BENAZIR Bhutto was ready to exchange indemnity with Gen Pervez Musharraf five years ago. She succeeded in obtaining indemnity for herself and her husband last year from Musharraf who promulgated the controversial National Reconciliation Ordinance on the pretext of promoting national reconciliation.

It is not surprising, therefore, to observe the PPP considering granting indemnity to Musharraf, “if”, in the words of its law minister, “it is in the national interest” — even though the PPP's Senate leader, Raza Rabbani, has categorically stated that the coalition partners had agreed not to indemnify Musharraf.

The PPP's intention with regard to granting indemnity to Musharraf is best gauged from its proposed constitution amendment package. The package includes the text of Article 270AAA, which was first introduced by Musharraf himself as part of his Constitution (Amendment) Order in Nov 2007. Article 270AAA is similar to the existing Articles 270A and 270AA of the constitution, which are in the nature of indemnity provisions that validate enactments and actions of past military regimes.

The validity of inserting an amendment in the constitution by executive fiat remains moot, despite its judicial endorsement by the PCO Supreme Court in the Tika Iqbal Khan case(PLD 2008 SC 178). Unlike Musharraf's 1999 proclamation of emergency, which was validated in 2003 by a compliant parliament through the Seventeenth Amendment (Article 270AA), his 2007 proclamation of emergency and subsequent constitutional amendment have not been affirmed by parliament.

Hence the move to introduce Article 270AAA through parliament, which is now unlikely to succeed, given the fact that the sword of Damocles is no longer hanging over the parliament after Musharraf's departure. Under the changed circumstances, the PPP may not be able to muster the two-thirds majority required for a constitutional amendment. It may consequently resort to the promulgation of an ordinary law for granting indemnity to Musharraf as a quid pro quo for the NRO. The question, however, arises whether it can legally do so.

Parliament's power to legislate is delimited by the constitution. Article 237 thereof empowers it to make indemnity laws “Nothing in the constitution shall prevent [Majlis-e-Shoora (parliament)] from making any law indemnifying any person in the service of the federal government ... or any other person, in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan.”

It is evident from the opening phrase that the parliament is generally precluded from making indemnity laws and that it is only empowered, by way of exception made possible by Article 237, to make such laws and that too in respect of specified acts only.

A nine-member bench of the Supreme Court has in Liaquat Hussain vs. Federation of Pakistan (PLD 1999 SC 504) given an unequivocal judgment on the issue of indemnity. It has held that Article 237 does not cover indemnification for acts done during the period of martial law. The court observed that the constitution does not admit the imposition of martial law in any form and consequently held that the parliament cannot make any law indemnifying any person in the government in respect of any act done by him during the martial law period even for

the maintenance and restoration of order.

The court noted that indemnity clauses in the nature of Article 237 were also present in previous constitutions Article 196 in the 1956 Constitution, Article 233A in the 1962 Constitution and Article 278 in the 1972 Interim Constitution. Each of these articles contained similar provisions for indemnifying acts done during periods of martial law. The reference to martial law, however, was deliberately omitted from Article 237. Not only the omission of this term but also the introduction of Article 6 (high treason), which did not exist in any of the previous constitutions, in the 1973 Constitution led the court to conclude that martial law cannot be treated as part of the constitutional scheme of the current constitution.

The 2007 proclamation of emergency was a form of martial law since it was made by Musharraf in his capacity as chief of army staff and not in the exercise of his powers as the president under the 'Emergency Provisions' of the constitution. Parliament does not, therefore, have the power to grant him indemnity. He would not be entitled to any indemnity despite the PCO court's feeble attempt to justify such action on the basis of necessity in the above-noted case.

Its reference to the following observation by the Lahore High Court in Muhammad Umer Khan's case (PLD 1953 Lahore 528) represents archaic legal thinking “If martial law is a law and its limits are prescribed by necessity, then ... all acts done by the military which are either justified by the civil law or were dictated by necessity and done in flood [sic] faith will be protected, even if there be no bill of indemnity....” Reliance on this observation is misplaced in light of the express words of the constitution and the judgment in the Liaquat Hussaincase.

Besides the specific limitation imposed by Article 237, the parliament would also be faced with general constraints while enacting any indemnity law under the present circumstances. The parliament is bound to exercise its legislative authority in accordance with the constitutional principles of law-making.

Accordingly, it is incumbent upon the parliament to ensure that any law it makes does not disregard, violate or otherwise contravene the fundamental rights of the citizens of Pakistan. In the present case, it cannot be in the national interest to provide constitutional or legislative indemnity to Musharraf.

On the contrary, such a move would not be in accordance with the fundamental right of the equality of citizens as guaranteed by the constitution. It would be discriminatory since it would provide unequal protection of law to a single individual.

Given that indemnity is not possible, what then are Musharraf's choices? He could consider self-exile and seek political asylum. His omnipotent self-image may not, however, permit him to exercise this option. He may alternatively consider admitting his repeated constitutional and legal infractions — perhaps in part due to the advice of his legal team — and seek reconciliation on the basis of the truth (which principle is incidentally lacking in the NRO).

Judging from his self-righteous attitude and defiant resignation speech, it is unlikely that he will resort to this option. The only remaining option for him is to contest legal proceedings in a manner befitting an honourable soldier. As such, he must be ready to bravely face trial and, if found guilty, either suffer punishment or seek presidential pardon under Article 45 of the constitution.n

The writer, a former chairman of the Securities and Exchange Commission of Pakistan, is a lawyer based in Islamabad.

thassan@ijurist.org