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General Musharraf's case in UK & his possible return
Amjad Malik is a British lawyer who represent 3 Pakistani students waiting deportation on national security grounds and represented a religious cleric Shafiq ur Rehman in the House of Lords post 9/11 and initially advised Imran Khan on 12 May massacre issue, writes the legal opinion on General Musharraf�s return.
I am forced to write this note with a view to abreast people of the actual legal position as people are on their edges hearing claims that Gen. Musharraf is being taken to task, arrested and or tried for war crimes, and being extradited to Pakistan where he may be hanged, if returned.
I think British Society which is a very tolerant one, encompass all kind of views and respect them. However, as other exilees enjoy their freedom, similarly unfortunately, General Musharraf has the same freedom too, unless without prejudice a charge sheet is made out, and he is called to face a trial where fairness is guaranteed.
I am afraid Pakistan�s record is bleak when we come to that question (fair trial), and whosoever is in charge considers the meaning of fair trial to his own choosing and considers that all those charged and convicted received a fair trial, like in Be Nazir�s case (graft), and that of Nawaz Sharif�s (plane high jacking) and both were overturned by superior courts at a later stage. So a lot more needs to be done to come to that stage where Gen. Musharraf faces a trial which is in the eye of UK law is considered fair, where he is represented and is able to examine and cross examine witnesses and a judgement is handed down which is without a shred of a doubt, is either maligned or prejudiced or vindictive. Lets hope and pray we see that in our life time, that�s the core reasons Britain house many politicians under asylum laws who fear that a fair trial may not be guaranteed if returned by force.
On the question, Can British government hand over Gen .Musharraf to Pakistan, if asked, first of all, let me clarify that I have been a strong critic of General Musharraf in the past 10 years. However, here I am asked to give a legal opinion which I must give in all honesty. I think let�s not shift responsibility on court or other states. At best Musharraf is an accused in Pakistani jurisdiction, and until last official news he was given a �guard of honour� when he resigned. So unless Musharraf leaves voluntarily, that�s fine, otherwise unless Govt. of Pakistan makes up its mind whether to try him or not under Art.6 and on account of various criminal allegations, talk of his return by force is pre mature. It seems like a media stunt as the technicalities are far more complex.
If he is convicted in Pakistan even if as a result of a fair trial where opportunity to him was fairly given and he was represented, the issue before UK would be whether he faces a death penalty upon return. I think we are thinking way ahead, to me, the decision to try him is not anywhere yet. We have seen in the past that Imran Khan vowed to take action against Altaf Hussain on 12 May killings in Karachi, but so far no litigation is pending in the courts. Taking action against former President or a foreign dignitary who was a puppy to west and served them well since 9/11 without Govt of Pakistan�s support may be a good piece for newspaper but may not be practical at all. I think if Govt was interested at all, he should not have been allowed to fly out of the country.
I am very much interested to see a fair trial taking place against Gen. Musharraf for his crime of subverting the constitution on 12 October 1999, and 3 November 2007, but current day ruler who came as a result of �NRO� may not be able to do it. In principle, though it is possible if a dictator and or military ruler is involved in mass killings as part of a widespread or systematic attack, directed against any civilian population with knowledge of the attack. This would include offences such as murder (Akbar Bugti�s killing & Lal masjid operation), torture (Nawa Sharif and his family and treatment with judges and their families ), rape, severe deprivation of liberty in violation of fundamental rules of international law and enforced disappearance of persons (missing person cases), or involvement in Genocide (Baluchistan�s claims), Terrorist activities, or Organisations concerned in terrorism to advance political aims (5 April, 12 May, 18 October, 27 December 2007 incidents), if the answer is yes, he can be charged and tried here in UK too under existing Terrorism laws, and may be extradited to the state where those crimes have been committed or the country of his origin subject to some conditions. If state chooses, he can be referred to war crimes tribunal too, if there is a case of such nature.
Now the question arises if a criminal is wanted by host state and guarantee is given by way of �Memorandum of Understanding� that he will be offered a due process of law in the country of origin and a fair trial and he will not be tortured and or hanged (if convicted) without due process, can he be removed from UK. In theory the answer is yes and it has happened, in practice, but it is a long exhaustive exercise and involves a long legal battle, but the accused may be detained whilst this all the process is pending to curtain his criminal activities which occurred on last few cases in UK and Gen. Musharraf may claim human rights protection under article 2& 3 that he may be killed in Pakistan if returned or if sentenced he may face death penalty. And as if tried under Art.6 the sentence is �death penalty� for treason then I feel that he may not be handed over to Pakistan in the absence of any extradition treaty and due to Britain being a signatory to European Convention on Human Rights 1950 protocol (article 2a, schedule 6).
I think Pakistan�s situation is such due to �war on terror� and economic melt down and political divisions and polarisation that time for revenge and teaching lesson(s) is very little. Unless democratic forces sit together and see eye to eye with each other and Army, media and Supreme Court backs them, then at least a few wrongs can be put right to start with and only then a trial may take place of Gen. Musharraf. I hope that happens, one day.
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