The Nonsense of the Musharraf Treason Trial: Article 6, Discrimination and a Biased & Compromised JudiciaryNovember 23, 2013
Usman Sheikh – (APML-UK)
The below is a summary of the main issues the way I have understood them. For non-experts, it can be difficult to understand the legal issues and arguments. Barrister Farogh Naseem, on Rana Mubashir’s programme, has explained the legal issues in layman’s terms on a few occasions. The notes below are based on his lucid presentation along with material which I have gathered from other sources.
The purpose here is merely to relate the main points in a simple manner and, hopefully, demonstrate the ridiculous nature of this treason charge against Pervez Musharraf.
Readers are welcome to notify me of any possible errors.
1. Unethical Conduct of the Supreme Court
From the outset, we need to bear in mind four points:
i. Barely a month after Pervez Musharraf’s arrival in Pakistan, the Chief Justice of Pakistan, Iftikhar Chaudhry, issued a challenge, daring people to step forward and bring up charges against Pervez Musharraf.
Can you imagine the Chief Justice of a country behaving in this manner? Iftikhar Chaudhry has been overly politicised and compromised for years and he views Musharraf as his arch enemy. Chaudhry wants his revenge.
ii. For a long time the Chief Justice has been demanding the Federal Government to bring forth treason charges against Pervez Musharraf. When the government politely declined – such as for instance the Caretaker Government – the Supreme Court could not take no for an answer and maintained an argumentative behaviour with the Caretaker Government, insisting the latter bring forth treason charges against Pervez Musharraf, thereby allowing the ever so eager Supreme Court to proceed with the matter.
This is very interesting given the fact that in Pakistani law, the Supreme Court has absolutely no right to request – let alone demand – the Federal Government to bring forth charges against any individual or group. The Supreme Court cannot request, demand, pressurise and incite the Government to bring to its attention any case. Thus, by constantly pressurising the Federal Government to proceed with the treason charges against Musharraf, the Supreme Court is violating the law of the land and exposing its utterly biased attitude.
iii. Now that the Sharif Government, upon the repeated unlawful insistence and pressure of the Supreme Court, has decided to go ahead with the treason charges, Iftikhar Chaudhry has handpicked three judges to oversee this case. These judges, like Iftikhar Chaudhry, are also known to be openly hostile towards Pervez Musharraf and having close relations with the Sharif and Chaudhry families. Iftikhar Chaudhry is known to have been immensely favourable to these judges in the past.
iv. It seems that the FIA was not even given the chance to complete its investigation. While the FIA was just in the very initial/preliminary stages of investigation where not a single witness had been questioned, the Interior Ministry suddenly, out of the blue, ordered them to submit their report on the treason charge. In rush, a rag tag report was hurriedly put together and submitted to the Supreme Court.
2. The Case
The case of treason against Pervez Musharraf follows this logic:
In November 2007, Pervez Musharraf imposed temporary Emergency Rule in Pakistan. As a result, some sections of the Pakistani Constitution were temporarily suspended, or held in abeyance. This is said to be treason against the State because Article 6 of the Constitution of Pakistan states that holding the Constitution in abeyance is an act of treason.
3. Three Quick Responses
A. Article 232 of the Pakistani Constitution permits the President to impose Emergency Rule under certain situations. As long as the President is satisfied that a situation or a state of affairs exists which warrants Emergency rule, the latter can be imposed.
“Article 232 (1)
If the President is satisfied that a grave emergency exists in which the security of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency.”
Therefore, imposing Emergency Rule is not akin to “treason” as it is permitted by the Pakistani Constitution. One may disagree with the reasons for imposing the Emergency, yet imposing it is not “treason” or a “punishable crime” even if the underlying reasons are deemed to be weak.
Counter Response to the Above: Pervez Musharraf signed the text of the Proclamation of Emergency Rule as the Army Chief, not as the President. So whilst the President can impose Emergency Rule, the Army Chief cannot.
Rebuttal: Signing off a text with the title of Army Chief does not negate the fact that Pervez Musharraf was also the President of the State at that time. Pervez Musharraf’s powers and authority as the President did not temporarily vanish or take the back seat when he signed off a document as the Army Chief. His powers and authority as the President remained, irrespective of the specific title he used in a document.
B. In 2007, Article 6 of the Constitution did not state that holding the Constitution in abeyance or suspending it was an act of “treason.” This is the 2007 version of the text of Article 6:
“(1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.”
