The General has the last laugh!

• Special court partially accepts Musharraf’s request to include ‘three co-conspirators’ in high treason case
• Two of the three-member bench orders govt to include former PM Shaukat Aziz, former law minister Zahid Hamid and former CJP Dogar in investigation
• Turn down request to include top military commanders of that period in investigation

Months after former military ruler Pervez Musharraf filed a request to include alleged co-conspirators in the high treason trial against him, the special court on Friday partially accepted the plea with majority vote and gave the federal government 15 days to submit a report to the court so investigations can be started once again, including against three co-conspirators.

Musharraf was formally charged in March this year for subverting and circumventing the constitution by imposing emergency on November 3, 2007 – charges he denies.

The three-member bench headed by Justice Faisal Arab decided that then prime minister Shaukat Aziz, then law minister Zahid Hamid and then chief justice of Pakistan Abdul Hameed Dogar will be included in the investigation, but the judges refused to accept Musharraf’s request for including then top military leaders.

The decision is based on the original complaint filed by the federal government which had said that the role of other facilitators could be examined.

Musharraf had also demanded that the civilian leadership and the military authorities that allegedly abetted in the imposition of the November 3, 2007 emergency should also be tried along with him.

According to the proclamation issued for the November 3 emergency, Musharraf imposed the emergency after consulting the then prime minister, the governors of all four provinces and the chairman of joint chiefs of staff committee, the chiefs of the armed forces, the vice-chief of army staff and the corps commanders of the Pakistan Army.

“Based on the material on record, the probability of their involvement as aiders and abettors cannot be ruled out,” the court said in its order signed by Justice Faisal Arab and Justice Tahira Safdar of the three-member bench.

“We are therefore of the view that joinder of the then prime minister and the then federal law minister is necessary to secure the ends of justice.”

The third judge on the panel, Justice Yawar Ali gave a dissenting view, dismissing the application to extend the charges.

The judge said that Musharraf had proclaimed emergency as COAS and “so far there is nothing on record to show that the applicant acted on constitutional advice which rendered to him while imposing emergency and taking other steps in pursuance of the same”.

“No doubt after the emergency was imposed it was accepted wholeheartedly by the PM, cabinet ministers, members of the assembly and those judges of superior courts who opted to take a fresh oath. At this stage, it cannot be concluded that this is an offence with a continuing cause of action, meaning thereby that all those persons who acted upon, accepted, ratified and subsequently took concrete steps for implementation of proclamation of emergency ought to be treated as aiders and abettors,” the judge wrote in his dissenting note.

Sources said that the dissenting note represented the opinion of Musharraf’s antagonists who wanted the former general tried for treason at all costs.

BACK TO SQUARE ONE:

Musharraf’s counsel Farogh Naseem said all those against whom evidence is found will be implicated in the case.

Earlier this year, Naseem had requested the court to include accomplices in the trial. Labelling the request as premature, Prosecutor Akram Sheikh had said the issue regarding the co-accused can be raised when witnesses will record their testimonies.

Talking to Pakistan Today, several legal experts said that the special court’s acceptance of Musharraf’s request had complicated the case as the trial would now have to begin from scratch.

“The special court was mandated to try Musharraf only but after accepting the request to include ‘aiders’ and abettors’ in the case, the court will find it difficult to achieve the task it was originally formed to achieve,” said a senior lawyer, asking not to be named.

Another expert said that Gen (r) Musharraf had signed the proclamation of emergency orders as Chief of the Army Staff, not as president of the country.

“As COAS, there is little chance of Musharraf taking the advice of the then prime minister and the then law minister. There are however chances that the dictator could have sought advice from his corps commanders. When emergency was proclaimed, everyone involved accepted and implemented Musharraf’s decision so why then confine the ‘aiders’ and ‘abettors’ to Shaukat Aziz, Zahid Hamid and Justice (r) Dogar only?” asked the senior lawyer.

He said now that the court had ordered the government to include the three ‘co-conspirators’ in the case, it would be interesting to see how the government includes them in the investigation.

“Shaukat Aziz is not in Pakistan since long. How will the government make him appear before the court for investigation. What if he refuses to come to Pakistan? Will the government issue notices to him through Interpol? Chief prosecutor Akram Shaikh had called the trial an open and shut case but from the look of things it’s pretty clear that Musharraf will be off the hook soon,” he said.

“Moreover, Justice Faisal Arab will be elevated as the chief justice of the Sindh High Court in the next few months and the special court will have to be constituted again. Such imminent developments are also likely to affect the proceedings against Musharraf,” he said, adding that the former dictator would have the last laugh when all of this is over.

Chief Prosecutor Akram Shaikh was not available for comment.

Apart of the so-called ‘aiders’ and ‘abettors’ everyone else is in a win-win situation including Gen (r) Musharraf, whose trial is now inexorably delayed; Prime Minister Nawaz Sharif who must have heaved a sigh of relief as the military’s pressure on his government over the trial of their former army chief eases; and the military commanders of Musharraf’s era, including the then Vice Chief of Army Staff Ashfaq Parvez Kayani, who could have been dragged into the case.