The government’s plea that it would act only after parliament had unanimously demanded Mr Musharraf’s trial was obviously a tactic to make his trial almost impossible. A charitable interpretation could be the government’s desire to promote the principle of governance by consensus. —File Photo

THE registration of cases implicating Mr Pervez Musharraf in Nawab Akbar Bugti’s murder or the detention of judges is unlikely to reduce his joy at the dissipation of the campaign for his trial for high treason under Article 6 of the constitution. His gain is certainly the nation’s loss.

Until some time ago, Mian Nawaz Sharif and his party colleagues were vociferously demanding Mr Musharraf’s trial for high treason as something absolutely vital for the consolidation of democratic governance. What persuaded them to stop firing their broadsides is a mystery. Maybe they found more populist causes to harass the government with, such as the Kerry-Lugar bill and the NRO – matters that carried no risk of irritating the military – or perhaps they had other reasons for the change of tack.

In a way that is good for Pakistan. The affair brought into focus the principle that the opposition in a democratic set-up must avoid demanding of the government anything that it too might not be able to accomplish if and when it comes into power. Besides, now that the debate on the subject of enforcing Article 6 has been purged of emotionalism and suggestions of a personal vendetta, it is possible to discuss the issue dispassionately. But first some of the confusion noticed while calls for implementing Article 6 were making the headlines almost every day.

One part of the confusion related to procedure. The government’s plea that it would act only after parliament had unanimously demanded Mr Musharraf’s trial was obviously a tactic to make his trial almost impossible. A charitable interpretation could be the government’s desire to promote the principle of governance by consensus. That parliament’s sanction was not a legal requirement for proceeding under Article 6 was common knowledge.

The High Treason (Punishment) Act of 1973 prescribes death or life imprisonment for persons found guilty of ‘acts of abrogation or subversion of a constitution or of high treason’. The use of the expression ‘a constitution’ instead of ‘the constitution’ is relevant to our discussion, as the act applies to any person who abrogates/subverts any constitution in force in Pakistan at any time since March 23, 1956. Obviously the act can take notice of the actions of all usurpers of power – Messrs Iskander Mirza, Ayub Khan, Yahya Khan, Ziaul Haq and Pervez Musharraf. The only other provision of this brief enactment is to the effect that proceedings can begin only on a complaint by a person authorised by the federal government.

The second relevant law, the Criminal Law Amendment (Special Court) Act, 1976, stipulates that any offence punishable under the High Treason (Punishment) Act of 1973 will be tried by a special court (comprising three high court judges) set up under this act.

As far as procedure is concerned, all that is required is that the federal government should file a complaint and set up a special court to try anyone charged with high treason.

Another issue that cropped up during the debate on the subject was as to what offences Mr Musharraf should be charged with. Quite a few politicians argued that Mr Musharraf’s prosecution had become unavoidable in the light of the Supreme Court verdict of July 31 this year. True, the court did take notice of the fact that the constitutions had been ‘either abrogated or put in abeyance and the democratic system of governance was put to an end’, and referred to the coups of 1958, 1969, 1977 and 1999. But the issue before the court was a challenge to Mr Musharraf’s second time subversion of the basic law and dealt mainly with his assault on the judiciary.

The proclamation of Nov 3, however unpardonable it might have been, was a sequel to a far more heinous offence, namely, Mr Musharraf’s subversion of the constitution on Oct 12, 1999. Regardless of the possibility of convicting Mr Musharraf of high treason or otherwise, it is the act of Oct 12, 1999 and similar acts by his predecessors that need to be judicially condemned. It is neither possible nor necessary to put the deceased ‘saviours’ of Pakistan in the dock, but it is absolutely necessary to secure a judicial pronouncement that seizure of power on Oct 7, 1958, March 25, 1969, July 5, 1977 and Oct 12, 1999 amounted to high treason.

It has sometimes been argued that Mr Musharraf’s trial is necessary in order to block any disruption of the constitutional rule in future. Such wishful thinking has no basis in reality. Neither parliamentary resolutions nor court judgments can prevent the seizure of power by ambitious persons. And once in power such persons can get their actions endorsed by parliaments and courts far more easily than democrats can try usurpers of state authority even after they have been dumped in the dustbin of history. Only a vigilant and active citizenry can protect the constitution against subversion.

A related issue is the fact that those who committed high treason could not have had a smooth sailing if the judiciary had not come to their rescue. The setting aside of the verdicts that upheld subversion of the constitution during 1958-2007 is as important, if not more, for democratic consolidation as holding Mr Musharraf or anyone else accountable.

This is necessary to prevent the common citizens from falling into the error of surrendering to illegitimate regimes on the ground that they enjoyed judicial sanction. That no court verdict ever convinced the masses of the legality of disruption of the democratic order, whatever the nature of sins attributed to the powerless politicians, cannot be denied. Still, court rulings that denied justice to victims and opponents of coups and gave the usurpers relief they had not asked for provided the unlawful regimes’ hangers-on with a legal fiction to rationalise their patrons’ misdeeds and create political parties/groups and perform acts that can only be described as abetment of assaults on democracy.

It is not difficult to suggest a way to put the record straight. The government may move the Supreme Court, now that it is believed to be fully independent, for reviewing all the cases of disruption of constitutional life and the court judgments validating these indefensible acts. If for any reason this cannot be done, the best thing will be to stop the babble about invoking Article 6 against Mr Musharraf or anyone else and wait until a truly empowered people can define and defend the norms of democratic governance.