Deterrence of Article 6 could be Deterred??


Deterrence of Article 6 could be Deterred??

Finally the cat is out of the bag—-Prime Minister Mohammad Nawaz Sharif led government has put in motion the high treason case against former commando general Pervez Musharraf by constituting a three-member special court.

On one hand the initiation of high treason proceedings against any former Army chief under Article 6 of the constitution for the first time in the history, the PML- N government would definitely be in an advantageous position at least on political ground, but in case if the fall out of the case would be contrary to the general expectations, the chances of which are quite strong, then the government would be at a complete loss and the deterrence of Article 6 would also evaporate in thin air.

Many a political analysts are of the view that the motives behind the whole exercise seemed more political and the will to establish supremacy of constitution seen nowhere and perhaps that was the reason the special court was constituted in haste and proper homework was not done before for this historic trial, on which, undoubtedly, the country’s future depends.

On one hand the Attorney General of Pakistan Munir A Malik in a media chat said that they have sufficient evidence to try former Army chief Gen.(retd) Pervez Musharraf for high treason charges while in complete contradiction to the chief law officer of the government the four-member FIA team dealing with the investigation of the case under said that so far they have nothing concrete against former Army chief.

If this is the preparedness of the government to take on what many call ‘mother of all trials’ then only some miracle could save the PML-N government from humiliation and the fall out would not only disastrous for their political future but would also eliminate the deterrence of Article 6.

In background interviews and discussion with those who matter in the ruling Pakistan Muslim League (Nawaz) and directly linked to this sensitive matter the confusion about the whole saga further dips in more confusion as about many a pertinent questions about the case they have no answers.

So in the light of these interactions with responsible people in the ruling party one could develop an impression of non-seriousness on their part and it seemed as if the whole exercise is aimed at securing political mileage and no roadmap for getting some exemplary punishment to the person guilty of abrogating the constitution is the target.

In Nov. 3, 2007 proclamation of emergency the then Military leader Gen. Pervez Musharraf had held in abeyance the constitution and technically it was not abrogated or subverted.

As the word hold in abeyance is included in Article 6 of the constitution through 18th Constitutional Amendment and there was no mention of it in the Article 6 prior to this Amendment, so how it would be quite difficult for the government to prove Gen.(retd) Musharraf guilty of high treason.

Before the 18th Amendment the wording of clause of Article 6 was: “Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.”

While after this Amendment the word ‘hold in abeyance’ is inserted in it and now it is: “Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.”

In clause 2 of this article the word ‘collaborating’ is added after abetting and now it is: “Any person aiding or abetting [or collaborating] the acts mentioned in clause (1) shall likewise be guilty of high treason.”

Another clause under (2A) is added barring the superior judiciary from validating the act of high treason and it reads as: “An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and a High Court.”

The legal wizards of the government are not clear how to prove that Gen.(retd) Pervez Musharraf had subverted the constitution whereas in the Nov. 3 proclamation order it was clearly mentioned that the constitution was held in abeyance and at that time there was no mention of ‘held in abeyance’ in Article 6, which was later inserted in at through 18th Constitutional Amendment in 2010. So it was also not clear whether these changes in the constitution would have retrospective application or not.

On the other hand it is clearly mentioned in the article that the abetters and collaborators in subversion of constitution would also be guilty of high treason.

In the proclamation of emergency issued by Gen.(retd) Pervez Musharraf on Nov. 3, 2007 it was clearly mentioned that the then prime minister, Chairman Joint Chiefs of Staff Committee, Vice chief of Army Staff, Governors of all the four provinces and Corps Commanders were consulted before clamping of emergency and they were all agreed to the decision.

The excerpt from the Proclamation of Emergency issued on November 3, 2007 by Musharraf;  “And whereas the situation has been reviewed in meetings with the Prime Minister, Governors of all four provinces, and with Chairman Joint Chiefs of Staff Committee, Services Chiefs, Vice-Chief of Army Staff and Corps Commanders of the Pakistan Army. Now, therefore, in pursuance of the deliberations and decisions of the said meetings, I General Pervez Musharraf, Chief of the Army Staff, proclaim Emergency throughout Pakistan.”

The question whether Military’s top brass was on board or not is not clear but some senior political party leaders are of the view that they (Military elite) have no objection to the whole exercise while some hawkish elements in the party are of the view that government is fully competent to initiate trial under Article 6 of the constitution and they need not approval from any quarter.

Now the coming days and months would allay fears and confusion shrouding the whole saga and conduct of trial would resolve so many riddles, which are unresolved so far and the real motives of the rulers whether they really mean business and supremacy of constitution or it is another political gimmick aimed at gaining public support. But the peculiar calm and confidence in Musharraf’s camp is meaningful and telling a lot.

Syed Abid Gillani

Posted on November 22, 2013, in Current Affairs. Bookmark the permalink. Leave a comment.

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