1) Any person who abrogates or attemots or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or by other unconstitutional eans shall be guilty of high treason.
2) Any person aiding or abetting the acts mentioned in Clause (1) shall likewise be guilty of high treason.
3) [Majlis-e-Shoora (Parliament)] shall by law provide for the punishment of persons found guilty of high treason.
At the head of this lot is Mian Nawaz Sharif. Longing to have Musharraf served on a plate at his Raiwind mansion dining table, he looks up with great expectations to the independent judiciary to try Musharraf and award him capital punishment. For Mr. Sharif it is his life's only mission. As his party's information secretary, Ahsan Iqbal, told a TV anchor, if no other party supports the move, the PML (N) would do it alone, staging long marches and protest rallies.
Sections of electronic and print media have their own gravamen for having been gagged under the November 3, 2007 emergency. Others adopt a pseudo-objective posture or an altruistic mode. They justify the demand for the trial for posterity's sake According to them, making a (horrible) example of Musharraf would forever shut the doors to a coup. Even Nawaz Sharif has assumed a saintly mask, claiming he is not seeking revenge, but only trying to re-establish the supremacy of the law!
Actually, most people speak of Article 6 of the Constitution only to show they are hip. It is a good guess that at least 80 per cent of the chattering classes have not read the Article at all. They simply join the chorus. Of the rest, 18 per cent seem to have read only its first clause and run away with it. They overlook that there is also a second clause that is inseparable from the first. And both must run together.
It is only the last two per cent that appear to have carefully read the Article fully and understood the implication of its second clause. Concerned with the fallout of such a venture they, therefore, counsel caution. Says political science professor, Anwar Syed, "Putting the former president of Pakistan on trial would be like opening a huge can of worms, which would spread and crawl all over the place, causing panic, confusion and chaos."
He argues that "if he (Musharraf) is to be tried for abrogating and subverting the constitution, then his co-conspirators and collaborators must also be tried. That would be an extremely messy and destabilising exercise."
On the face of it, Pervez Musharraf is guilty of high treason as defined in Article 6. But so are the people who aided or abetted (or conspired) in his first coup of 1999, -when he dethroned Mian Nawaz Sharif, and his "second coup" of November 3, 2007, when he sidelined the Chief Justice. The list would include military commanders, television producers, newspaper publishers and politicians who joined, collaborated or otherwise "bolstered his administration."
Out of 17 judges of the Supreme Court's 1999 bench 12 took oath administered by Musharraf under the PCO he promulgated. The five who did not take the oath, were - Saeeduzzaman Siddiqi, Wajihuddin Ahmad, Kamal Mansur Alam, Nasir Aslam Zahid, and Mamun Kazi. But, while there was a countrywide uproar to restore the judges removed under Musharraf's second PCO, there was not even a whisper from any corner in support of the judges removed under the first PCO. But that is a separate subject for inquiry.
Present Chief Justice Iftikhar Mohammad Chaudhry was among the 12 judges who took the oath of office under the first PCO and validated Musharraf's October 1999 coup in their judgment of May 12, 2000 under the doctrine of salus populi suprema lex (people's welfare is the supreme law).
That is not all. Later the National Assembly also endorsed it. Yet, it is this coup to which Article 6 is sought to be applied against Musharraf. So, strictly speaking according to Clause 2 of Article 6, all legislators, civil servants and generals, who aided in the implementation of his decisions and directives, pursuant to his takeover of October 12, 1999 as well as those who sided with him supported in the second high treason of November 3, 2007, and bolstered his administration; Generals, governors, chief ministers, et al, invite the charge of high treason. So the critical question is will all those people be prosecuted?
Notably, the case of high treason is to be tried initially at a court of sessions. So the question is whether the judge of a subordinate court will feel free to decide whether the Supreme Court judges who validated Musharraf's extra-constitutional measures were aiders and abettors of high treason.
No less critical problem is how to go about the exercise. In his typical gung-ho style Nawaz Sharif announced that his party would table a resolution in the Shura. But, later, he demanded that the government should initiate the action. Prime Minister Gilani responded with declaring that his government would proceed if there was a unanimous resolution on the subject.
Many pundits faulted Gilani for putting such precondition. Arguing that a unanimous resolution is not mandatory, they accused him of trying to kill the issue. But, they did not object when the president sent the Nifaz-e-Shariah bill for Malakand division, to the Shura for approval. In that case, too, it was not legally binding on the president to do so. But it was done to obtain a consensus because it was a contentious issue. The same argument applies here with greater force.
Analysts also note with surprise the unprecedented enthusiasm to send Musharraf to the gallows, whereas nobody ever mentioned "high treason" about Ghulam Mohammad, Ayub and Yahya, -Zia died when still in office. They are at a loss to dispel the lurking suspicion that there is more to the demand for Musharraf's trial, than the glib excuse by born again democracy lovers that it is their sincere attempt to do the right thing that was not done earlier.
Even Chief Justice Chaudhry alluded to Cromwell during the hearing on Musharraf's November 3 actions. But who would ever think of digging out Ayub and Yahya's cadavers and hang them? Even if it is a case of doing the right thing, then there are many other right things that are needed to be done. They should be prioritized according to their urgency. Judged from this angle, Musharraf's trial is by no means one of the most urgent needs for Pakistan.
Even the argument that punishing Musharraf would deter other Generals from staging coups does not hold. As Anwar Syed observes, "Politically ambitious Generals will (always) move in to fill a power vacuum created by the civilian regime's infirmity, internal incoherence and inability to function effectively."
Therefore, those who counsel to mind the present and move on, need to be listened to. As columnist Kunwar Idris says, "It is better left to the people to pass a lasting judgment on Musharraf's coup and his emergency rule."
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