Prosecuting Musharraf: popcorn anyone?

YASMEEN AFTAB ALI

_DSC0188Tighten your belts; hold on to the bag of popcorn and coffee you just got for yourself. The lights are about to be dimmed for the show to start. The story revolves around Article 6 under which Musharraf is to be tried. What? Get serious! You do not know what Article 6 is? I need to lay it out for you or you may not enjoy the picture to the full.
Article 6 Constitution of Pakistan 1973 reads as follows:
“High treason.—(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] 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.”
You need to assimilate this; the case to be heard against him is for emergency rule in 2007. Plain and simple. You are confused? That’s OK. I’m confused too. Yes indeed; it seems we agree that Musharraf invoked emergency rule in 2007 from the position of Chief of Army Staff. So yes, it was not a Johnnie walking off the street, casually strolling onto a TV set and announcing that emergency rule is now in place. It was a man who came to power in 1999 through a coup. The 2007 declaration of emergency was not the first time the Constitution was abrogated by him. This then, is the question I now pose to you:
Since year 2007 was not the first time offence at abrogating or subverting or suspending or holding in abeyance the Constitution was committed by the same individual. This “right” to do so flow from his position he held then, in 2007. Therefore, how come he is being tried for the second offence and not the first one committed in 1999 when he installed his government in the first place? Had that step not been taken, he would never have been in the position to commit the second offence – no? Yes? No? Wait, wait hold on for a second, was not the coup of 1999 validated by the superior court and later given formal consent to by the parliament?
The charge will hold Musharraf alone in violation of the law, to the exception of any and all others involved and also named in the Declaration of Emergency. It also does not seek to hold accountable those entrusted within Musharraf’s government. But wait, Article 6 (2) states: “Any person aiding or abetting [or collaborating] the acts mentioned in clause (1) shall likewise be guilty of high treason.” So if others supporting and abetting him are not charged and not made a part of the trial, is that kosher? I’m confused again. I can see so are you. Abetting is described as, “To encourage, incite, or set another on to commit a crime. This word is usually applied to aiding in the commission of a crime.” (Black’s Law Dictionary 1891-1991: Pg 5)
Here’s the twist in the story; PPP has asked the government to hold trial of Musharraf on treason charges for staging a military coup in 1999 and not 2007. Opposition Leader Syed Khurshid Ahmed Shah stated and I quote him, “The imposition of emergency on Nov 3, 2007 should be seen as a continuation of the 1999 coup.” (Published November, 20, 2013) A friend from the legal profession focused my attention to an interesting fact: if you have a copy of Constitution Of The Republic Of Pakistan by Justice Muhammad Munir, please open Volume 1, page 212, (PLD Publishers: 1996) it states the following, “The clause expressly provides that any subversion or abrogation of a Constitution since the 23rd day of March 1956 does not come within the prohibition against retrospective punishment…..The date 23rd March 1956 is significant. Its effect is to treat the 1956 Constitution as valid together with the manner in which it came to be enacted. Thus the series of the Federal Court Cases which resulted in the framing of the 1956 Constitution receives recognition of validity under the present Constitution”
If we can prosecute abrogation and/or subversion of the Constitution way back till 1956, why on earth did we not, ever? And it’s not just coup in 1999 by Musharraf that I’m talking about!  You look confused. It’s OK. So am I. The ‘Ouch Moment’ comes when we read that no superior court shall validate an act of High Treason explained in Article 6 above. Another ‘Ouch Moment’ when one reads that Parliament shall by law provide for the punishment of persons found guilty of high treason.” The government though has decided to draw from Supreme Court July 31, 2009 decision which held Musharraf alone responsible for implementation of emergency rule in November 2007. Since no specific punishment is laid out for committing an offence under Article 6, High Treason (Punishment Act 1973, LXVIII of 1973) was instituted. According to this anyone found guilty of subverting or abrogating the Constitution since the 23rd day of March 1956 or High Treason defined in Article 6 of the Constitution will earn a life imprisonment or punishment by death.
Another point of interest for the armchair warriors is the forthcoming retirement of the Honorable Chief Justice Iftikhar Muhammad Chaudhry. What will be the new ‘body language’ of a Supreme Court after he retires ask people on social forums and discuss in their drawing rooms. Some think, sunk deep in their armchairs in the evening, a profound expression on their faces, which they hope is how an intellectual must wear; smoking a pipe, a Habana or a cigerrete; these armchair warriors argue back and forth if the ‘new man in’ will have a ‘softer’ approach. Let me tell our armchair warriors that law is not something that changes application with one man gone.  This smacks of indignity of law and cannot be acceptable. Law must be allowed to take its course, irrespective.
Before the lights dim and story plays itself out, here’s part of a mail sent by….let’s just go to the opinion shared within, “Constitutionally this case can’t cross the fundamental question of whether the exercise of discretionary power under the constitution to impose emergency in the country, be even considered treason…..” Another mail says, “It is nerve-wrecking to count the number of times the Constitution has been twisted and turned to suit the needs of the ‘powerful’, from both civilian and military backgrounds. That is sadly our reality.” Yet another writes; “I hope the process of justice starts once and for all. However this would take a person like Khomeini. In Pakistan the justice is always selective.” Many on Twitter express views that the timing of the charges is an effort to distract people from the real issues of the country like terrorism, power issues; cuts have been temporarily arrested owing to change in weather but will attack with vengeance once summer sets in again-and this is simply scratching the surface. Let me hurriedly add before someone jumps down my throat; I am all for punishment. My observation is …well you’ve read what it is!
So now I’ve said my piece, right in time too. Curtains are going up. Pass the popcorn please!

