it is presumed that Musharraf being COAS had consulted the imposition of emergency with the corps commanders, even then they could not be tried under article 6, he maintained. He said army personnel had to obey the order of their chief.
Justice (retired) Tariq Mehmood said the role of the political and military leadership of the past in the imposition of emergency was irrelevant. But giving consent to try Gen Musharraf by the government, which is still in its third week, may create some problem for its future planning, he added.
