Supremacy of the Constitution

The irony for PTI followers is that while they have turned against judiciary, they have not cared about Imran's stance

The special court judgment declaring Pervez Musharraf a traitor for subverting the Constitution has sparked a fierce political and legal debate as electronic, print and social media are all abuzz with discussions on the vires of the decision. The government, represented by its Attorney General, Law Minister and Information Minister sprang into action with a chorus even at the time of the announcement of the short order without waiting for the detailed judgment. The DG ISPR also lost no time in issuing a statement that the judgment had been received with a lot of pain and anguish among the rank and file of the army. In his press conference, he meaningfully threatened that they knew “how to defend the honour and dignity of the institution but were exercising restraint because for them, the country was first.”

Opposition parties, civil society organisations, bar councils and bar associations and most of the editorials termed the judgment a historic and landmark moment in the chequered constitutional history of the country. The common underlying theme is that the judgment has the potential of working as a bulwark against military adventurism. One paragraph of the judgment, i.e., paragraph 66, eclipsed the importance of remaining content, as it was quite melodramatic in its tone and choice of words. Justice Waqar Seth had declared in this paragraph that in case the convict died before the execution of the death penalty, his corpse should be dragged and hanged in D-Chowk for three days, but the other two judges dissented with that view .Thus this part became a minority opinion and thus inoperative but this provided enough ammunition to the government to attack the person of Justice Seth. The Law Minister and the Attorney General had the audacity to declare that the judge had violated judicial conduct by issuing a bizarre order and was mentally unfit and incompetent therefore, the government would move a reference against him to the Judicial Council.

The irony for the PTI followers is that while they have joined a well-resourced movement against the judiciary in general and Justice Seth in particular, they have not cared about the actual stance of their leader in the past. Television recordings are available where Imran Khan had publicly declared Musharraf to be a traitor and liable for a trial under Article 6 of the Constitution. They seemed to have forgotten that while the present ministers and attorney general were former beneficiaries of Musharraf, Mr Khan was in the forefront at the time of the Lawyers’ Movement against Pervez Musharraf.

The system of criminal justice is very simple in its design. Any person feeling aggrieved with the judgment of a subordinate court either prefers an appeal or seeks other remedies available under the law. Former prime ministers, presidents, ministers, civil servants and other prominent personalities have all gone down this route. Even serving officers of the armed forces having committed any cognizable offence have been tried for that offence. They had been given the option either to be tried by a military court or a magistrate or a Sessions Court. As such, the prosecution, acquittal or conviction of any person whether a civilian or from the army is in accordance with the law. The law in this context does not provide special treatment or immunity to anyone.

The Constitution is a social contract between the people and the state wherein people surrender certain rights to the state in lieu of protection of life, property, honour and freedom within the orbit of law. The covenant being the supreme law of the land also demarcates the role of all institutions and functionaries of the state. All persons and institutions derive their authority from the law. Article 4 of the Constitution is explicit in laying down that all acts have to be in accordance with the law. As such the supremacy of the Constitution keeps the social fabric intact and provides the foundation to the concept of the rule of law.

Some commentators, including the PM and certain ministers, contend that the judgment had put state institutions on a collision course. We need to remain mindful that the Constitution of Pakistan is based on the theory of separation of powers, whereby power has been divided between the executive, legislature and the judiciary. The Constitution has demarcated clear boundaries within which these three institutions have to function. The Constitution has not provided this authority to any other department of the government. The whole system remains in balance upon this fulcrum and any deviation would upset the whole constitutional order in the country. Therefore, the state strengthens with the strengthening of the institutions of the executive, legislature and judiciary. These are the main pillars of the state and other departments in whatever form are subordinate and are required to follow the lawful command as ordained in the law.

Article 6 is also part of the Constitution and its insertion was not without purpose. This was made part of the Constitution in order to deter regular adventurism exhibited by army generals in the past. The authors of the Constitution were of the view that with its insertion, martial law had been buried forever. But the basic malaise of our governance is that laws are not implemented or are implemented selectively. In order to set the past right, it is of utmost importance that the guardians of the Constitution ensure the full implementation of all provisions of the Constitution. In this regard, these provisions must be given special importance, the violation of which disturbs the whole equilibrium. We need to see and interpret the judgment of the special court in this spirit.

Published in The Express Tribune, January 1^st, 2020.

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