The Judgements No Longer Remembered
Usman Khan argues that a court handing out the punishment for Article 6 and convicting a known dictator is questioned, criticized and abused and those who should be hunted down and brought to book for treason remain free.
Upon the horizon of a new decade, Pakistan saw the conclusion of former president Pervez Musharraf’s trial which had been ongoing for several years. The special court convicted him of high treason and handed out the death penalty. The current government, whose prime minister himself is on record asking the strictest of punishments against Musharraf and proudly claims that he fought for democracy against a dictator and was on the run for it, sided with Musharraf and the army. The military minced no words in announcing how displeased they were.
Some pro-Musharraf quarters claimed that this was selective justice by the courts as the abettors were not punished. Coming from the government quarters, this argument was ironic considering that the same argument used by the opposition in the accountability drive is ignored.
The courts faced undue criticism and abuse against the judgment. Was the abuse justified? The wordings may have been controversial and worthy of criticism but were the sentence and conviction also unjustified as so many claim?
The criticism was not justified, because no matter what, those who violate the law of the land must be punished and no matter what the COAS or ISPR say, Musharraf broke a sacred law that he took an oath to protect. The courts themselves have a dubious history but have stood by the constitution and have asked to hand out punishments against those that tried to either abrogate or hold the constitution in abeyance but the failure rests upon the populace to demand such punishments and the governments that have come to power. Their collective failure has allowed many to escape punishment for the most grievous of crimes. It was observed in PLD 1993 SC. 473, “The federal government has not so far designated the authorized person on whose complaint such an offence can be taken cognizance of by the courts….. The failure here is of the executive government and that too since 1973”. A more scathing judgment was PLD 2013 Pesh. 105 which stated, “Language used in article 6(2) of the constitution includes members of parliament and the parliament as whole. When any validation was accorded by the parliament to unconstitutional and illegal acts of a usurper through any means whatsoever.
The parliament as a whole shall cease to exist because each member by such act would earn the penalty of high treason and would be liable to be prosecuted.”
The judgment above highlights an ignored fact, especially by the supporters of the current government that some members of parliament and federal ministers have themselves committed high treason under this article by supporting and validating the regime of a dictator, yet they are hailed as clean democrats who are fighting to protect Pakistan from an evil that is neither explained nor defined.
The two judgments above also highlighted how the democratic governments have shirked away from implementing Article 6 properly due to political interests and alliances. Many use “whataboutery” to highlight as to why the court doesn’t take cognizance itself. The answer is simple that the power to file complaint of high treason rests solely upon the executive government as highlighted in the judgment 2014 P.Cr.LJ. 684 and in 2013 SCMR 1683.
The executive government itself avoids filing any such in fear that such punishment will fall upon them as well due to their history.
Article 6 is the only sword and shield that we, the people and the constitution, have against anybody that tries to abrogate it. The article will lose its significance if the government ceases to utilize it against those that have held the constitution illegally and against those that supported it.
The government itself will never be able to strengthen itself as an institution if it ceases to utilize its only shield and as we see now, that institutions are no longer fearful of the constitution and have no qualms is ridiculing the government and courts.
Having forgotten their own place, they stand upon the doors of the three main institution i.e. the parliament, the executive and the courts and as the ‘patriots’ cheer for them, they fail to realize that each step forward weakens the only shield the people. And thus, we see this day where a court handing out the punishment for Article 6 and convicting a known dictator is questioned, criticized and abused and those that should be hunted down and brought to book for treason remain free.
The writer is a lawyer and an animal rights activist working through his association B.R.U Law Associates and the NGO Pro-Nature. He can be reached via [email protected]