In 2010, however, through the 18th Amendment, the above text was altered as follows (italics added):
“(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.”
In 2007, suspending or holding the Constitution in abeyance was not an act of high treason. In 2010, however, suspending and holding the Constitution in abeyance became an act of high treason.
It is legally and rationally ridiculous to retroject this backwards to try Pervez Musharraf – or anyone else for that matter – for having allegedly committed “high treason.”
C. Those who have presumed Pervez Musharraf to be guilty of high treason convey the impression as if Pervez Musharraf was working in isolation, in a vacuum, making decisions on his own, with no other individual present in the scene. This scenario is highly unrealistic. The text of the Proclamation of Emergency Rule itself mentions the “prime minister, governors of all four provinces and with the chairman joint chiefs of staff committee, chiefs of the armed forces, vice chief of army staff and corps commanders of the Pakistan army” who deliberated upon the situation and then requested the President – Pervez Musharraf – to impose Emergency Rule in Pakistan. However, as far as I can tell, no one has been questioned. To successfully implement the Emergency rule, individuals (Civil Servants etc), judges and departments at all levels were required to play their part. None of them have been questioned. In fact, the Law Minister of that time – Zaid Hamid Khan – who played a pivotal role in designing and implementing the Emergency Rule in 2007 is presently a senior member of Nawaz Sharif’s party and was once again appointed as the Law Minister, only to be made to resign shortly thereafter due to the embarrassment caused on account of his role as the Law Minister in 2007!
4. Blatant Discrimination
Violation of Article 25 & 6: By having a go at Musharraf, the Supreme Court and the Sharif Government are violating Article 25 of the Constitution. Article 25 is the equality clause – it calls for a lack of discrimination. Likewise, Article 6 is also not being adhered to.
Two forms of blatant discrimination are being carried out:
i. Singling out an individual
Pervez Musharraf has been singled out as if he was operating in a vacuum. According to Article 6, aiders and abettors are to be charged and are to be treated equally:
Anyone directly/indirectly involved needs to be charged: Army officers, politicians, judges, bureaucrats, journalists etc.
- Article 6 is not applicable upon a single individual. It talks about a joint enterprise. Everyone involved in the conspiracy – be it directly or indirectly – is to be tried. There can be no picking and choosing
ii. Restricting the implementation of Article 6 to the November 2007 Emergency
The November 2007 imposition of temporary Emergency Rule is a comparatively very minor matter – compared to the actual Military (counter) coup of 1999. The latter is the main issue, not the 2007 Emergency.
Were it not for the fact that a Military (counter) coup transpired in 1999, the minor matter of the November 2007 Emergency would not have taken place.
In light of the High Treason Act, the application of Article 6 cannot be limited to the 2007 Emergency. The 1999 Military (counter) coup needs to be considered. Even then, Article 6 cannot be restricted to the 1999 Military (counter) coup. The dark era of the Zia regime also needs to be considered, including all prior Military takeovers.
Article 6 cannot be restricted to a regime/time period. If Musharraf is to be tried, then not only are you required to try all aiders and abettors involved in the 1999 counter coup, but you are also required to try every individual alive who aided, abetted and supported the worst dictatorship in Pakistan’s history – the Zia regime – including all Military regimes in the past. If Musharraf was wrong, then Zia was wrong. Zia cannot be “right” while Musharraf is “wrong.” Being selective – giving a clean sheet to one regime while targeting another – is a violation of Articles 6 and 25 of the Pakistani Constitution
According to the High Treason Act, from 1958 onwards, every military coup is to be considered and all involved – directly and indirectly – are to be tried and punished.
Thus, by singling out Pervez Musharraf and by restricting the proceedings to the comparatively very minor matter of the imposition of temporary Emergency Rule in November 2007, the Supreme Court and the Sharif Government are violating both Articles 6 & 25 of the Constitution and are also ignoring the High Treason Act, which permits the trial of everyone involved in a coup – whether directly or indirectly – from 1958 onwards.
Either all are tried or none are tried. Either all regimes are considered or none are considered. There must be across the board justice to ensure fairness and transparency. Picking and choosing should not be allowed
Counter Response #1: the Parliament validated the 1999 Army coup. Therefore, one has no choice but to be restricted to the comparatively minor 2007 temporary Emergency Rule.
