Sacking judges is an act of high treason in Pakistan

25 Jun

MushThe government has finally come clear on a matter which is being considered of paramount importance for democracy, Pakistan style. Amid strong protests against unjust taxation in the next year’s budget, load-shedding and law and order issues, the new government has decided to prosecute former military ruler, Pervez Musharraf, for high treason under article 6 of the Constitution. The charge, if established, will lead to death penalty for Musharraf. The provision of the Constitution prescribes similar punishment for all those who aided or abetted in heinous crime of suspension or abrogation of the Constitution.

The development is interesting. Pervez Musharraf is guilty of high treason on two counts; the military under him staged a coup on October 12, 1999 and dismissed the government of Nawaz Sharif. At that moment, Chief of Army Staff (COAS) Gen Musharraf was not present in Pakistan; he was not even anywhere. He was in an airplane flying home from abroad. While he was in air, he was sacked and the pilot of his airplane was ordered not to land till the newly appointed COAS was securely installed in his place. The pilot was even asked to take the plane to India, a country bitterly hostile to Musharraf for Kargil operation which was a huge embarrassment to Indian government and India. Pakistan army reacted to this, captured the government and allowed Musharraf to land in Pakistan. Rest is history.

Second time Musharraf suspended the Constitution was when he proclaimed emergency on November 3, 2007. This second offense was aimed at getting rid of troublesome judiciary. No government was sacked this time and no parliament dissolved; it was judges of the superior courts who lost their jobs. They remained jobless as even the successor democratic government of Zardari was not willing to restore them. They were restored after street agitation started by lawyers and supported and sponsored by opposition parties.

The first act of suspension of the Constitution was widely aided and abetted by a cross-section of society; opposition under Benazir Bhutto welcomed it, 70% of the people on the street were jubilant, the Supreme Court endorsed it and the subsequent parliament validated it.  The second suspension was endorsed by the SC but when the sacked judges were restored they declared it as an act of high treason.

Imagine; abrogation of the Constitution, dismissal of elected government and dissolution of the parliament was not only acceptable, it was baptized as kosher by the judiciary. The judiciary was so magnanimous with the usurper that it gave him a blank check to amend the Constitution at will. Amendment of the Constitution, even the judges knew, was the prerogative of the elected representatives and that too with a two-third majority.

It seems that the judiciary which is Pakistan’s new establishment is bent upon settling its score with Musharraf. This has given a godsend opportunity to Nawaz Sharif not only to settle the scores with the generals but also to subdue the military in order to have a free-hand to deal with India, Afghanistan and the terrorists. This is evident from the fact that, at the expense of public interest, he has chosen to be the foreign minister and defense minister himself. This gives him an opportunity to flex his civilian muscle, a serious mistake which was first made by power-drunk Bhutto and then Sharif himself. The consequences in both the cases were disastrous.  No military in a country faced with external and internal threats can afford to be personal fiefdom of unscrupulous politicos.

Under the Constitution, trial under article 6 is to be initiated and concluded by none else but the federal government. The judiciary, however, is not prepared to take any chances. Setting aside the principle that in this particular case, the judges are aggrieved party themselves and they should demonstrate least interest as to how the government proceeds in the matter, it has in its infinite wisdom, decided to monitor the prosecution. Only yesterday, the honorable judges sought a step-by-step mechanism from the government for initiating high treason proceedings against Musharraf. It was very interesting to note that when attorney general informed the bench that the government would require a 30-day period to prepare a detailed mechanism, including who would investigate, who will prosecute, and who will be named as abettors in the treason case, the court observed that a one month period could not be granted because the government had in principle decided to proceed against those who had violated the Constitution. He said the mechanism should only seek to clarify how the process would be initiated and concluded.

The court has insisted time and again that only the act of November 3, 2007 constituted high-treason whereas Musharraf asserts that proceedings for this offense should start from 1999 when he actually abrogated the Constitution. The court is aware that the learned judges would be deemed as abettors and partners in the crime, if they were to prosecute Musharraf for his martial law.

The case has taken interesting turns. The top judges don’t want to dig the past which highlights their own role and want to focus on 2007 which made them jobless. In any case, this is evidently a case of conflict of interests. Their desire to monitor the prosecution proceedings and their interest to personally approve the procedure is, prima facie, a violation of principles of natural justice and would not augur well with judicial independence of Pakistan. This may have adverse consequences for the toddler called democracy, Pakistan-style.

 

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