SUPREME COURT SUMMONS MUSHARRAF

C O N F I D E N T I A L SECTION 01 OF 02 ISLAMABAD 001684 SIPDIS E.O. 12958: DECL: 07/23/2019 TAGS: PGOV PREL PK SUBJECT: SUPREME COURT SUMMONS MUSHARRAF Classified By: Anne W. Patterson for reasons 1.4 (b),(d). ¶1. (C) Summary: Pakistan,s Supreme Court is hearing a case, which actually combines two separate petitions, that may be the first of several legal challenges to the constitutionality of former President Musharraf,s actions on November 3, 2007, when he suspended the constitution, declared a state of emergency, and relieved some 60 Pakistani judges of their positions. In a July 22 session, the Court served notice to former President Musharraf to appear in court to defend his November 2007 actions. Should the court rule against Musharraf, several additional cases challenging decisions made during his presidency may follow. A ruling against Musharraf in these cases may ultimately impinge on the interests of the Army and President Zardari. End summary. ¶2. (SBU) The Supreme Court is entertaining two different petitions challenging former President Musharraf's action: one filed by the Sindh High Court Bar Association (SHCBA) challenging the dismissal of two Sindh High Court judges by Musharraf, and the second filed by prominent Islamabad attorney (who often handles PML-N chief Nawaz Sharif's legal matters) Akram Sheikh challenging the appointment of judges who took an oath under the Provisional Constitutional Order (PCO). The SHCBA filed the current case against the federal government demanding the reinstatement of two Sindh High Court judges dismissed by Musharraf during the State of Emergency SOE) in November 2007. At the same time, Supreme Court Chief Justice Iftikhar Chaudhry said that the justices will accept Sheikh's appeal of a previous November 2007 decision, which validated the SOE and declared that judges who had not renewed their oaths under Musharraf,s November 3, 2007 PCO ceased to be members of the Court. Chaudhry said that the Court will combine the Sheikh petition with the SHCBA petition, and that both will now be legally referred to as the "Tikka Iqbal" case. ¶3. (U) In its July 22 hearing the Court served notice to former President Musharraf to appear before the Court either in person or through his lawyers on July 29. It was argued that Musharraf should be given a chance to defend himself because the intention behind his November 3 emergency proclamation has been challenged by the petitioners, though he is not named as a defendant in the petition. Earlier, Chaudhry had indicated that the Court would arrive at a decision by July 24. However, during the July 22 hearing the Court deemed it "legally pertinent" to give Musharraf a chance for his defense. Musharraf and his lawyers have refused to comment. ¶4. (C) Whether or not Musharraf appears in his defense, the Court seems inclined to rule against his actions. A thirteen-judge bench of the Supreme Court led by Chaudhry is hearing the case. None of the judges on that panel took oaths under Musharraf's PCO, a fact that will likely bias them against Musharraf. Moreover, Chaudhry publicly likened the endorsement of Musharraf's November 3 actions by the Court to the 1958 endorsement of the first martial law in Pakistan's history by the then Supreme Court. "It is now the responsibility of the judiciary to get the constitution and the law strictly adhered to," said the Chief Justice. Chaudhry described the two cases as a constitutional matter when he joined them together, and though the petitions do not seek to convict Musharraf, the implications of the decisions will open the floodgates for petitions against Musharraf directly. ¶5. (SBU) Attorney General Latif Khosa has also testified before the court that the current Pakistan People's Party (PPP)-led government did not endorse the actions of President Musharraf and stated that the government would not support Musharraf in the court proceedings. In addition to his apparent bias against Musharraf in Court, Chaudhry has publicly praised parliament for not ratifying the November 3 emergency proclamation. ¶6. (C) On July 23, Prime Minister Gilani told the Ambassador that many thought it would be difficult for Musharraf to return to Pakistan. He said that Nawaz Sharif was very "bitter" about his treatment during the Musharraf regime, stopping short of saying but implying that Sharif had influenced the court's decision. The PM said that he believed the courts were going to repeal the 17th amendment, which would allow for a third term for Nawaz. He said the ISLAMABAD 00001684 002 OF 002 amendment (which would restore the powers to the prime minister) should be repealed by the parliament but he was certain the courts were going to beat them to it. The PM said (quite sincerely) that he had tried to build a political coalition and had been pleased at his success in obtaining unanimous votes on many issues and bringing PML-N along. ¶7. (C) Comment: Chief Justice Chaudhry is determined to open the issue of Musharraf's past controversial decisions, and from Chaudhry's statements and the hearing thus far, a judgment against Musharraf's actions is likely. The result of such a decision would be the restoration of the two Sindh judges and the invalidation of all the judges who took the PCO oath. Following such a decision the PCO judges would be compelled to resign, or face additional challenges to their authority. More broadly, once the PCO judges are purged from the Court, a newly strengthened and like-minded Court would be free to take up the issue of the 17th Amendment, the National Reconciliation Ordinance (NRO) or other petitions charging Musharraf with treason. The NRO pardoned many prominent politicians, including Asif Zardari, and paved the way for Zardari's presidency and Zardari will be determined to prevent a court action that undermines his legitimacy. For their part, Chief of Army Staff Kayani and the military will oppose any effort that ultimately leads to changes of treason against Musharraf because of their concern that nothing be done that would damage the Army's standing in the country. As the cases heat up, therefore, Chaudhry is likely to face political pressure to moderate his attacks on Musharraf or Zardari. Musharraf is not likely to return to Pakistan, and in the face of these political realities, we believe it is still likely that the Court will stop short of decisions that cross either Zardari's or Kayani's redlines. End Comment. PATTERSON