SUPREME COURT DECLINES TO TAKE UP TREASON APPEAL

C O N F I D E N T I A L SECTION 01 OF 02 ISLAMABAD 001782 SIPDIS E.O. 12958: DECL: 07/31/2019 TAGS: PREL PGOV PK SUBJECT: SUPREME COURT DECLINES TO TAKE UP TREASON APPEAL AGAINST MUSHARRAF REF: A) ISLAMABAD 1658 B) ISLAMABAD 01684 Classified By: Gerald Feierstein for reasons 1.4 (b,d) ¶1. (C) Summary: Supreme Court Justice Iftikar Chaudhry said July 30 the Court would not take up an appeal to charge former President Musharraf with treason. The appeal had emerged during an ongoing case being heard by the Court which challenges the constitutionality of Musharraf's actions in declaring a state of emergency on November 3, 2007. Attorney General Khosa went further July 31, suggesting the Court would do no more than invalidate the legitimacy of the declaration of the state of emergency and stating that Parliament, not the Court, had the authority to question other issues which might stem from the Court's decision. We have heard Chief of Army Staff Kayani may have urged the Chief Justice, through former President of the Supreme Court Bar Association Aitzaz Ahsan, not to allow the current hearing to become a broader judgment on the legitimacy of Musharraf's rule. The Court ruled late July 31 that all steps taken on November 3, 2007 are considered null and void. End Summary. ¶2. (U) The Supreme Court on July 30 declined to hear a request to order initiation charges of high treason against former President Pervez Musharraf for proclaiming a state of emergency on November 3, 2007. Supreme Court Justice Iftikar Chaudhry said, "this is not the proper forum to initiate such a case. We are not authorized to do so." ¶3. (C) The Supreme Court has been in the process of hearing the "Tikka Iqbal" case (see ref b) which challenges the constitutionality of Musharraf's actions to declare a state of emergency on November 3, 2007. The Court had given former President Musharraf the opportunity to speak on his own behalf (or to send a legal representative) in that case, but he was under no legal obligation to do so and did not make any appearance or legal representation the week of July 27. The Court's "offer" to Musharraf and the "Tikka Iqbal" hearing had fueled speculation that this case would lead the country (or its politicians) to examine how (or whether) they would examine the legitimacy of the Musharraf regime or certain of the former President's actions. ¶4. (C) In a July 29 meeting with Lahore A/PO, Chaudhry Fawad Hussain, the junior lawyer retained by former President Musharraf, clarified that his high-profile client had only a tangential involvement in the case against the PCO judges. Musharraf had hoped to delay his re-entry into public life until November, when the bar on his political participation expires, Fawad reported. He related that Musharraf plans to run for office, though Fawad admitted, "only Zardari is less popular.8 The former President has pinned his political aspiration on support from General Kayani, but Fawad had doubts how strongly the Pakistan Army would back Musharraf. Moreover, although Musharraf has stayed in touch with the Pakistan Muslim League (PML) leadership, his links, even with the breakaway faction led by former Minister Humayun Akhtar Khan, remained tenuous, Fawad observed. Fawad said that the attorney team would meet Musharraf in London on August 13. After his European travel in August, Musharraf planned to go to the U.S. in September, Fawad continued. ¶5. (C) Iftikar Chaudhry's deflection of any action toward instigating charges of treason against Musharraf deflated some of the speculation that has been rampant since the Court decided on July 22 to hear petitions challenging Musharraf's actions in November 2007. Polcouns has heard second-hand that former President of the Supreme Court Bar Association and leader of the Lawyer's Movement (that led to the reinstallation of Chief Justice Chaudhry) Aitzaz Ahsan met with Chief of Army Staff Kayani who urged that the Supreme Court be prudent about allowing the "Tikka Iqbal" hearing to devolve into a broad referendum on Musharraf's rule. ¶6. (U) Further deflating suggestions the hearing had such implication, Attorney General Latif Khosa told journalists gathered outside the court July 31 that the Parliament had constituted a 27-member all-parties committee to take care of the constitutional amendment process. He expressed his hope that the Supreme Court would invalidate the November 3, 2007 actions, but hinted that the Court would do nothing more. Khosa pleaded before the court that 37 presidential ISLAMABAD 00001782 002 OF 002 ordinances were issued after November 3, 2007 and if all presidential actions after that date were to be declared unconstitutional it would create a legal dilemma. He asked that invalidation or validation of those actions be left to Parliament. Chief Justice Chaudhry, in response to Khosa, asked for a record of those ordinances Parliament wanted retained and said the Court respects the supremacy of Parliament. ¶7. (C) Khosa's plea and Chaudhry's response may also have been a means to stop speculation that the Court might act before Parliament on the long-promised PPP government pledge to walk-back certain amendments to the Constitution made by Musharraf (a subject most recently discussed by President Zardari and opposition leader Nawaz Sharif in their July meeting -- ref a). ¶8. (U) The Court ruled late July 31 that all steps taken on November 3, 2007 are considered null and void. ¶9. (C) Member of the Provincial Assembly (MPA) Hamza Sharif extolled the Chief Justice,s attempt to try Musharraf, he told A/PO July 28 (prior to Chaudhry's declaration that initiating charges of treason was not before the court). Hamza expressed bitterness that Musharraf,s rule had kept his father Shahbaz and uncle Nawaz out of Pakistan and estranged from the remaining family members for seven years, and he saw the Supreme Court,s hearing on the legitimacy of declaring emergency rule as a deterrent to military dictators. Hamza had suggested that, if the Court were to find Musharraf guilty, he would likely have to move to Saudi Arabia, which lacks an extradition treaty with Pakistan. ¶10. (C) Comment: The ruling on the "Tikka Iqbal" case transpired late July 31; Musharraf's 2007 declaration of the state of emergency has been ruled a violation of the Constitution. The case has spurred discussion on how and whether Pakistan's elected officials, political parties, or the public at large ought to examine the nation's past under Musharraf's rule. Chief Justice Chaudhry's statement, however, together with that of the Attorney General, suggest they are not seeking to use Pakistan's highest court for that purpose, at least not for now. FEIERSTEIN