You cannot have it both ways
For clarity’s sake, you should know Article 6 of the constitution and the Act of Punishment for High Treason and what they entail as well as the 2007 Proclamation of Emergency. We will leave most of the discussion on them for next week.
They apparently want to try Musharraf not for the army’s 1999 intervention and the first Provisional Constitution Order or PCO but for the 2007 emergency and the second PCO. The Proclamation of Emergency 2007 includes the prime minister, governors and the military high command, but not the judges, for the proclamation went against them. Therein lies a tale: if Musharraf is tried only for the 2007 emergency the judges will be off the hook but if for the 1999 countercoup they will hang high if found guilty. Do they think that that way they can keep themselves out of the fire? Treason is treason: if something is treason in 1999 it remains treason in 2007. Treason cannot be legal when it suits you and a crime when it suits you. You cannot have it both ways.
Is it that the army’s countercoup and the first PCO were legal in 1999 because the judges who gave it legitimacy and took oaths under it saved their jobs while the 2007 emergency and the second PCO were illegal because most of the first PCO’s judges lost their jobs? The conclusion is inescapable.
Article 6 says:
“(1) Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.
2) Any person aiding or abetting or collaborating [in] the acts mentioned in clause (1) shall likewise be guilty of high treason.
(2A) An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and a High Court.
(3) Majlis-e-Shoora (Parliament) shall by law provide for the punishment of persons found guilty of high treason.”
The High Treason Act says:
“An Act to provide for the punishment of persons found guilty of acts of abrogation or subversion of a Constitution or of high treason.
Preamble: Whereas it is necessary to provide for the punishment of persons found guilty of acts of abrogation or subversion of a Constitution or of high treason;
It is hereby enacted as follows:
1. Short title, extent and commencement:
(1) This act may be called the High Treason (Punishment) Act, 1973.
(2) It extends to the whole of Pakistan.
(3) It shall come into force at once.
2. Punishment for high treason, etc: A person who is found guilty:
(a) of having committed an act of abrogation or subversion of a constitution in force in Pakistan at any time since the twenty third day of March, 1956; or
(b) of high treason as defined in Article 6 of the Constitution, shall be punishable with death or imprisonment for life.
3. Procedure: No Court shall take cognizance of an offence punishable under this act except upon a complaint in writing made by a person authorised by the Federal Government in this behalf.
The Proclamation of Emergency of 2007 says:
WHEREAS there is visible ascendancy in the activities of extremists and incidents of terrorist attacks, including suicide bombings, IED explosions, rocket firing and bomb explosions and the banding together of some militant groups have taken such activities to an unprecedented level of violent intensity posing a grave threat to the life and property of the citizens of Pakistan;
WHEREAS there has also been a spate of attacks on state infrastructure and on law-enforcement agencies;
WHEREAS some members of the judiciary are working at cross purposes with the executive and legislature in the fight against terrorism and extremism, thereby weakening the government and the nation’s resolve and diluting the efficacy of its actions to control this menace;
WHEREAS there has been increasing interference by some members of the judiciary in government policy, adversely affecting economic growth, in particular;
WHEREAS constant interference in executive functions, including but not limited to the control of terrorist activity, economic policy, price controls, downsizing of corporations and urban planning, has weakened the writ of the government; the police force has been completely demoralized and is fast losing its efficacy to fight terrorism and intelligence agencies have been thwarted in their activities and prevented from pursuing terrorists;
WHEREAS some hard-core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated, were ordered to be released. The persons so released have subsequently been involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law-enforcement agencies subdued;
WHEREAS some judges by overstepping the limits of judicial authority have taken over the executive and legislative functions;
WHEREAS the government is committed to the independence of the judiciary and the rule of law and holds the superior judiciary in high esteem, it is nonetheless of paramount importance that the honourable judges confine the scope of their activity to the judicial function and not assume charge of administration;
WHEREAS an important constitutional institution, the Supreme Judicial Council, has been made entirely irrelevant and by a recent order judges have, thus, made themselves immune from inquiry into their conduct and put themselves beyond accountability;
WHEREAS the humiliating treatment meted to government officials by some members of the judiciary on a routine basis during court proceedings has demoralised the civil bureaucracy and senior government functionaries, to avoid being harassed, prefer inaction;
WHEREAS the law and order situation in the country as well as the economy have been adversely affected and trichotomy of powers eroded;
WHEREAS a situation has thus arisen where the government of the country cannot be carried on in accordance with the Constitution and as the Constitution provides no solution for this situation, there is no way out except through emergent and extraordinary measures;
AND WHEREAS the situation has been reviewed in meetings with the prime minister, governors of all four provinces, and with Chairman of Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice-Chief of Army Staff and Corps Commanders of the Pakistan Army; NOW, THEREFORE, in pursuance of the deliberations and decisions of the said meetings, I, General Pervez Musharraf, Chief of the Army Staff, proclaim Emergency throughout Pakistan.
2. I, hereby, order and proclaim that the Constitution of the Islamic Republic of Pakistan shall remain in abeyance.
This Proclamation shall come into force at once.”
We’re going to have great fun now for there is no way they can try Musharraf for treason for the 2007 emergency and second PCO and not for the 1999 countercoup and first PCO, for if the former had not been legitimized by the Supreme Court the 2007 emergency couldn’t have happened. You cannot legitimately ‘subvert’ the constitution in one instance and not in another. Subversion is subversion. What you have to determine is which subversion is greater, subversion of the constitution or of the state? The constitution is not the state, it is the state’s basic law begs for change when it itself subverts the state by its hypocrisy and contradictions.
Now many generals, including the current chief, judges, including the current chief justice, politicians, bureaucrats and others are going to be in the dock with Musharraf because they “aided, abetted and collaborated” with him in ‘subverting’ the constitution in 1999 and 2007. It’s going to be high drama Broadway style.
To say that they will try him for treason for the second emergency and PCO but not the actual army intervention and the first PCO is an insult to our intelligence. How can the same act be a ‘crime’ in the second instance but not the first? Or is it all about jobs: is it legal if our jobs are secure but illegal if they are not? Is that why the judges who secured their jobs after taking oath on the first PCO are pristine while those who took oaths under the second PCO are not? Is not every PCO the same as far as ‘subversion’ is concerned? I am amazed that people cannot see through such double standards.
The Clause 2A of Article 6 says that, “An act of high treason…cannot be validated by any court including the Supreme Court and a High Court.” This makes it incumbent upon them to include all those judges of the Supreme Court and those who followed them as potential traitors for aiding, abetting and collaborating with Musharraf in the 2007 emergency. Justice will be incomplete if they too are not tried with Musharraf. The dock shall be lonely; the guillotine still, for Robespierre’s head could be on the block too.
The Supreme Court can only determine guilt or otherwise. Punishment, if any, can only be determined by parliament. So it is imperative that parliament be in place on time.
The high treason act says that, “No court shall take cognizance of an offence punishable under this act except upon a complaint in writing made by a person authorized by the Federal Government in this behalf.” No complaint has been made by the federal government so what is the Supreme Court going on about? They are not even competent to ask (order?) the federal government to make a complaint. They should throw out the petition if and until the federal government does so. Else it will go down in history as gross vindictiveness.
The writer is a political analyst. He can be contacted at humayun.gauhar786@gmail.com