Justice Faisal Arab of SHC to head special tribunal with Justice Yawar Ali of LHC, Justice Syeda Tahira Safdar of BHC its members
LAHORE - The treason case against former military dictator Pervez Musharraf took a major stride on Tuesday when the federal government notified names of three judges for the special court. Prime Minister Nawaz Sharif approved the names of three judges out of the five sent by the Supreme Court of Pakistan earlier in the day.
The announcement came hours after the Supreme Court forwarded the names of five judges suitable to sit on the special court, following a government request on Monday.
“The Prime Minister has approved names of judges for special court for trial of high treason under article 6 (of the constitution),” PM’s office said in a statement.
Justice Faisal Arab of Sindh High Court will head the special court with Justice Yawar Ali and Justice Syeda Tahira Safdar of Lahore High Court and Balochistan High Court, respectively, its members.
“The government has notified the tribunal,” the statement added.
Earlier, the matter made headway when the Supreme Court of Pakistan received names of five judges, one each of the high courts. The registrar of the Supreme Court sent these names along with their profiles to the Law Ministry, asking it to choose any three of them for initiating trial of the former dictator under Article 6 of the Constitution.
The names given by the high courts on a letter from the Supreme Court registrar included Justice Noorul Haq Qureshi of Islamabad High Court, Justice Syeda Tahira Safdar of Balochistan High Court, Justice Yehya Afridi of Peshawar High Court, Justice Muhammad Yawar Ali of Lahore High Court and Justice Faisal Arab of Sindh High Court.
The Law Ministry had written to Chief Justice Iftikhar Muhammad Chaudhry to name judges for a special court to try Pervez Musharraf.
It may be recalled that hearing a petition seeking the high treason case against Musharraf, the Supreme Court in June last had required the federal government to find out and decide whether a sedition case had been framed against Pervez Musharraf. The Ministry of Interior got the matter probed through the FIA and concluded that a high treason case, prima facie, could be framed over the proclamation which not only subverted the Constitution but also meted out maltreatment to the judges of the superior courts, who were deposed in the light of the PCO.
A convict of high treason under the law is liable to punishment of death or life term.
On the question of formation of a forum for the trial of former dictator Pervez Musharraf, the jurists say the federal government adopted an indirect course instead of pursuing a direct one.
Whether the selection of the special court judges was the prerogative of the chief justice of Pakistan or the government is a moot point.
Jurists in their expert opinion have consensus that by approaching the chief justice of Pakistan to get the names of judges for the special court, the government, in fact, went an extra mile. They say in terms of Section 4 of the Criminal Law Amendment (Special Courts) Act, 1976, it was the prerogative of the government to establish a special court for the purpose of Musharraf’s trial under Section 2 of the High Treason (Punishment) Act 1973.
Senior jurist Abid Hassan Minto says the government acted wrongly by seeking names for the special court judges from the chief justice of Pakistan. Under the law, he said, the government was required to write to the chief justices of the respective high courts to give names. Minto, however, did not disapprove the course adopted by the government. He also appreciated the chief justice of Pakistan for following the law and sending names of the high court judges to the government for picking three of them. Minto said a special court, and not a bench of the court, was authorised to try Musharraf. So it is the government that figures in its formation and not the judiciary, he said.
Minto, answering a question, said the special court would proceed with the case the same way as a court does. After judicially perusing the record of the case, recording evidence, hearing the witnesses and cross-examining them, it would give a decision whose implementation would come through the executive.
The senior jurist was of the view that the right of appeal against the decision of the tribunal would be available before the Supreme Court.
Former Supreme Court judge Wajihuddin Ahmad endorsed the views of Minto and said though the government was fully competent to directly reach out to the high courts to get names of judges for the special court, but it acted more fairly by forgoing its right and urging the SC to give the names. He also lauded the SC for seeking one name from each high court and sending it to the executive as per the law. He said it would infuse confidence in the special court and give transparency and impartiality to the trial. However, in reply to a connected question, he said, no hard and fast criterion or yardstick had been laid down to select three of the five. Nevertheless, he said, while picking up three judges, the Law Ministry should take care that no one could raise question of bias or partiality against anyone.
