“Article 6 remained a mere painting, to be looked at” — Justice Shahid Karim

POLIO and the threat of military dictatorships were dying monsters in the 20th century but they still flourish in a few countries like Pakistan. In the 21st century, it is indeed shocking to have a government, a military elite, so-called constitutional lawyers, a mainstream media and confused liberals being critical of a landmark judgement convicting retired Gen Musharraf for treason. Instead of hailing this historic judgement that is deserving of unqualified national celebration, the two heroic judges, Justice Waqar Seth and Justice Shahid Karim, who convicted Musharraf, are being criticised by some who are asking strange questions as part of a specific agenda.

Courage and jurisprudence: Is judicial courage historically more important than producing great judgements? Former chief justices of Pakistan, Muneer and Cornelius, were brilliant legal minds but were also active and unapologetic collaborators of the Ayub and Yahya military dictatorships. Paradoxically, Justice Waqar Seth may not be a great judgement writer like Muneer and Cornelius, but his verdicts nullifying unjust military court convictions, declaring the detention of hundreds of persons unconstitutional, and finally, convicting Musharraf are historic. To paraphrase Justice Shahid Karim, it is an attempt by judges to rectify history by removing the judicial shame of legitimising past military dictatorships. In such treason cases, judicial reasoning is relevant but always subordinate to judicial courage.

It was an attempt by judges to rectify history by removing the judicial shame of legitimising past military rule.

Semantic treason game: The key defence of Musharraf goes like this: in 2007, Musharraf didn’t subvert the Constitution by use of force or through other unconstitutional means but only held it in abeyance/suspension. This only became a treasonous offence in 2010 via an amendment in Article 6. In essence, Musharraf suspending the Constitution in 2007 was not treasonous because holding the Constitution in abeyance/suspension is completely different from subverting it.

Justice Nazar, who dissented and acquitted Musharraf in the treason case, accepts this surreal semantic game played by Musharraf’s defence. Justice Shahid Karim, exposes this semantic fraud by the following impeccable logic: firstly, three Supreme Court judgements in the Sindh High Court Bar Association case (2009), Gen (retd) Pervez Musharraf case (2014) and the Hameed Dogar case (2016) have already given findings that the Nov 3 emergency was an unconstitutional act of treason and the special court was bound by these Supreme Court judgements, and only the guilt and punishment of Musharraf were to be determined.

Secondly, the treason clause “is to be vigorously and sympathetically enforced out of respect to the lessons of history … Semantics alone could not nullify the effect of Article 6”. In essence, holding the Constitution in abeyance/suspension is simply another form of subverting it by other unconstitutional means; this was constitutional treason in 2007. An amendment in 2010 by including the term ‘holds in abeyance’ in Article 6 is merely an overlapping or clarifying amendment

Thirdly, the accused Musharraf “to stunt the effect of Article 6 … used the term ‘held in abeyance’”. So, to accept this semantic fraud is to reward the unconstitutional games of Musharraf and to invite all future military dictators to subvert the Constitution by inventing new semantic terms.

Fair trial par excellence: Even Justice Nazar, who acquitted Musharraf of treason, does not hold that Musharraf was denied a fair trial. Moreover, the absurdity and falseness of Musharraf’s alleged violation of a fair trial becomes obvious once the relevant facts are examined.

Firstly, the complaint was filed on Dec 12, 2013, before the special court; the charge was framed on March 31, 2014; the prosecution evidence stood recorded on Sept 18, 2014; and he was declared a proclaimed offender on July 12, 2016. In short, the recording of Musharraf’s defence statement was pending for the last nearly five years; the special court was so lenient that it waited for nearly five years for the accused to appear at his own convenience.

Secondly, “to stop further proceedings of the trial … would amount to putting a premium on the fault of the absconder”, declared Justice Mansoor Ali Shah in the Supreme Court order dated April 1, 2019, and gave a final chance to Musharraf to record his statement — otherwise the special court was directed to proceed in his absence. This order was passed in the presence of Musharraf’s lawyer and after that, the special court had no option but to conclude the treason trial with or without Musharraf’s presence.

No guilt sharing: Musharraf’s other defence was one of shared guilt, ie you can only try Musharraf for treason if you try his aiders and abettors, namely, all corps commanders and the federal cabinet. Justice Nazar, in his dissent, accepts Musharraf’s defence on the basis of speculation, blaming parliament for betraying the judiciary and letting off Musharraf by amending Article 6. The legal logic in Justice Nazar’s theory is difficult to understand. Musharraf’s shared guilt defence is easy to refute because this issue had already been decided by the Supreme Court in the Hameed Dogar case as far back as 2016, in the presence of Musharraf’s lawyer, by directing that only Musharraf was to be tried in this treason case. After this order, the special court had no option but to reject this defence of shared guilt.

Flogging a dead horse: From a legal point of view, it is difficult to comprehend the huge fuss about the unconstitutional and brutal punishment specified in para 66 of the judgement. Firstly, para 66 is a part of the minority judgement, thus, is to be legally ignored and is not implementable. Secondly, as it is part of the minority judgement, it is like a legally dead para against which even an appeal is not required to be filed. Therefore, the real motive behind raising the bogey of para 66 is a classic counter-revolutionary strategy to discredit this entire historical achievement. In short, an insignificant and irrelevant part of this historic judgement is being used to distract and protect the dinosaur of military dictatorships.

If we as a nation have finally decided to banish military dictatorships then this judgement should be both protected and celebrated.

The writer is a lawyer.

Published in Dawn, January 4th, 2020