Daily Times

For the first time in the history of Pakistan, a special court announced the death penalty by a majority vote for a former army chief. The ISPR reacted against the judgment saying that a former army chief cannot be tried for treason and that Musharraf “can surely not be a traitor” as he has fought wars for the country.

Not only has he fought wars, but he has tried to impose the Kargil war without the permission of the prime minister and without taking his colleagues from the Army or Navy on board. The war was kept secret when he tried to involve the air force to give cover against the Indian air force. He was told that as Pakistanis claiming that it was the Kashmiri Mujahideens who were fighting the war, how could the air force give air cover.

Not only that he fought the wars but also created one at Kargil which was ill planned and had to be stopped with the help of Bill Clinton.

The other folly was the frontal attack on the judiciary by introducing a fresh PCO which would validate his coup. Like previous coups, under the doctrine of necessity, the way was shown by Justice Munir’s first notorious judgment which was used by many other dictators who followed.

Musharraf tried to get validation for his coup in the Zafar Ali Khan case. Khan had challenged the 1999 coup saying that it was unconstitutional and Musharraf couldn’t have dissolved the parliament.

In 1954, there was a bone of contention between then Prime Minister Mohammad Ali Bogra and Ghulam Mohammad, though he was picked by the latter himself. They had an issue on the framing of the 1954 Constitution. Just when the Constituent Assembly had almost completed framing the constitution, Ghulam Mohammad dissolved the Constituent Assembly in 1954 because he could not agree on the quantum of autonomy to the federating units (the issue still haunts Pakistan’s constitutional history).

This act of Ghulam Mohammad’s led to many legal controversies and the decision was challenged by Maulvi Tamizuddin in the federal court. He was the Speaker of the Assembly at the time and the president of the Constituent Assembly. The decision, given by a bench headed by Justice Munir, was in favour of Ghulam Mohammad.

This was the beginning of the capitulation of the judiciary in Pakistan by manipulating the bench where it was thought that Ghulam Mohammad would not be able to get a decision in his favour and by taking the cover of ‘doctrine of necessity’, which can be defined as the basis on which extra-parliamentarian forces could dissolve the Parliament and Cabinet.

This shows the level of intolerance in the society that a learned judge wrote in the judgment that the body should be hanged publically even if he dies a natural death. That distracted the whole media

Ghulam Mohammad was constantly in touch with Justice Munir. To get a favourable decision, he tricked Justice Shahabuddin into becoming the governor of East Bengal to change the composition of the bench using the excuse of national interest. Hamid Khan has narrated how this decision was maneuvered by the cunning Governor-General Ghulam Mohammad in his book The Constitutional and Political History of Pakistan: “Shahabuddin, being a well-intentioned person, did not understand the deception behind the move and reportedly said that he had no reason to doubt the judgment of the governor-general in such a matter and accepted the office. In this way, another conspiracy succeeded. When the Maulvi Tamizuddin case came up for hearing before the Federal Court, Shahabuddin was out of the Federal Court; SA Rahman, Chief Justice of the Lahore High Court at the time, was appointed in his place as an ad hoc judge of the federal court for hearing the case. Thus, Ghulam Mohammad and Munir had succeeded in their design to form a majority of the court in favour of the Federal Government.”

However, a dissenting opinion was given by Justice Alvin Robert Cornelius over the court’s decision. He argued that Pakistan was indeed an independent country within the Commonwealth. Justice Munir’s decision left a stigma on the role of judiciary in Pakistan and opened the violation of democratic norms.

At last, this chapter of misusing the doctrine of necessity was closed by the recent judgment of a special court sentencing Musharraf to death. I would be happier if he was convicted for the 1999 coup. It was with some vision that Article 6 of the constitution was inserted or else this way each head of the department of a ministry can claim that they are family and they should not be held accountable for their misdeeds.

Pakistan’s judiciary made a wise decision. The judgment was hailed by all the democratic forces of Pakistan, except for para 66, which said that Musharraf should be hanged for three days at the D-Chowk.

This shows the level of intolerance in the society that a learned judge wrote in the judgment that the body should be hanged publically even if he dies a natural death. That distracted the whole media.

Another good decision exposed how the extensions were granted to the army chiefs. While it was not a part of the army rule book, one wonders what would have been the outcome if previous extensions taken by the many army chiefs had been challenged in the Supreme Court. What was the legality of these extensions?

The writer is author of the book ‘What’s wrong with Pakistan?