On 17 December 2019, the Supreme Court of Pakistan convicted former Pakistani president, retired General Pervez Musharraf, of treason. This is significant because it was the first time a military leader had been sentenced for subverting the Pakistani Constitution. It is a sign that Pakistan’s judicial system is developing and that legal frameworks are being strengthened and applied in a country that has historically done little to hold military leaders accountable.

LEGAL ISSUES OF THE MUSHARRAF CASE

One of the issues in contention as a result of the Musharraf decision is the legitimacy of the application of the law and, essentially, whether or not Musharraf had a fair trial. Another issue is the ability to enforce the decision given Musharraf’s exile in Dubai. A third issue is the morality argument against the death penalty sentence. The focus of this article is on the legitimacy and fairness of the Musharraf trial and whether Pakistani jurisprudence may move towards abolishing the death penalty.

THE APPLICABLE LAW AND BACKGROUND OF THE CASE

According to Article 6 of the Constitution of Islamic Republic of Pakistan; [1]

“Any person who abrogates or subverts or suspends or holds in abeyance the Constitution by use of force or show force or by any other unconstitutional means shall be guilty of high treason.”

The treason case precipitated through Musharraf’s attempt to remove the former Supreme Court Chief Justice in March 2007. Musharraf declared a state of emergency and democratic processes were suspended between 3 March 2007 and 2 February 2008. This sparked nation-wide protests and Musharraf resigned in 2008 to avoid impeachment. The legal proceedings began in March 2013, with Musharraf being charged in March 2014.

The trial was delayed, however, as Musharraf left for Dubai in 2016 for medical treatment, and has not returned despite numerous court orders. The judgment of a court has to be fair, impartial, and objective. The court gave Musharraf opportunities to present his defence, but he failed to comply. In terms of Pakistani criminal procedure, if there is no immediate prospect of return following this, the Court may continue in the accused’s absence. [2]

Every individual is entitled to the protection of the law. [3] An efficient criminal justice system protects the rights of all those involved. [4] Article 6 of the European Convention on Human Rights guarantees a criminal defendant the right to a fair trial, as do Articles 14 and 16 of the International Covenant on Civil and Political Rights. A fair trial includes the right to be judged within a reasonable time and the right to have the time and facilities to prepare one’s defence. [5] 

ANALYSIS OF THE JUDGMENT

The independence of the judiciary is a hallmark of a civilised society. [6]  In order to advance personal goals and undemocratic agendas, military rulers in Pakistan have historically deprived the judiciary of its independence, as seen by Musharraf’s actions in 2007. The punishment for treason in Pakistan is death. [7] This judgement, however, is more symbolic in nature given that Musharraf is unlikely to return to Pakistan, a fact aggravated by the lack of an extradition treaty between Pakistan and the UAE.

When a court passes a death sentence, it does so under the assumption of a fair trial, with all relevant evidence having been presented. [8] Without these prerequisites, the judiciary forfeits its standing as an unbiased authority. Musharraf was given a fair trial and by committing treason, the suitable punishment in terms of the relevant law was a death sentence. However, this case brings the moral complexities of capital punishment to the foreground. Most countries have abolished the death penalty and Pakistan is one of only 58 remaining countries that implement it.

The Musharraf case has set new precedents for what constitutes a fair trial and acts of treason in Pakistan. This new revolution in terms of Pakistan’s legal framework may have taken into consideration future applications of the death penalty and whether or not it should be replaced with alternative punishments. Regardless of the lack of an extradition treaty between the UAE and Pakistan, as well the contentious death penalty sentence, Musharraf’s right to a fair trial was not breached. In fact, it was protected by Pakistan’s impartial judiciary.

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Legal Citations

[1] Constitution of the Islamic Republic of Pakistan 1973 art 6.

[2] Code of Criminal Procedure 1898 s 512.

[3]  Universal Declaration of Human Rights, art 7.

[4] Ali, Sardar Hamza, ‘An Analytical Study of Criminal Justice System of Pakistan (with special reference to the Province of Punjab)’ (2015) 22 (1) Journal of Political Studies 17, 18.

[5] Vuille Joelle, Luparia Luca, Taroni Franco, ‘Scientific evidence and the right the right to a fair trial under Article 6 ECHR’ (2017) 16 (1) 55, 56; see also Art 14 of the ICCPR.

[6] Naazer Manzoor Ahmad, Kundi Mansoor Akbar, Farooq Sadaf, ‘Assault on Independence of Judiciary in a Federal State: A Study of Musharraf Era (1999-2004). (Pervaiz Musharraf)(Report)’ (2018) The Dialogue 13 (1) 71. 

[7] The High Treason (Punishment) Act 1973 (LXVIII of 1973) s 2 (b).

Jibran is a fourth year Law and Economics student at the University of Canberra (UC), with a growing passion in International Law. He hopes to make a difference through developing a portfolio of written content alongside pursuing a career as a legal practitioner.

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