AT last a conviction for high treason has been recorded and, hopefully, Article 6 of the Constitution can no longer be dismissed as a dead letter. After a six-year trial, the year 2019 saw General (retd) Pervez Musharraf being awarded capital punishment for “abrogation of the Constitution ... and dismantling of the judicial system.”

Since this is the first case of its nature and the result has caused a dangerous schism in the country, an unemotional reading of the verdict is necessary.

In his leading judgment, Justice Waqar Seth, President of the Special Court, begins by offering a chronology of events, and deals with the issue of jurisdiction and the various attempts by the accused to challenge the proceedings. The accused appeared before the court on February 16, 2014, when the five-point charge was read out to him. He pleaded not guilty. After he failed to appear on a number of dates, he was declared a fugitive from law on July 12, 2016.

Justice Seth then addresses the question whether the accused could be tried in absentia and how his statement under section 342 of CrPC was to be recorded. He relies on Supreme Court rulings to the effect, under section 9 of the Special Courts Act, that the accused could be tried in absentia, and that he had forfeited the right to make his statement. Finally, he relies on the SC observation in Yousuf Raza Gilani case: “… as a court of law, we cannot base our judgments on the anticipated consequences of our decision, else we will be reverting to the malignant doctrine of necessity which has already been buried, because of the valiant struggle of the people of Pakistan...”

In the verdict, Justice Seth finds the accused guilty and sentences him to death on each of the five charges. In the final paragraphs – the infamous para #66 – he grapples with the possibility of enforcing the judgment if the convict dies before submitting himself to law, and invites censure for ordering the hanging of the convict’s corpse in Islamabad.

The infamous Para # 66 shows the extent to which a judge’s thinking seems to have been affected by regression in the overall national mindset.

Justice Shahid Karim agrees with the judgment of the court’s president, except for paragraph 66. He discusses the application of treason laws in various national jurisdictions, especially the convictions handed down in South Korea and Greece. He also takes note of the opinions of some US judges (Marshall and Holmes) and the discussion on the law of treason among scholars of repute. Incidentally, they include Tayyab Mahmud, an eminent Pakistani scholar who was hounded out of the country by the Zia regime.

This part of the judgment is of considerable value to students of law and all those who are interested in developing treason provisions as a deterrent to subversion of constitutional order.

Justice Nazar Akbar’s dissenting judgment should also be perused with due deference. He disagrees with Justice Seth all the way. An important issue he raises is the application of the 2010 version of Article 6 to events of 2007. (There is a reference in the judgment to the claim that all treason laws have retrospective effect.) He concludes that the prosecution has failed to make out a case of high treason against the retired general.

It is symptomatic of our times that the verdict has generated a fierce controversy. As soon as the Special Court’s short order was announced, the army spokesman deemed it prudent to declare that the whole force had been shocked and angered by the verdict. The government’s principal law officer took the cue and criticised the judgment on the ground that the court had not followed the due process. The various arms of authority competed with one another as to who could shout the loudest in denunciation of the verdict. It was asserted that a person who had served as COAS and president could not have committed treason or that it was sinful to ignore Pervez Musharraf’s 40 years of service to the country, or that it was wrong to award death sentence to a man who was lying in a hospital’s ICU in Dubai.

The line of attack changed when the complete judgment came. Para #66 in Justice Waqar Seth’s judgment was picked up by the government and its allies as the absolute proof of the court’s perfidy. Even the outgoing chief justice of Pakistan was made the target of calumny.

There is little doubt that Para #66 mars the special court’s judgment and it will haunt the judiciary for quite some time. But this paragraph is not supported by majority opinion; it is not legally enforceable. And it cannot vitiate the essential findings. Instead of venting venom against Justice Seth, it might be better to determine the extent to which a judge’s thinking has been affected by the regression in Pakistani people’s mindset over the last 40 years.

It is clear that Musharraf created problems for himself by choosing to run away from justice. The government too contributed to its own discomfiture. It didn’t consider the possibility of withdrawing the case and the tactics it belatedly used, such as the disbandment of the prosecution team, were designed only to delay matters.

For all its strengths and weaknesses, the judgment should not have divided the nation. For the divisive controversy, the blame lies with those who insist on casting the destroyers of the Constitution in a heroic mould.

It is possible that this judgment of historic importance will remain unimplemented, even if the efforts to get Musharraf exonerated in appeal fail. The reason is that the government looks determined to wriggle out of its obligations and the defenders of the judgment lack the means to persuade it to change track. This unhappy situation is due to a fundamental disagreement between the democratic and authoritarian camps. While the former would like the sanctity of the Constitution to be upheld under all circumstances, the latter tends to justify demolition of constitutional order for what it considers desirable ends.

A more worrisome lesson of the case is that the citizens, who have already been alienated from democracy, have shown little interest in defending the Constitution. This may be due to several factors: the ease with which coup-makers have been getting away with treason; the increase in the political clout of collaborators and beneficiaries of authoritarian regimes; and the failure of the supposedly representative regimes to establish their legitimacy and demonstrate their capacity to live by the Constitution.

Thus it may be some time before exemptions to accountability for treason can be completely eliminated. The importance of the present case will always lie in the fact that the first crucial step towards that ideal has been taken. And 2019 was the year when it all happened.

Published in Dawn 2019 Year Ender