The fool in the eyes of the gods is one who does not know himself. Former president and army chief, Gen (r) Pervez Musharraf, lived in the illusory world of exaggerated self-importance and fancied himself as the saviour of Pakistan. He returned to the country confident that he would be welcomed by ecstatic multitudes and festooned with the fragrant roses of the season. He never anticipated that he would have to walk on a path strewn with thorns that would lead to his arrest and confinement as a prisoner in his own home in the suburbs of Islamabad.
Fate moves in mysterious ways and Musharraf’s time is now measured by appearances in three different courts of law. He has to answer for treason charges at the Supreme Court; for the house arrest of 60 top judges after the proclamation of emergency on November 3, 2007 at the Islamabad High Court; and for the murder of Benazir Bhutto at an anti-terrorism court which also ordered his formal arrest on Thursday.
His fall from the pinnacle of unmerited glory has been inaccurately portrayed as the final triumph of rule of law. In the excitement of the moment, people seemed to have forgotten that the writ of the state does not prevail in massive stretches of territory in the tribal regions, in most of Balochistan, and in the seven densely populated ‘no-go’ areas of Karachi.
Earlier, on April 19, the Senate passed a resolution demanding the initiation of legal proceedings for high treason against Musharraf. The novelty of a former army chief being brought to justice prompted several spirited politicians to insist that he ‘should be tried as a common criminal because everyone was equal before the law’. It seemed that the fundamental principle of justice that the accused must be presumed innocent till proven guilty no longer applied.
Yet many of the same political stalwarts had wholeheartedly welcomed Musharraf’s coup of October 1999 as a result of which an elected government was toppled and the constitution was held in abeyance. This was also subsequently validated by the Supreme Court despite Article 6 (1) of the constitution which affirms unambiguously: “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 other unconstitutional means shall be guilty of high treason.”
A precedent for this had been set in the Maulvi Tamizuddin case of 1955, when the Federal Court under Justice Muhammad Munir upheld the dismissal of the Constituent Assembly by Governor General Ghulam Muhammad. The Chief Court of Sindh had earlier pronounced against the dismissal citing provisions of the Government of India Act, which served as the interim constitution of the country. This ruling was subsequently overturned by the Federal Court on the grounds that the Government of India (Amendment) Act, 1954, had not become law as it was yet to receive the assent of the Governor General.
However it was in the Dosso case of 1958 that the notorious ‘doctrine of necessity’ was invoked for the first time in the constitutional history of Pakistan. The concept had been enunciated by Hans Kelsen (1881-1973) in his 1949 study titled ‘General Theory of Law and State’ in which he said that “a successful revolution is a law creating fact”. But long before Kelsen’s time, William Pitt declared in the House of Commons on November 18, 1783, that: “Necessity is the plea for the infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”
This has certainly been the experience of Pakistan. Though it is claimed that the doctrine of necessity has been buried forever after the Supreme Court judgement of July 31, 2009, its foreboding shadow continues to haunt the country. This was also mentioned on Thursday at the Supreme Court by Musharraf’s lawyer. The prevailing political uncertainty warrants a fleeting look at the Dosso case.
The essence of the case was that the respondent had been convicted by a Council of Elders under the Frontier Crimes Regulation, 1901, but this was set aside by the Quetta bench of the West Pakistan High Court for the reason that it violated Article 5 of the 1956 Constitution. The verdict was, however, annulled through a majority decision of the Supreme Court, again, under Justice Munir, on the premise that the basic law was no longer in force, thereby validating President Iskander Mirza’s abrogation of the 1956 Constitution.
In his explanation of the judgement, Justice Munir cited Kelsen’s theory and stated that “an abrupt political change” was, in effect, a revolution which created its own legality. The legitimacy thus accorded to the Iskander Mirza government was short-lived as it was toppled by Ayub Khan the next day.
Musharraf’s arrest is undoubtedly unprecedented but analysts ignore the reality that the judiciary has never delegitimised a serving military ruler. It was only in April 1972, four months after his ouster, that Yahya Khan was declared a usurper though the Supreme Court had validated his rule in 1969. Similarly, Musharraf’s imposition of emergency, suspension of the constitution and promulgation of the Provisional Constitutional Order on November 3, 2007 was declared “unconstitutional, unauthorised and without any legal basis…” by a 14-member bench of the Supreme Court on July 31, 2009. But this ‘historic judgement’ came 11 months after he was no long in power.
Soon after Musharraf’s incarceration, a columnist, who has the rare ability to churn out articles with little actual content but in flawless English, said to me: “All this prattle about the rule of law is absurd. Pakistan has, in fact, barely entered the 13th century.” He then handed me a note written in stylised italics which read: “No freeman shall be taken, or imprisoned, or outlawed, or exiled or in any way harmed, nor will we go upon him, except by the legal judgement of his peers or by the law of the land.” This, he explained, was clause 39 of the Magna Carta of 1215 and it was the foundation of law without which there could never be justice.
The columnist was convinced that Musharraf had been thoughtlessly arrested and revenge, rather than justice, had become the centre of public discourse. High treason may have been clearly defined in Article 6 (1) but the next clause specifies that “any person aiding and abetting” such an offence would be equally culpable. A chain of events fraught with unintended consequences could, therefore, be set in motion.
Similar fears were expressed last Sunday by the PML-Q chief, Chaudhry Shujaat Hussain, when he urged the government to tread with caution because a hasty decision would trigger hugely negative repercussions which would not be possible to control. He has been vehemently criticised for expressing such views by an influential segment of the media.
The caretaker government also felt that discretion was the better part of valour and told the Supreme Court on Monday that it would not initiate proceedings against the former president under Article 6 of the constitution. It explained that 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.”
The government that emerges from the May 11 elections will, therefore, have to grasp the nettle and decide whether or not to pursue the Article 6 charges against Musharraf. This is only the tip of the iceberg. Beneath the surface the hideous prospect of an economic meltdown goaded by the power crisis and incessant terrorist violence threatens the survival of the country.
It is doubtful whether the post-election setup will be able to effectively address these formidable challenges. This is because the same cast of unsavoury characters, which includes fraudsters, tax cheats and loan defaulters, will again dominate the next National Assembly. It is, therefore, unlikely that 2013 will herald a new era in Pakistani politics.
The writer is the publisher of Criterion Quarterly.
Email: iftimurshed@gmail.com
Keywords: Political science , Political issues , Political parties , Supreme court , National Assembly , Constitution , Judiciary , Elections , Gen Musharraf , Gen Ayub , Benazir Bhutto , Balochistan , Karachi , PMLQ