Daily Times

Musharraf’s trial for subverting the constitution is going to be a unique case and will certainly open new vistas and avenues of legal interpretation necessary to prove the offence of high treason. However, despite the vagueness of the nature of evidence so far gathered by the investigating agency, there are certain matters that agitate the mind of a common observer. In the original Constitution of 1973, Article six held only those people guilty of high treason who abrogated or subverted the constitution, or conspired, aided or abetted the commission of such acts. The 18th amendment to the constitution, however, amended this article by adding the words, “suspends or holds in abeyance” to the above acts so that the provisions of the constitution would not be thrown to the wind by usurpers on the pretext of its temporary suspension to wrest power and enforce their own set of rules to perpetuate themselves.

The vital point now is that Musharraf proclaimed emergency and suspended the constitution on November 3, 2007. However, the 18th amendment, through which the suspension or holding the constitution in abeyance was included in the offence of ‘high treason’, was enforced in April 2010, which means that, at the time of Musharraf’s action, the suspension or holding of the constitution in abeyance was not an act attracting the offence of high treason. In this view of the matter, there appears to be no case against Musharraf for which he could be charged for high treason. Even if, by a twist of some other act or law, the 18th amendment has been made to take retrospective effect, then that act or law must be a bad law, which cannot stand the scrutiny of the highest court, which has the power to take measure of such provisions that violate the fundamental postulates of jurisprudence according to which no act can be made a criminal offence retrospectively. Thus, Musharraf’s guilt or innocence has to be judged on the basis of the law or constitution that stood enforced at the time of his impugned action and not on the amended provision, which took effect subsequent to his action.

On the moral plane, it is to be seen that his earlier action of October 1999 — staging a coup and suspending the constitution — which was far worse than his second action of 2007, had not only been ratified by the Supreme Court (SC) but against all norms he was also allowed to amend the constitution as he saw fit for three years before the holding of elections. I respectfully submit that the court had no powers to confer legislative powers on an individual who happened to hold executive authority, especially when that individual was an army man in uniform at that time. Thus, by the court’s verdict, the individual was unwittingly made to believe that he was the law unto himself and could do and undo, make or unmake anything according to his own whim and discretion. And the court’s verdict had no small role in his nursing this notion, which later emboldened him to take his second action, now the main issue before the court.

If the most sacred institution of the state can become a prisoner of the spirit of expediency, then there is no surprise if its individuals, who are more fallible than the state, should show a greater susceptibility to become captives of that spirit. With the foundation resting on the shifting sands of expediency, the structure resting thereon can only be as evanescent as a fleeting illusion. The suspension of the constitution, as the court must have noted, in effect amounted to the same thing as its abrogation because it was a convenient phrase coined by shrewd dictators to escape the control of the law. The courts had already witnessed the reign of the dictator Ziaul Haq when, behind the façade of suspending the constitution, the dictator had in fact perpetuated his reign for nearly 11 years and only agreed to restore it under great public pressure by buying another term of five years in return for lifting martial law.

The evil of suspending the constitution should have been nipped in the bud in its very initial stages instead of letting it play havoc with the state and its institutions. When Zia played ducks and drakes with the constitution to perpetuate his reign, it should have been obvious that the next cavalier following his footsteps on the same pretext should have been stopped by the judiciary. Thus, the present case needs to apportion responsibility to everyone without exception, be it an individual or an institution, for becoming an instrument in the violation of the constitution. If this is not done this time, then posterity might be led to revisit all previous decisions to restore the lost dignity of the institution of justice.

Many skeletons are likely to pop out of the cupboard as a result of this trial. There are numerous instances of when things were taken up by the courts in haste and without notice to the other party, thus causing a miscarriage of justice. There are also instances where judges opted to sit in judgment in their own cause, which I need not dwell upon here for reasons of propriety. It is also to be seen under what law the judges were restored, and who, under the law, was competent to do so. Why has it taken the executive over four years to implement the decision of the SC, announced on July 31, 2009, whereby Musharraf was held responsible for violating the constitution? Does bringing this case against him at this stage carry the taint of mala fide? Does Article six require the composition of a special court and was reasonable time allowed to the high courts to nominate judges for the special court? These and many other questions might arise for which the special court will have to find answers.

.The writer is a former member of the provincial civil service and can be reached at zafar.aziz.ch@gmail.com