The writer is a lawyer, academic and political analyst. She has authored a book titled A Comparative Analysis of Media & Media Laws in Pakistan.

 

Mail: yasmeenali62@gmail.com
Twitter: @yasmeen_9

This is a cross post from: http://www.nation.com.pk/pakistan-news-newspaper-daily-english-online/columns/26-Nov-2013/prosecuting-musharraf-popcorn-anyone

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Comments

  • Muhammad Abd al-Hameed  On November 28, 2013 at 1:57 pm

    A few words to help reduce your confusion. a) Mindful of Article 6, both Zia and “Musharraf only suspended” or “held in abeyance” the Constitution, as it was no crime under Article 6. They did not “abrogate or subvert” the Constitution. b) The 18th Amendment does not apply to Musharraf. Any act done before a law is passed does not come under it. c) Some people say that the second emergency (in 2007) was not approved by Parliament. Well, the Constitution did not require Parliament’s approval. It was only for the Supreme Court to declare whether it was invalid or not.

    As for the future, Musharraf will survive much longer than Nawaz Sharif. Muhammad Abd al-Hameed

    السلام علیکم و رحمۃ اللہ و برکاتہ!

    الله حافظ! *محمّد عبد الحمید* مصنف، “غربت کیسے مٹ سکتی ہے” (کلاسک پبلشر، لاہور) “دنیا” میں میرے کالموں کے لیئے http://www.mahameed-dunya.blogspot.com http://www.mahameed.blogspot.com/ /www.mahameed-articles.blogspot.com /www.mahameed-poverty.blogspot.com /www.mahameed-urdu.blogspot.com

  • a m malik  On November 28, 2013 at 5:22 pm

    The confusion YAA will continue, that even the judges that gave a way through to Musharraf were equally guilty of the same, including the Parliament of the time. But more important is the fact that the politicians must scratch themselves to find the causes of why in the first instance the coup takes place? And they will discover the coups are affects of numberless causes. and causes of numberless affects. All lie within the contours of their incompetence. It is the totally dissatisfied masses who keep hoping for the army take over, much that the politicians have been having hate campaigns against the army trying to make the masses swallow the so called democracy pill. In Turkey the politicians first proved their merit and then and only then were able to reign in the army. But if the politicians think that they can merely fall on the constitution to save their skin, then by joe this is not going to happen. If art6 did not stop Musharraf to take over then it will not stop any other to do so. There is already a simmer about the performance of the present rulers especially the Ishaque Dar fellow, who is totally unfit to be a Finance Minsiter instead of an Economist like Dr Mehboob, but it seems that MNS feels relatives are more important than the interest of the country. Let MNS correct himself before a Lord savior appears to sack the Parliament as happened in 1653 in England.

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