THE judgment of the Supreme Court of Pakistan, dated Oct 19, 2012, in the Air Marshal Asghar Khan case has been labelled a watershed in our national history.

However, media hype aside, a perusal of the judgment clearly shows that it serves as a mere indictment of the named individuals, the (late) president, Ghulam Ishaq Khan, Gen Mirza Aslam Beg (retd) and Gen Asad Durrani (retd), not a conviction.

The judgment rightly terms the manipulation of the 1990 elections as unconstitutional and illegal and cites the above-named individuals as being culpable for the subversion of the constitution and the law. It directs the government to take action against these individuals under the constitution and the law. So in layman’s parlance, the judgment is a sort of an FIR which should lead to a trial of the cited individuals; whether or not they are convicted has to be determined in their respective trials.

Is it not a fair assessment, then, that, in relying on the legal maxim of ‘innocent until proven guilty’, these individuals remain innocent as they have not been tried and proved guilty of any subversion of the law?

The options before the government to try these individuals are rather restricted. The judgment deems their acts as being in subversion of the constitution, so it should follow that the cited acts fall within the definition of high treason, as defined in Article 6 of the constitution. This stipulates that parliament shall by law provide for the punishment of persons found guilty of high treason.

The High Treason (Punishment) Act 1973 states that a person who is found guilty of having committed an act of abrogation or subversion of the constitution, at any time since March 23, 1956, shall be punishable with death or life imprisonment. The said act also states that no court shall take cognisance of an offence punishable under this act except upon a complaint made in writing by a person authorised by the government in this regard.

In 2004, Makhdoom Javed Hashmi was tried under the said act and sentenced to 23 years in prison for having released an unsigned letter to the media which was critical of the actions of Gen Pervez Musharraf.

In that case, the government was swift in initiating a complaint for high treason but in the present case it appears unconvinced.

Under the law, proceedings for high treason can only be initiated by the federal government and this was upheld in August 2011 by the Lahore High Court, which reiterated that a private citizen could not initiate such proceedings.

A sitting member of the National Assembly, Khurram Dastagir Khan, had proposed an amendment to the said act in 2010 requiring that the procedure for taking cognisance of high treason be substituted with the following: “A high court shall take cognisance of an offence punishable under this act upon a complaint in writing made by any citizen of the Islamic Republic of Pakistan.” However, the amendment was never passed by the National Assembly.

It is possible that the government may seek to deem the actions of the cited individuals as having violated their oath and require the Pakistan Army to initiate departmental action against them. In the recent National Logistics Cell case, the army reinstated retired officers and initiated proceedings against them. The legality of such proceedings notwithstanding, such an act would completely absolve the cited individuals of the subversive acts attributed to them in the judgment as they would never stand trial for the constitutional offence of high treason.

There is the argument that since the culpability of the cited individuals may already have been established in the SC judgment, the High Treason (Punishment) Act 1973 may only be invoked for sentencing. However, this proposition would militate against the provisions of Article 10A of the constitution, which requires that a person is entitled to a fair trial and due process. Since the SC is not a trial court the cited individuals must be allowed a fair trial in a court of appropriate jurisdiction. Such a trial would never take place unless the federal government initiates proceedings.

Many of us do not remember 1971, when Iqbal’s two-nation theory suffered a fatal blow and Pakistan was cleaved in half.

Many of us do not remember 1971, when Iqbal’s two-nation theory suffered a fatal blow and Pakistan was cleaved in half. Justice Hamoodur Rehman was entrusted with a commission to determine responsibility. The commission came up with a report, pertinent excerpts whereof are reproduced below:

Justice Hamoodur Rehman was entrusted with a commission to determine responsibility. The commission came up with a report, pertinent excerpts whereof are reproduced below:

“There is consensus on the imperative need of bringing to book those senior army commanders who have brought disgrace and defeat to Pakistan by their subversion of the constitution, usurpation of political power by criminal conspiracy, their professional incompetence, culpable negligence and wilful neglect in the performance of their duties and physical and moral cowardice in abandoning the fight when they had the capability and resources to resist the enemy. Firm and proper action would not only satisfy the nation’s demand for punishment where it is deserved, but would also ensure against any future recurrence of the kind of shameful conduct displayed during the 1971 war. We accordingly recommend that the following trials be undertaken without delay:

“That Gen Yahya Khan, Gen Abdul Hamid Khan, Lt Gen S.G.M.M. Pirzada, Lt Gen Gul Hasan, Maj Gen Umar and Maj Gen Mitha should be publicly tried for being party to a criminal conspiracy to illegally usurp power from F.M. Mohammad Ayub Khan, if necessary by the use of force. In furtherance of their common purpose they did actually try to influence political parties by threats, inducements and even bribes to support their designs both for bringing about a particular kind of result during the elections of 1970, and later persuading some of the political parties and the elected members of the National Assembly to refuse to attend the session of the National Assembly scheduled to be held at Dacca on the 3rd of March, 1971. They, furthermore, in agreement with each other brought about a situation in East Pakistan which led to a civil disobedience movement, armed revolt by the Awami League and subsequently to the surrender of our troops in East Pakistan and the dismemberment of Pakistan.”

The Hamoodur Rehman Commission was clear and categorical in determining the culpability for the 1971 tragedy yet no action was ever taken against the persons responsible, quite simply because no government ever initiated proceedings against those held responsible. It is entirely possible that the SC judgment in the Asghar Khan case will meet the same fate.

The government must initiate proceedings against those cited in the judgment. If it does not have the will to do so, then it has the required numbers in parliament to pass the amendment to the High Treason (Punishment) Act 1973 proposed by MNA Khurram Dastagir Khan and clear the way for the high court to take cognisance of high treason upon being petitioned by any citizen.

In the absence of any immediate constructive action by the federal government, the SC must be constrained to seek the enforcement of its judgment, as it did in the NRO case.

The writer is a co-founder of the Citizens-Police Liaison Committee.

Updated Nov 05, 2012 03:04am

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Comments (3) (Closed)

Sehrish Amber
Nov 05, 2012 03:38pm
Disclosure of series of pindora boxes demonstrates that Pakistan is being ruled by Army since its very inception. It is out of the question that present goverment too is the product of those manupulations - keeping in view the fact that it came into being after the rule of most powerful dictator in Pakistan's history. So it is impractical to conceive that this govt; would take any initiative to trial these perpetrators or bring any bill in assembly to ammend the Treason Act of 1973.
Nov 05, 2012 01:07pm
What does the Hammodur Rehman report say about Bhuttos role in the tragedy? Surely he is also held accountable.
Shahid Masud (@HotMasud)
Nov 06, 2012 12:52am
Why It took supreme court 16 long years to decide this case , why till date people involved in the case haven't been prosecuted , why supreme court announced this decision at the time when elections in Pakistan are so close , why Arsalan , why Zardari , why Sharif brothers , why gen Baig , why gen Durani , why ???? ?????.