It was wheels down in Bangkok last Sunday for the special aircraft carrying Prime Minister Nawaz Sharif to Thailand for a three-day visit which served no purpose. The prime ministerial jaunt was treated as a non-event by the Thai authorities and the local media. I was in Bangkok at the time and one could discern that the brewing storm in Islamabad had engaged public attention. Interior Minister Chaudhry Nisar Ali Khan had announced that former dictator General (retd) Pervez Musharraf would be put on trial for high treason under Article 6 of the constitution.
Since then a speculative tsunami has swept the political landscape of Pakistan. Opinions, conspicuous by a lack of objectivity, have been expressed. In the fray, the government has, for once, been unfairly accused of raking up the Article 6 proceedings against Musharraf in order to divert public attention from its many failings.
But closer to the truth is that the PML-N leadership had already committed itself to put the former dictator on trial after the legal formalities had been completed. This was affirmed by the prime minister in his speech from the floor of the National Assembly on June 24 when he announced that the attorney general had been instructed to the tell the Supreme Court that: “The federal government in line with the Supreme Court decision on the Sindh High Court Bar Association case, firmly subscribes to the view that the holding in abeyance of the constitution on 3rd November 2007 constituted an act of high treason.”
On a parallel track, the Supreme Court was informed by the government that a four-member FIA team would be constituted to investigate the allegations against Musharraf. When the report was received and if its findings so warranted, formal proceedings for high treason would be initiated against him through a special court as per the requirements of the law.
The FIA investigations have since been completed and this was what prompted Chaudhry Nisar to announce inaccurately, like an excited schoolboy, that a ‘commission’ was being established to try Musharraf. The print and electronic media eagerly lapped up every word, every syllable of what the interior minister had to say, and one or two of them even commented that, like all government functionaries, he was intolerably fixated on ‘commissions’ and ‘committees’ whereas the legal obligation was the formation of a special court.
The mistake was rectified by the law and justice secretary, Zafarullah Khan, who, in a one-page letter to the Supreme Court registrar, stated that the “Federal government has decided to invoke the powers vested in it under section 4 of the Criminal Law Amendment (Special Courts) Act 1976 (Act No. XVII of 1976) to establish a special court to try General (retired) Pervez Musharraf for various offences falling under section 2 of the High Treason (Punishment) Act, 1973 (Act LXVILLL of 1973).”
Till this point the law secretary’s letter was unexceptionable inasmuch as it sought to merely inform the Supreme Court that the FIA report had been received, and, as per the earlier undertaking by the government, it had decided to move ahead with the treason charges against Musharraf for which a special court would be established. But then there was the ill-disguised attempt to shift the responsibility of proceeding further to the Supreme Court: “The law provides that the special court shall comprise three serving judges of high courts. Since there are five high courts…therefore, it would be appropriate that the apex court may nominate three judges from the high courts for the said special court.”
The Supreme Court, however, saw through the game and did not take the bait. It acted swiftly on the law secretary’s letter and asked each of the five high courts to nominate a judge for the special court. The panel of names was sent to the federal government which alone would be responsible for the constitution of the special court.
Although a three-member special court has since been formed, a PML-N insider confided to me on Thursday that there is considerable nervousness within the party leadership. He explained: “There is uncertainty what the reaction from the GHQ will be and this becomes all the more acute because a new army chief will be in place next week. It is anyone’s guess how things will pan out. Don’t also forget that one of our ministers was Musharraf’s law minister when he imposed the November 3, 2007 emergency.”
He became suddenly morose and added: “The destabilisation of the country looms large and many heads could fall if the legal process is carried through. We politicians have an irresistible urge to express our views on all issues but we seldom weigh the consequences.” He was not far wrong. On April 19 – several days before the PML-N unexpectedly won a convincing majority in the May 11 elections – the Senate passed a resolution demanding the initiation of legal proceedings against Musharraf for high treason.
Better sense was, however, demonstrated by the caretaker government. It told the Supreme Court on April 22 that it would not initiate charges under Article 6 of the constitution against the former military dictator for the November 3, 2007 emergency because the interim setup “should avoid taking any controversial step and should not commit (itself to) any process that is not irreversible by the incoming elected government.”
Several years prior to the emergence of Bangladesh, a former chief justice of the Dacca (Dhaka) High Court, Justice S M Murshed, was convinced that the foundation of law rests in the acquiescence of citizens in the thesis that it must be obeyed for the good of all. It is in such a sense that “its voice is regarded as a kind of universal harmony.”
No one can possibly disagree with the dictum that justice must not only be done but also be seen to be done. The implication is that there cannot and must not be any selectivity in the application of the law. This is what makes the high treason proceedings against Musharraf far more complicated than it seems at first glance. The reason is the stipulations of Article 6 (2) as well as the text of the declaration of the November 2007 emergency.
Article 6 (1) reads: “Anyone who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert, the constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.” Article 6(2), however, makes it clear that “any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason.”
The question of whether or not Musharraf acted alone in suspending the constitution is answered by the text of the proclamation of emergency which identifies the “prime minister, governors of all four provinces, chairman of the joint chiefs of staff committee, chiefs of the armed forces, vice chief of army staff and corps commanders of the Pakistan Army” as co-sponsors.
Yet it was Musharraf alone who was singled out by the 14-member bench of the Supreme Court in its judgement of July 31, 2009 which ruled that the declaration of emergency was “unconstitutional, unauthorised and without any legal basis.” The verdict was pronounced eleven months after the military ruler was constrained to step down from his high pinnacle. The precedent of judgements against fallen dictators was established much earlier. In April 1972, four months after his ouster, General Yahya Khan was declared a usurper even though the Supreme Court had validated his rule in 1969.
In a few days the trial of Pervez Musharraf will be underway and no further comment can be made on the allegations against him. While leafing through a compendious volume on the 1973 constitution, I came across a comment that the inclusion of Article 6 in the basic law of the land “is admittedly an innovation – probably with no parallel anywhere.” This was necessitated because of the sad and painful constitutional history of Pakistan. It was the sordid events of bygone years that once prompted former chief justice Muhammad Yaqub Ali to comment: “a perfectly good country was made into a laughing stock.”
The writer is the publisher ofCriterion Quarterly.
Email: iftimurshed@gmail.com
S Iftikhar Murshed, "The echoes of November 2007," The News. 2013-11-24.Keywords: Political science , Political issues , Supreme court , National Assembly , Dictatorship , Constitution , Gen Musharraf , Gen Yahya Khan , PM Nawaz Sharif , Sindh , Dhaka , Bangkok , GHQ , PMLN , FIA