The Lahore High Court (LHC) verdict against the special court in the Musharraf case was challenged in the Supreme Court on Monday. The petitioner maintains that the LHC did not have the jurisdiction to hear the case.
The Lahore High Court had ruled the special court that sentenced Pervez Musharraf to death was not formed according to the law.
The high court didn't have the jurisdiction to hear a petition against the special court's constitution, says the petitionerhttps://t.co/eDB6tKMwHu
— Samaa English (@SamaaEnglish) February 3, 2020
Notably, through a short order on January 13, the bench comprising Justice Syed Mazahar Ali Akbar Naqvi, Justice Muhammad Ameer Bhatti and Justice Chaudhry Masood Jahangir had set aside all proceedings starting from filing of complaint, formation of a special court, trial in absentia and conclusion of the trial.
Petitioner Taufiq Asif, a former president of the high court’s Rawalpindi Bar, has challenged the LHC decision. The petitioner has pleaded the Supreme Court to declare the verdict of the high court as ‘unconstitutional’ and thus null and void.
The petition argues that the petition against the special court was out of the jurisdiction of the Lahore High Court. Article VI of the constitution was also not interpreted properly in the verdict, according to the petition.
“The high court could not question the supreme court’s decision about conducting the trial in absence of the accused,” the petition said.
The 36-page detailed verdict was authored by the head of a three-member bench Justice Syed Mazahar Ali Akbar Naqvi.
The court in its verdict said Article 6(2) of the Constitution could not be enforced from the past as Article 12 of the Constitution provides protection against retrospective punishment. Article 6 of the Constitution was modified through the 18th Amendment in 2010, while the case against Musharraf concerned events that happened prior to amendment in 2007.
The court observed that approval was not sought from federal cabinet in terms of Article 90(1) of the Constitution before filing the compliant against Musharraf.
The bench expunged clause 9 of the Criminal Law Special Court (Amendment) Act 1976 as in insistence with Article 8 which says “Laws inconsistent with or in derogation of fundamental rights will be void”.
Trial in absentia
It is important to note that the Supreme Court heard a petition regarding the delay in the proceedings of the case in April, 2019. In its judgment, the SC noted the persistent absence of the accused from the proceedings, and held that “if the accused voluntarily chooses not to exercise his right to appear and to be present at trial, it does not infringe on the fairness of the trial.” The court further stated that control over the proceedings did not vest with the accused, and “to stop further proceedings of the trial, in this situation, would be putting a premium on the fault of the absconder.”
The SC went on to state that since General Musharraf is an absconder, he “has lost the right to audience…and has lost the right to have an advocate appointed to defend him unless and until the accused surrenders before the court.” Thus, the SC directed the special court to proceed with the trial in General Musharraf’s absence if he failed to appear before the next date of the hearing i.e. May 2, 2019.
The legal community is divided on the LHC’s detailed verdict. Some lawyers believe that the LHC did not have constitutional authority to hear this case or pass an order which categorically contradicts with the earlier decisions of the Supreme Court.
LHC decision in Musharraf’s treason case may be unsurprising, but “reasoning” is truly laughable:
Court flouts SC judgments on same issues; renders Art. 6 almost redundant; and assumes an appellate role over special court that only SC can exercise
Shameful, to say the least
— Reema Omer (@reema_omer) January 27, 2020
A legal expert told GVS that “if an unreasonable verdict has been penned down by the Supreme Court then any high court in this country is not entitled to correct it”. He further noted “the apex court can correct itself but any subordinate court does not have jurisdiction to pass any order contrary to what the SC has outlined”.
In the instant case, the apex court formed a Special Court on the request of then-Prime Minister Nawaz Sharif. Analysts believe that if the attempt was illegal or politically motivated then why did the court pass instructions to form a Special court?
The SC is now to determine whether the LHC can interpret anything contrary to the orders of the apex court.