Wednesday Dec 18, 2019
The 1973 Constitution is no more just a ‘piece of paper’. It can no longer be tossed in the wastepaper basket by military dictators the likes of General Zia-ul-Haq and General Pervez Musharraf, to name a few.
Neither is the present judiciary the same as that prior to 2009.
On Tuesday, a specially-constituted court in Pakistan made history. It concluded a case, dragging on for six years, invoked Article 6 of the constitution and found a former president and army chief guilty.
Musharraf, who is currently undergoing treatment in United Arab Emirates, has a right to appeal the verdict. But that fact that he will most likely take this very verdict to a higher court is in itself a milestone that will go a long way in establishing constitutional supremacy and rule of law in the country.
In the recent years, the judiciary has emerged as a strong and powerful pillar of the state. This decision in Musharraf’s case is another bold step in that direction.
Had our superior judiciary made such pronouncements in the past, and not just followed the ‘doctrine of necessity’ as was the case in 1955, when the apex court ruled in favor of dismissing Pakistan’s first constituent assembly in the Maulvi Tamizuddin Khan case, the country’s democratic and judicial history would have been different today. It would not have witnessed four military rules. The only judge to dissent in 1955 was Justice Alvin Robert Cornelius.
Fast forward to 1971, when the Supreme Court, in the Hina Jilani case, declared martial law illegal and unconstitutional. Still, within six years, General Zia-ul-Haq sacked the elected government of Zulfiqar Ali Bhutto and imposed martial law on July 5, 1977. The constitution was abrogated again. When Bhutto’s wife, Begum Nusrat Bhutto, challenged the military dictator, Pakistan’s highest court declared the dictatorship legal under the “law of necessity” in 1981.
History then repeated itself 21 years later. On October 12, 1999, military officers took over the country and sacked Prime Minister Nawaz Sharif.
Maybe it was these historic wrongs of the past that the special court on Tuesday hoped to correct.
Interestingly, the former chief justice Iftikhar Muhammad Chaudhry, who was part of the full bench which in 2000 declared the coup “lawful”, had later led a movement which eventually led to Musharraf resigning from office. Chaudhry too tried to make amends for his past mistakes by closing the door for any future martial law in the country.
By declaring Musharraf guilty, the three-member special has made Article 6 relevant again, which had been lost in the confines of history due to back-to-back military dictatorships. The spirit behind the Article was to act as a deterrence against any military adventurism.
The court has declared Musharraf a traitor. Others disagree, but the fact remains that for the first time in the history of the country, the court has accepted the federation’s plea. As for the argument of whether the former army chief was given an opportunity to record his statement, the special court held 125 proceedings and repeatedly gave Musharraf time to defend himself over a course of six years.
What a turned around in our political history of the last 20 years. Often history is forced to repeat itself because no one was paying attention when it first played out.
In 2000, Sharif was sentenced to life in prison in a case involving hijacking by an anti-terrorism court. Back then, Musharraf's government had filed an appeal and pleaded for an enhancement in the former prime minister’s sentence, therefore it be converted from life imprisonment to a death sentence. But then a deal was struck due to pressure from the Saudi government and Sharif was allowed to go into exile.
It is also a fact of history that Sharif choose Musharraf over General (now retired) Ali Quli Khan, under the assumption that the former had a weak constituency within the armed forces. The same mistake was committed by Bhutto, who picked General Haq, ignoring six senior generals of the time. Both Musharraf and Haq overthrew elected governments.
Today, neither Sharif not Musharraf are in the country. The two are seriously ill, undergoing treatment abroad. In 2016, Sharif was sentenced and disqualified. As for Musharraf, well, his fate was decided on December 17, 2019.
Abbas is a senior analyst and columnist of Geo, The News and Jang. He tweets @MazharAbbasGEO