These are the sacrosanct principles of justice without which rule of law cannot prevail. But on June 24 when Prime Minister Nawaz Sharif announced from the floor of the National Assemblythat the former president and army chief, General Pervez Musharraf, would be tried for treason under Article 6 of the constitution, it is clear that neither he nor the members of parliament, who enthusiastically applauded the decision, understood the implications. They had not bothered to carefully read Article 6 or think through the implications of the charges against the fallen dictator.
Article 6 contains three clauses, the first of which reads, “Any person 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.” Although the offence is serious enough to warrant the death penalty or life imprisonment under the High Treason (Punishment) Act, 1973, Article 6 has been selectively applied on the two occasions that Musharraf violated the constitution during his nine-year rule.
The first, and by far the more serious, was his coup of October 12, 1999, when he ousted the elected government, imprisoned Prime Minister Nawaz Sharif and held the constitution in abeyance. But in the Zafar Ali Shah case, the Supreme Court bench, which included the current chief justice, validated the coup despite the clear wording of Article 6(1). This was subsequently rubberstamped by parliament through the17th Amendment.
The second occasion was the November 3, 2007 declaration of emergency accompanied by the suspension of the constitution and the promulgation of the Provisional Constitutional Order (PCO). A few days later, Musharraf announced seven constitutional amendments for no higher a motive than to legalise his actions. This is laid bare by three of the amendments.
First, all acts done by the president and army chief could not be challenged by any court of law; second, the Supreme Court was empowered to withdraw any case being heard by the high courts, and; third, the judges who had taken oath under the PCO were deemed to have done so under the constitution while those who had refused were summarily dismissed. The axe thus fell on some sixty judges, including Chief Justice Iftikhar Muhammad Chaudhry, and a ‘new’ Supreme Court headed by Justice Abdul Hameed Dogar emerged.
It is for the 2007 emergency, but not the 2009 coup, that Musharraf alone is being charged for treason although Article 6 (2) clearly states that “any person aiding or abetting” the abrogation or subversion of the constitution “shall likewise be guilty of high treason.” The bias becomes startlingly obvious because the text of the declaration of emergency identifies the “prime minister, governors of all four provinces, chairman 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.
Similarly, the Supreme Court judgement of July 2011 singled out Musharraf for the 2007 emergency, but exempted the persons named in the proclamation. The former president’s lead counsel, Ahmed Raza Kasuri, is, therefore, justified in demanding that the ambit of the trial be broadened to include those who aided and abetted the imposition of the emergency. But the issue is far more complicated because a strict application of Article 6 (2) will incriminate many other people, including members of the judiciary.
For instance on November 23, 2007, a seven-member bench of the Supreme Court validated the emergency in a three-page judgement on the ground of necessity.
In a display of legal acrobatics, the events of November 3 were described as “extraconstitutional steps” as opposed to “unconstitutional”. But the court also realised that there were limits to the extent it could be supportive of Musharraf and, therefore, endorsed the emergency on “condition that the country shall be governed, as nearly as may be, in accordance with the constitution.” The vagueness of the formulation was fraught with the possibility of generating bitter controversy.
Even worse the short order goes on to state, “In the absence of parliament, General Pervez Musharraf…may perform: All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it.” In their collective non-wisdom the seven judges empowered a single individual the right to amend the constitution although the basic law clearly stipulates that amendments can only be brought about through a two-thirds majority in each of the two houses of parliament.
The attorney general of Pakistan at the time also chimed in that the Supreme Court’s validation of the emergency could not be torpedoed by a future parliament. The assertion defied all normative parameters of constitutional law. Even Ziaul Haq had sought parliamentary endorsement for his coup under the 8th Amendment while Pervez Musharraf, after toppling the second Nawaz Sharif government in October 1999, obtained the approval of parliament through the 17th Amendment. The 18th Amendment provides protection to the judges who took oath under the PCO but is conspicuously silent about the coup.
But no such parliamentary sanction was possible for the events of November 2007. Therefore, in its validation of the emergency the Dogar Supreme Court also described the measures as a “constitutional deviation” and added: “…this court may, at any stage re-examine the continuation of the Proclamation of Emergency if the circumstances so warrant.”
A PML-N parliamentarian, whose speeches are conspicuous by little learning and much morality, believes that the absence of parliamentary endorsement for the 2007 emergency is the chink in Musharraf’s armour and should be exploited. But saner voices within the ruling party consider the move ill-advised and fraught with unintended consequences.
A worried PML-N insider confided to me that, contrary to what the media had been reporting, it was not clear if Nawaz Sharif had taken the army chief into confidence about Musharraf’s trial and it is uncertain how the military will react. As expected Shaikh Rashid Ahmed, the leader of the Awami Muslim League, has predicted that the government has sown the seeds of its own dissolution and may not be able to survive for more than six months.
Shaikh Rashid has reason to be concerned because he was information minister when the emergency rule was imposed and had vigorously defended the decision and thus he may also be roped in the trial. Equally vulnerable under Article 6(2) is a member of the current federal cabinet who, as Musharraf’s law minister, had provided the legal justification for the “constitutional deviation.”
These are published facts that have faded from memory. But they are of particular relevance at this point in time. Since its emergence in 1947, Pakistan has been a victim of its own follies. Like vultures hovering over a desolate Tower of Silence where Zoroastrians leave their dead, the country’s leadership across the political spectrum are eager to devour the disgraced dictator who has already died a political death.
If the treason charges are pursued against Musharraf, then many other heads could roll under Article 6. A saner course may well be to let the past bury its own dead.
The writer is a former ambassador and the publisher of Criterion Quarterly. Email: iftimurshed@gmail.com
S Iftikhar Murshed, "The towers of silence," The News. 2013-07-24.Keywords: Political science , Political process , Military-Pakistan , Punishment act-1973 , Judicial process , Constitution 1973 , Supreme court , 17th Amendment , Judiciary-Pakistan , 8th amendment , PM Nawaz Sharif , Ahmed Raza Kasuri , CJ Iftikhar , Abdul Hameed Dogar , Gen Musharraf , Gen Zia ul Haq , Zafar Ali Shah , Pakistan , PCO , PMLN