The government has finally decided to try Gen (r) Pervez Musharraf for high treason and for subverting the constitution on November 3, 2007. The former military ruler is about to face what would be a historic trial in the politico-legal history of Pakistan. It will also have serious consequences on the future role of the army in the country’s politics.
Because of the very nature of the act, it is not difficult to predict the outcome of the proceedings of the special court. But the situation is more complicated than that. The accused stands on quiet a significant plane – he has the dishonor of holding the constitution in abeyance twice. The first such move on 12th October 1999 was against a civilian government. The second one, in November 2007, was more against the judges of the Supreme Court.
The right to try for someone for the offence of high treason exclusively rests with the federal government. A citizen of Pakistan cannot lodge a complaint or petition before a judicial forum, and the Supreme Court cannot take cognizance of the offence on its own, although the act of subverting the constitution ipso facto involves a violation of fundamental rights.
This exclusive right also gives the federal government the discretion to select the actions and persons against whom proceedings would be initiated. But does this discretion allow the government to apply the law discriminately upon some actions and persons while condoning or ignoring others?
When Musharraf and his aides first took over the government and held the constitution in abeyance, the prime minister and his loyalists were put behind bars. When the matter was taken to the Supreme Court, it validated the unconstitutional actions of the general, and even allowed him to make changes to the constitution. After the 2002 general elections, the parliament gave a constitutional cover to the military takeover.
Musharraf then continued to rule the country as the de facto executive head in presence of an elected government, until he decided (ably supported by his aides) to impose an emergency on 3rd November 2007 by holding the constitution in abeyance for the second time and deposing the judges of superior judiciary, including seven judges of the Supreme Court. The emergency was short lived and was lifted a little more than a month later on 15th December.
It is an undeniable fact that the 2007 emergency was imposed for the sole objective of deposing certain judges of the Supreme Court, while during the 1999 coup the constitution was held in abeyance, fundamental rights were suspended, a democratic government was toppled, the judiciary as an institution was compromised, which in turn allowed the dictator to meddle with the constitution to extend his power and control on state institutions and resources. He could also influence the outcome of the general elections of 2002. The new parliament became an institutional manifestation of the dictator’s will, and consequently gave constitutional cover to his 1999 takeover.
Furthermore, the emergency of 2007 was not independent but was an extension and continuation of the military rule that began after the takeover of 1999. Can the government apply the doctrine of severance to a chain of events? Can the 2007 emergency be singled out as an independent event?
The argument that the actions of October 1999 were given a legal cover as well as constitutional protection by the 17th Amendment does not hold ground, because Section 2 of the 18th Amendment Act of 2010 repealed all the PCOs and LFOs that had been passed by the military dictator as well as the 17th Amendment of 2003, consequently removing the constitutional cover and the judicial protection to Musharraf’s 1999 actions.
A significant difference between the 1999 coup and the 2007 emergency is that it might not have been possible to blame one individual for the events of 12th October 1999. A trial of all those involved in the 1999 coup would have been much more challenging.
Whatever be the outcome of the proceedings of the special court, the original sin of 12th October 1999 must neither be ignored nor overlooked.
The writer is an LLM scholar and a faculty member at the University of Peshawar law college