The detailed judgment that followed a short order on Musharraf Treason Case was nothing short of a bombshell. The 169 page judgment upon release caused a storm of reaction from all quarters. Even those who supported the punishment found it hard to support and celebrate the choice of words and extremism in awarding of that punishment.
The decision is split 2-1 and comprised of Justice Waqar Seth, Justice Shahid Karim and Justice Nazar Akbar who sentenced Musharraf to death declaring him guilty of high treason for abrogating the Constitution in 2007 and declaring Emergency.
Thee clauses within the judgment 55, 65 and 66 are of particular interest here:
Clause 55 states that all those aiding or abetting or collaborating the act mentioned in Clause (1) shall likewise be guilty of high treason. It stated all officers that were abetting, aiding or corroborating with boots on though not named in the original complaint can also be tried for this crime. Interestingly all those who supported Musharraf judicially have not been included.
Clause 65 deals with hanging to death on each count as found guilty of each charge. The clause 66 states, “We direct the Enforcement Agencies to strive their level best to apprehend the fugitive/convict ad to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk, Islamabad , Pakistan and be hanged for 03 days.”
This is horrifying as it violates the Islamic injunctions that respects the dead body and burying it with dignity as soon as possible to ensure it does not become a prey for wild animals. “The burial of the deceased is a collective obligation (farḍkifāyah) on the Muslim community. Because it is a collective obligation the entire Muslim community will be guilty if a Muslim body is not buried, unless the burial was beyond their knowledge or capacity.”
Reports attribute it to Prophet Muhammad being it mustaḥab (or preferred) to bury dead bodies quickly.
The Editorial of Dawn notes, “The tone of the verdict that was released yesterday was horrifying in places — and indicated a troubling descent into medievalism. Have we really become so brutalized as a society that we can order the corpse of a convict who dies before he is executed to be dragged to a public square and strung up for three days?”
Our society in general has become polarized, extremist in reactions-an example of which was the attack on Punjab Institute of Cardiology recently. Here we are not dealing with uneducated street louts, but educated people who have taken an oath to uphold the law. The three member bench that heard Musharraf’s case too was the forum of the best in the legal profession. Men chosen to serve justice with impartiality. The entire judgment has come in question because certain additions and choice of words is being questioned on grounds of impartiality.
The well-known judicial principle, “Not only must Justice be done; it must also be seen to be done”has it’s roots in the precedent lying down case R v Sussex Justices, ex parte McCarthy (. In year 1923, McCarthy was embroiled in an accident while on his motorbike. He was produced in court for dangerous driving charges. Interestingly the Clerk to Justices was a member to the law firm for the civil claim against the defendant arising out of the very case being persecuted. This fact was neither known to the defendant nor his solicitor. Upon learning this fact, the defended requested the court to have the conviction set aside.
It was Chief Justice Lord Hewart who stated in his judgment hearing the appeal in a judicial review; “….The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done…..”
The principle emerges from natural justice. It is followed by nations around the globe subscribing to the English Legal System. Choice of words and extremism slant in the case under discussion does not reinforce that justice is seen to be done. Whatever the reason.
The government has decided to approach the Supreme Judicial Council with a reference against Justice Waqar Seth. However, since a judgment is protected by law government will have to prove that the learned judge was not of a sane mind when making it, if that is the plea the government wants to take up.
Musharraf’s counsel will appeal in the Supreme Court challenging the judgment. In light of the above, there is a good chance of the SC deciding upon a mistrial and ordering one anew.
End Note: In decisions of Panama Leaks, COAS Extension case & Musharraf judgment: Judgments are conclusive but not conclusive. Leaving open ends for execution/implementation by third parties with inbuilt lacunas to create friction and potential for a bad flare up. A test of all those involved.