The verdict

One unfortunate paragraph should not take away from the importance of the verdict delivered by the special court convicting Pervez Musharraf.

Whether or not the former dictator will be punished is irrelevant. What is relevant is the symbolic precedent that has been established. For even though posterity may not remember paragraph 66, it will remember that on December 17, 2019, this nation, after prolonged experiments with dictatorship, decided that the use of force to override our constitutional values was treason.

But Imran Khan and his cabinet are not celebrating. The PTI has gone from a party that was once the strongest proponent for the conviction of Musharraf to the strongest advocate for his acquittal. A change of heart that undermines its own commitment to the Constitution and democracy. It will now assist a fugitive from the law — meaning a person with no rights of audience before our courts — in filing an appeal before the Supreme Court. The Supreme Court will hear a case where both the prosecution and defence will be arguing that the convict be acquitted. A case such as this is not just a novelty; it is an example of the fissures that exist in our country regarding what its founding values are.

To achieve its goal, the federal government has latched on to the now-infamous paragraph 66 of the opinion penned by Justice Waqar Seth. That paragraph cannot be a ground for overturning a conviction. It does not even, in fact, constitute an operative part of the judgment because Justice Shahid Karim dissented from it, making it the opinion of a lone judge. Plus, that paragraph concerns punishment, as opposed to the actual merits of the treason charge. While paragraph 66 deserves to be expunged from the judgment altogether, it has no bearing on the guilt of the accused.

I believe that democracy, firmly rooted in liberal constitutional values, is the best way forward for this country. For this reason, I see it as important to dismantle the three main arguments being made in favour of acquitting Musharraf.

The first argument is that Musharraf is being retrospectively punished. The argument goes that the 2007 PCO stated that the Constitution would be held in “abeyance”. The offence of holding the Constitution in “abeyance” was inserted into Article 6 (treason) in 2010. Therefore, Musharraf cannot be held guilty for something he did in 2007 that became an offence in 2010. This is bolstered by the fact that Article 12 of our Constitution prohibits retrospective punishment.

To be frank, this argument relies on the sort of displaced-from-reality semantic jargon that lawyers are parodied for. It is comprehensively dealt with in the opinion of Justice Shahid Karim. The fact is that in 2007, Article 6 explicitly made it an offence to “subvert” or “abrogate” the Constitution. This is exactly what the 2007 PCO did. Subversion is defined as an act of overthrowing the government. It is a mechanism through which the constitutional machinery of the state is dismantled through force. This is what the 2007 PCO attempted to do. Those who drafted the 1973 Constitution inserted Article 6 exactly to avoid such adventurism in the form of PCOs by the military. The report of the Constitution Committee of the time, presented before the National Assembly on December 31, 1972, made this exact point. It is therefore clear that Article 6 encompasses the seizure of power through force.

The opinion of Justice Nazir Akbar, the lone dissenting judge, is with great respect, mistaken in its definition of the word “subversion”. He cites a definition of the term proposed by — of all people — Justice Munir, the judge who is responsible for this country’s first foray into the doctrine of necessity. That is a view that cannot be said to be unbiased. Even otherwise, that definition is irrelevant, because the Supreme Court has already held in 2009 that the word “subversion” includes manipulation of the Constitution through force.

The second prominent argument being promoted in favour of Musharraf is that he was not given a fair trial. It is interesting that a man who once claimed that the Constitution was a piece of paper that could be discarded at will is now seeking protection under it. That is the beauty of constitutional values — they protect even those who disdain them.

Musharraf deserved a fair trial and received one.

He was asked to record his statement in 2014. From then on, his counsel delayed doing so, effectively stalling the trial. When the court offered him the chance to record his statement via Skype, it was told that wasn’t needed because he would soon appear in person; when the court offered to send a commission to Dubai, they received the same answer. Yet, Musharraf never appeared, nor did he ever intend to.

It appears Musharraf was trying to thwart the trial by taking advantage of the Criminal Procedure Code’s section prohibiting a trial in absentia. However, the Supreme Court has already held, in April 2019, that if an accused has full knowledge of a trial yet still refuses to appear, then, he cannot say that there has been a denial of a fair trial. This makes sense — it would be ridiculous if the law protected a person who deliberately avoids a trial for fear of conviction. A trial in absentia is allowed under certain conditions even under the jurisprudence of the ICCPR.

The last argument, and perhaps the most popular one, is that Musharraf has been singled out for punishment while his accomplices roam free. While it is true that everyone who participated in the 2007 PCO should be equally held to account — that does not absolve Musharraf of guilt. In 2016, the Supreme Court dealt with this argument and held that it was the prerogative of the federal government regarding who they wanted to prosecute and charge.

The special court’s decision therefore does not suffer from the legal defects that are being attributed to it. The only argument left is one of sympathy, for Musharraf was a brave soldier who served his country as a patriot. Unfortunately, this is not a good enough argument against constitutional supremacy and the rule of law. Your patriotism does not give you a licence to kill the Constitution.

Published in The Express Tribune, December 24^th, 2019.

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