A large can of worms

The trial of former president and COAS General Pervez Musharraf is reaching a climax one way or the other. On Monday the Special Court indicted him on five charges of violating the constitution, specifically that in his capacity as army chief he declared a constitutionally unjustified state of emergency and put the constitution in abeyance while suspending fundamental rights, and that he issued a provisional order empowering the president to amend the constitution. There follow three charges against him as president: forcing judges to swear an oath under the new Provisional Constitutional Order (PCO) and trying to make two amendments to the constitution using the illegal powers obtained through his order as army chief. General Musharraf must by now be wondering why he ever came back to Pakistan, since the punishment for conviction on any of these charges is death or life imprisonment. Prime Minister (PM) Nawaz Sharif reportedly cancelled a high level security meeting to be briefed on the case and on negotiations with the Taliban, currently the two most important issues for his administration. However, it appears that both the government and the courts are looking for a way to end this matter quickly. Saudi pressure on Mr Sharif to do so is growing, with the Saudis reportedly saying that they would be willing to take General Musharraf in exile much as they did Mr Sharif 15 years ago. Currently the Special Court trying Musharraf says the authority to remove his name from the Exit Control List (ECL) and let him leave the country on humanitarian grounds to attend to his ailing mother lies with the executive, which in turn says that a Supreme Court (SC) order tied the executive’s hands by seeking guarantees of Musharraf’s presence in the country. The matter now appears to be in the hands of Mr Sharif, who may be loath to take this case to its logical conclusion for fear of turning the judiciary against him if he lets Musharraf go and the military against him if he doesn’t.
The fact that General Musharraf is being tried on different charges for actions under two separate offices highlights the constitutional delicacy of this case. Legal experts have noted that trying General Musharraf for declaring an emergency in 2007 while ignoring his coup in 1999 is like shutting the stable door after the horse has bolted, even if one accepts the argument that the coup was legitimised by a parliament that later nominated him as president. However, the problem lies in the precedents that have been set for coup makers in the past. In 1954 the SC upheld Governor General Ghulam Mirza’s dismissal of the Constituent Assembly based on the “doctrine of necessity” by which extra-constitutional actions are judged legal if the integrity of the state is severely threatened. In 1958, President Iskander Mirza’s coup was justified by the little known theory of “revolutionary legality”, which held that the unchallenged overthrow of the constitutional order meant a revolution in constitutional norms had occurred and the existing order was no longer applicable. This had significant bearing on court cases where defendants being tried under the 1956 constitution suddenly faced trial under different legal statutes. In 1972, 14 years later, General Yahya Khan failed to meet the standards for revolutionary legality since according to the court he never should have had the power to declare martial law at all. Yahya Khan was found to be a ‘usurper’ and all his actions were declared illegal, however Zulfiqar Ali Bhutto was allowed to continue as president and prime minister despite being elected through a now illegal election before the breakup of Pakistan. More problematically, both General Ziaul Haq’s 1977 coup and General Musharraf’s 1999 coup were declared legal based on the doctrine of necessity, though the SC never ruled that either had revolutionary legality and therefore the constitution was still in effect. Given this history of constitutional revisionism, it seems that if the case goes to trial, the 1999 coup endorsement will raise some old and some fresh questions that will also compromise the standing of the judiciary. Meanwhile the questions remain of who decides when the constitution is in force and what constitutes a severe threat to the integrity of the state. This is what the SC must ultimately adjudicate on to clear the jurisprudential confusion worse confounded.  *

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Aaj Kal