There are a number of judicial norms which the government can follow in this behalf, he added. Justice Wajih replied in the affirmative when asked whether the constitution of the special court was challengeable on the ground that the government approached the SC instead of exercising its own authority in this regard.
The announcement came hours after the Supreme Court forwarded the names of five judges suitable to sit on the special court, following a government request on Monday.
“The Prime Minister has approved names of judges for special court for trial of high treason under article 6 (of the constitution),” PM’s office said in a statement.
Justice Faisal Arab of Sindh High Court will head the special court with Justice Yawar Ali and Justice Syeda Tahira Safdar of Lahore High Court and Balochistan High Court, respectively, its members.
“The government has notified the tribunal,” the statement added.
Earlier, the matter made headway when the Supreme Court of Pakistan received names of five judges, one each of the high courts. The registrar of the Supreme Court sent these names along with their profiles to the Law Ministry, asking it to choose any three of them for initiating trial of the former dictator under Article 6 of the Constitution.
The names given by the high courts on a letter from the Supreme Court registrar included Justice Noorul Haq Qureshi of Islamabad High Court, Justice Syeda Tahira Safdar of Balochistan High Court, Justice Yehya Afridi of Peshawar High Court, Justice Muhammad Yawar Ali of Lahore High Court and Justice Faisal Arab of Sindh High Court.
The Law Ministry had written to Chief Justice Iftikhar Muhammad Chaudhry to name judges for a special court to try Pervez Musharraf.
It may be recalled that hearing a petition seeking the high treason case against Musharraf, the Supreme Court in June last had required the federal government to find out and decide whether a sedition case had been framed against Pervez Musharraf. The Ministry of Interior got the matter probed through the FIA and concluded that a high treason case, prima facie, could be framed over the proclamation which not only subverted the Constitution but also meted out maltreatment to the judges of the superior courts, who were deposed in the light of the PCO.
A convict of high treason under the law is liable to punishment of death or life term.
On the question of formation of a forum for the trial of former dictator Pervez Musharraf, the jurists say the federal government adopted an indirect course instead of pursuing a direct one.
Whether the selection of the special court judges was the prerogative of the chief justice of Pakistan or the government is a moot point.
Jurists in their expert opinion have consensus that by approaching the chief justice of Pakistan to get the names of judges for the special court, the government, in fact, went an extra mile. They say in terms of Section 4 of the Criminal Law Amendment (Special Courts) Act, 1976, it was the prerogative of the government to establish a special court for the purpose of Musharraf’s trial under Section 2 of the High Treason (Punishment) Act 1973.
Senior jurist Abid Hassan Minto says the government acted wrongly by seeking names for the special court judges from the chief justice of Pakistan. Under the law, he said, the government was required to write to the chief justices of the respective high courts to give names. Minto, however, did not disapprove the course adopted by the government. He also appreciated the chief justice of Pakistan for following the law and sending names of the high court judges to the government for picking three of them. Minto said a special court, and not a bench of the court, was authorised to try Musharraf. So it is the government that figures in its formation and not the judiciary, he said.
Minto, answering a question, said the special court would proceed with the case the same way as a court does. After judicially perusing the record of the case, recording evidence, hearing the witnesses and cross-examining them, it would give a decision whose implementation would come through the executive.
The senior jurist was of the view that the right of appeal against the decision of the tribunal would be available before the Supreme Court.
Former Supreme Court judge Wajihuddin Ahmad endorsed the views of Minto and said though the government was fully competent to directly reach out to the high courts to get names of judges for the special court, but it acted more fairly by forgoing its right and urging the SC to give the names. He also lauded the SC for seeking one name from each high court and sending it to the executive as per the law. He said it would infuse confidence in the special court and give transparency and impartiality to the trial. However, in reply to a connected question, he said, no hard and fast criterion or yardstick had been laid down to select three of the five. Nevertheless, he said, while picking up three judges, the Law Ministry should take care that no one could raise question of bias or partiality against anyone.
There are a number of judicial norms which the government can follow in this behalf, he added. Justice Wajih replied in the affirmative when asked whether the constitution of the special court was challengeable on the ground that the government approached the SC instead of exercising its own authority in this regard.
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