Rebuttal: The 18th Amendment has made null and avoid the 17th Amendment. This means that the 1999 Military (counter) coup is open to investigation and no longer enjoys protection. Therefore, if we are to abide by the requirements of Articles 25 & 6 of the Pakistani Constitution and apply the High Treason Act, we are to charge each and every individual involved directly and indirectly in the 1999 Army coup and, moreover, all previous Army coups, including the coup carried out by the late Zia ul Haq. We are to try all individuals who worked, whether directly and indirectly, to maintain/strengthen the setup which came about after all Military coups. If we, however, decide to limit things to 2007 and merely single out Pervez Musharraf, we then blatantly violate the Pakistani Constitution.
Counter Response #2: Only a few individuals involved in the previous Military takeovers and regimes are presently alive. Therefore, there is really no point in dragging them to the court.
Rebuttal: It does not matter. Even if one individual is alive who aided, abetted and supported a Military takeover and regime, then he/she is to be brought before the law. Moreover, many who supported the late Gen. Zia ul Haq and played a critical role in supporting, maintaining and furthering his cruel military regime are still alive: for example, people such as Nawaz Sharif, Chaudhry Nisar, Shahbaz Sharif and many others. They are to be brought before the court and made to pay for their crime of violating the Pakistani Constitution.
A Probable Reason for Ignoring the 1999 Military (counter) Coup: Iftikhar Chaudhry was one of the judges who:
1. Legitimized the Military’s takeover of the Government using the “doctrine of necessity” argument
2. Was among the first judges to take an oath on the PCO in January 2000.
3. In April 13 2005, in the “Judgment on 17th Amendment and President’s Uniform Case,” Justice Iftikhar Chaudhry was one of 5 Supreme Court judges who dismissed all petitions challenging President Musharraf’s constitutional amendments. In a wide ranging judgment, they declared that the Legal Framework Order (LFO) instituted by General Musharraf after his suspension of the constitution, the 17th amendment which gave this constitutional backing, and the two offices bill which allowed Pervez Musharraf to retain his military uniform whilst being President, were all legal.
His falling out with former President Musharraf occurred only in 2007, when a reference against Iftikhar Chaudhry was legitimately forwarded to the Supreme Judicial Council for investigation.
Therefore, it seems that the 1999 Military (counter) Coup is being ignored because investigating it would mean that a large bulk of the judges – Iftikhar Chaudhry included – and almost all politicians will then be in deep trouble given the fact that they so openly supported, defended, legitimised and strengthened the 1999 Military coup and the subsequent setup for years.
Bottom Line: Army Officers, Politicians, Judges, Bureaucrats, Journalists all need to be tried and punished if they played any part – directly or indirectly – in supporting, maintaining, defending, strengthening and legitimising a Military takeover/regime.
- Corrupt and biased Judges such as Iftikhar Chaudhry, who legitimised the Army’s rightful counter coup of 1999, are to step down and justice should be served upon them with full force
- The current two times failed Prime Minister should immediately resign – along with all of his colleagues who aided and abetted the dictator Zia. They must then be brought before the law for violating the Pakistani Constitution multiple times
Pervez Musharraf has served Pakistan for over 40 years in the Pakistan Army. He has fought for Pakistan in wars, risking his life on numerous occasions, and has led the elite SSG Commando Unit of Pakistan. Later, he served Pakistan as the Chief of Army Staff, as the Chief Executive and, thereafter, as the President. He boldly represented Pakistan, aggressively fought for the case of Pakistan and continued to patriotically defend Pakistan in the international arena even after retiring from the Army and stepping down from the seat of Presidency.
Can we not see how patriotically Pervez Musharraf has defended Pakistan when in India and when facing off Indian journalists on the Kargil issue? Have we not seen how Pervez Musharraf has defended the Pakistan Army and the ISI in multiple gatherings in the Western world and during interviews on CNN, BBC and a host of other channels? Are we really blind to the incontrovertible fact that there is not a single Pakistani leader besides Pervez Musharraf who has so vigorously defended Pakistan?
What happens to the morale of the Pakistan Army when its highly patriotic former Chief is labelled a “traitor?” Were Ayub Khan, Yahya Khan and Zia ul Haq traitors? Zia ul Haq – responsible for the harshest dictatorship in the history of Pakistan – was loyally supported and aided by the likes of Nawaz Sharif who maintained the former’s dictatorial regime. Is nothing to be done regarding this?
It is shameful, to say the least, when a genuinely patriotic Pakistani such as Musharraf is accused of being a “traitor.”
It is even more shameful if the Pakistani nation remains silent and allows this travesty to pass by without a challenge.