IN THE SPECIAL COURT ,ISLAMABAD
(Established
under Act XVII of 1976)
Complaint no-1 of 2013
The Federal Government of Islamic Republic
of Pakistan through the Secretary Interior Division, Government of Pakistan
…Complainant
Versus
General (R) Pervez Musharraf
…Accused.
Present:
Mr.
Justice Waqar Ahmed Seth
Mr.
Justice Nazar Akbar
Mr.
Justice Shahid Karim.
Date
of Judgment: 17th December 2019
DATES AND EVENTS
Accused
/General Pervez Musharraf issued following unconstitutional orders arrogating
himself as Chief Executive of Pakistan-
14 October 1999
|
Proclamation
of Emergency issued and The Constitution of the Islamic
Republic of Pakistan was suspended.
|
3 November 2007
|
Second
Proclamation of Emergency issued condemning Judges of the Higher
Judiciary for working at ‘cross purposes’ with the executive and legislature’
|
3 November 2007
|
Provincial
Constitutional Order was issued declaring that henceforth
Supreme Court or High Courts shall not have power to make any order against
the President or Prime Minister of Pakistan.
|
3 November 2007
|
Oath
of Office (Judges) Order,2007 issued to change the oath
of Office of the judges of higher judiciary mandating absolute allegiance to
the chief executive resulting into termination
of the then Chief Justice of Pakistan and 15 other judges of the Supreme
Court of Pakistan and 56 judges of the Provincial High Courts.
|
As a
result of the abovementioned, accused suspended
the constitution of Pakistan and proclaimed emergency and prescribed a fresh oath of office for all
the judges of the Supreme Court and High Courts. 2007 emergency proclamation
was although challenged in the Supreme Court of Pakistan but due to new oath which
mandated the allegiance to the dictator, judgment in the case of Tikka Iqbal
Muhammad Khan vs General Pervez Musharraf and Others (PLD 2008 SC 615) granted
validity to all the actions of General Pervez Musharraf. Such oath changing
procedure reminds of another such example in history, which is of Hitler, who also changed the oath of
the Judges to read as “loyalty to the Führer
and the constitution”
CHARGES
Whether the accused has
subverted the constitution and democracy?
Whether accused is guilty of
constitutional offence of High Treason under Article 6 of the constitution of Islamic
Republic of Pakistan, 1973.
JUDGMENT-
Waqar
Ahmad Seth, J. -
1.
Trial of High Treason is the requirement
of the constitution against those individuals who undermine or attempt to
undermine the constitution by any means.
2.
A dictator stays in power only as long as
he manages to subvert the will of his people. The Usurpation of the functions
of Government and Other organs of State established by the constitution
tantamount to subversion of the constitution.
3.
Exercise of undue influence over judiciary
do tantamount to subversion of the constitution.
Shahid Karim, J.-
1.
Treason is a political crime. It is a
crime directed against the very existence of the State itself and is therefore
peculiarly odious (Law Commission of India Report no 43, 1971).
2.
Relied on judgment by Supreme Court of
Korea in Republic of Korea vs Chun et al.96
Do3376 which was the first judicial
decision in the world that punished a successful coup.
3.
‘All constitution adjudication is applied
politics’- Felix Frankfurter
4.
A telling verbal encounter between the
judge and the main accused quoted from ‘In
Making History (Disappear): Greek’s Junta Trials and the Staging of Political Legitimization,
Haralambous, C.H (Journal pf Modern Greek Studies 35 (2),307-337 John Hopkins
University Press) as under-
“In these trials, a la Nuremberg,
what was on trial was history itself, as is implied by Ntegiannis’s response to
Papadopoulos that history was present in the courtroom. But I suggest that it
was not present as a witness or as a judge but rather as a narrative under
construction. This history was to be so constructed as to be embodied by their
leaders of the junta, that their vanquishing might raze the institution of
authoritarianism to the ground and begin history again with democracy”
5.
‘A written Constitution is the greatest
improvement on political institutions’. Further fundamental principle for
future government is that “ The powers of the legislature are defined
and limited and that those powers may not be mistaken or forgotten, the
constitution is written. To what purpose are powers are limited and to what
purpose is that limitation committed to writing if these limits may, at any
time, be passed by those intended to be restrained? The distinction between a government
with limited and unlimited powers is abolished, if those limits do not confine
the persons on whom they are imposed and if acts are prohibited and acts
allowed are of equal obligation. It is a proposition too plain to be contested,
that the constitution controls any legislative act repugnant to it or that the
legislature may alter the constitution by an ordinary act” -Chief Justice John Marshall
in
Marbury vs Madison (1803) 5 US 137
6.
“Living
under a written constitution, no branch or department of the government is
supreme, and it is the province and duty of the judicial department to
determine, in cases regularly brought before them, whether the powers of any
branch of the government and even of those of the legislature in the enactment
of law, have been exercised in conformity to the Constitution; and if they have
not to treat their acts as null and void.”- Justice Hoar, Supreme Court of Massachusetts in Burnham v. Morrissey,1
Gray 226.
7.
The system in Pakistan is one of
constitutional supremacy or to say constitutional absolutism.
8.
The law is not malleable or optional. It
is what stands between civilization and barbarism, democracy and despotism (Roger
Cohn, NYJ, 27.9.2019).
9.
The high treason had been defined to mean
abrogation or subversion of the constitution by use of force o show of force or
by any other unconstitutional means.
10. Accused
wrested to himself the power to amend the constitution. These were sweeping and
enormous powers indeed and clothed the accused with the authority of a
dictator.
11. The
accumulation of all powers, legislative, executive and judiciary in the same
hands, whether of one, a few or many and whether hereditary, self-appointed or
elective, may justly be pronounced the very definition of tyranny (James
Madison).
Nazar
Akbar, J.-
1. Subversion
of Judiciary was real intent behind proclamation of emergency.
2. Provisional
constitutional Order of 3rd November 2007 have not adversely
affected political parties rights in the parliament and in running the Federal
and Provincial Governments, therefore one can safely say that Parliament by
fist keeping silence and then amending Article 6 of the Constitution has
betrayed the Judiciary, the only target of the acts of 03-11-2007.
3. The prosecution has willfully and deliberately
failed to make out a case of High Treason against the accused.
4. At the time of trial of Judiciary both the Parliament
and the Executive authority have been playing hide and seek. There was no law,
no court for the redressal of grievance of judiciary during this period.
PUNISHMENT FOR SUBVERSION OF
DEMOCRACY
1.
For the charge of subversion of democracy
court found accused guilty as charged and
ordered that the convict be therefore hanged
by his neck till he dies.
2.
Law enforcement agencies are directed to
bring back the fugitive accused and punish as above and if found dead, HIS CORPSE BE
DRAGGED TO THE D-CHOWK,ISLAMABAD,PAKISTAN AND BE HANGED FOR 03 DAYS.
There
is no stone pillar of democracy anywhere, waiting to be demolished, to demolish
the idea of democracy. Democracy is not in the letter of law but in the spirit
of the law. It is an idea. It is in the belief of people. Democracy exists in
the mind of its people. Kill the belief and you can demolish the whole idea
without even a bullet fired.
Kartikey
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