Reading the judgment – Mohammad Zubair

78

The death penalty given against General Musharraf by the special court has generated intense debate and added to the existing polarisation in the country. Rarely have we seen such passions on both sides – more so because important stakeholders are publicly involved.

No one could ever imagine the death penalty against a former general for the kind of action taken on November 3, 2007. After all this country had seen four military interventions between 1958 and 1999 but each time those abrogating or suspending the constitution got away without any punishment.

The death penalty handed down to the former president itself was a major shock but the intensity became more pronounced once the detailed judgement came out. Para 66 of the detailed judgement sent shock waves across the country. The reaction has been swift and even those supporting the death penalty have strongly condemned the inclusion of Para 66.

However, it is unfair to restrict our reaction to just one paragraph and ignore the main points of the judgment. It is important to understand the background and the significance of this judgement. There are main points: first, we need to know exactly what happened on November 3, 2007. Second, the implications of this judgement in the context of Pakistan’s history. And, finally, its impact on the future of our democratic process.

It is worth recalling what exactly happened on November 3, 2007. Gen Musharraf wanted to be president for five more years once his first term expired. No issue with that. The problem was his desire to contest elections in uniform. Gen Musharraf and his supporters were convinced that taking off the uniform and then contesting elections would not give him enough chance to win the presidency – therefore, the insistence on contesting elections in uniform. This was obviously strange, given that no such provision existed in our constitution. The Supreme Court was deliberating this aspect and indications were clear that he wiould not be allowed to contest elections as a serving general.

Once the intentions of the judges became clear, Musharraf decided to strike. No one expected this extreme step. Acting as army chief, he proclaimed emergency and in the process suspended the constitution. A seven-member SC bench immediately rejected the proclamation of emergency. The Supreme Court judges were physically removed and put under house arrest (most judges remained under house arrest for nearly five months until Yousaf Raza Gilani announced their release on the day he obtained vote of confidence as PM – such was the brutality of Musharraf’s emergency). In total, about 60 judges of the Supreme Court and high courts were removed and mostly put under house arrest. All private television channels were shut down and remained off air for several weeks.

The proclamation of emergency as army chief was strange considering parliament was functioning, with the prime minister and federal cabinet very much in their positions. There was strong opposition from the legal fraternity and political opposition including current PM Imran Khan, who was perhaps the first leader to call this act high treason and who demanded Musharraf be tried under Article 6 (as has become the norm, the current PM has taken a U-turn in this case as well). Also coming out on the streets were members of the civil society and the independent media. Rightly, there was outrage in the country.

Subsequently, a full bench of the Supreme Court in its decision in July 2009 held General Musharraf responsible for high treason and requested the federal government to initiate a case against him. The case was initiated in mid-2013 and after several years, we now have the decision.

The historical context should not be lost as well. We have too often in our history played havoc with our constitutions – without anyone getting punished for those acts. In many ways, the abrogation of constitutions has been regarded as just another event in our history – not serious enough to warrant punishment. In fact, two military dictators – Musharraf and Zia – are on record to have said that the constitution is just a piece of paper to be thrown in the dustbin (as per Musharraf). Any other democracy and you would be punished just for this.

Regarded as a document that would ensure the unity of the country and pave the way for a sustainable democratic process, the 1973 constitution was suspended after just four years of its implementation. More tragic was the hanging of the person who gave that constitution to the people. The inclusion of Article 6 in the constitution could not prevent it from being suspended for 11 long years. In the process, several amendments were made by Gen Zia, effectively changing the face of the constitution.

Then came 1999 and another general – and once more the constitution gets suspended. This time it was General Musharraf who took over removing the constitutionally elected government and suspending the constitution. Once again, major amendments were made, completely changing it from the parliamentary form to a presidential one. Unfortunately, once again the intervention was judicially ratified. More alarming was the right given to Musharraf by the judges to amend the constitution if needed. Once again, parliament was there to indemnify those amendments and incorporate them as part of the constitution.

It seemed Musharraf had managed to get away with the intervention as well as with the amendments in the constitution. He could have walked out gracefully at the end of his presidential term in 2007 and no one would have questioned his unconstitutional acts in 1999 and later. To his misfortune, he took that drastic decision of November 3, 2007 and ultimately got punished through the recent judgement.

The recent decision is not just about Musharraf but also about correcting the wrongs of the past 60 years or so. And, more importantly, learning lessons for the future. Will this judgement allow the country to be run according to the constitution or, importantly, as per the wishes of the founding fathers?

More than the constitutional checks, it is the spirit of the constitution and its acceptability by all stakeholders. The recent reaction from various important stakeholders over the judgement unfortunately does not provide much hope for the future. As for General Musharraf, the events of November 3, 2007 were all illegal and unconstitutional. Suspending the constitution and arresting the majority of superior court judges is a serious crime. Whether he should get the death penalty or not will be decided by the Supreme Court – but for now he remains guilty for these crimes.

The writer is former governor Sindh and former minister for privatisation.