Why Musharraf’s ‘collective sin’ argument is weak

The former PM Shaukat Aziz's letter is addressed to “Mr. President” and not the Chief of Army Staff.

KARACHI:

There has been plenty of speculation about how former president Gen (retd) Pervez Musharraf will approach the historic treason trial he is faced with on the first day of the new year for subverting the Constitution.

One view, possibly the most has it that the former military dictator can take the line that he imposed emergency on November 3, 2007, acting on the advice of the then prime minister Shaukat Aziz and other senior civilian and military leaders of the country. However, there seems to be no official documentation of this advice.

The only document available is the oft-referred-to letter by Shaukat Aziz to Musharraf in the lead-up to the imposition of emergency. However, that letter is now on public record following a famous ruling pertaining to the emergency and the actions taken as a result.

In 2009’s famous “July 31” judgment, the letter in question has been reproduced – and, though it is suggestive, nowhere does it suggest that Gen (retd) Musharraf impose emergency or take any action, which would have been the legal requirement (the chief executive asking the military to come in aid to the civilian government). In fact, the letter is addressed to “Mr. President” and not the Chief of Army Staff – the office that ultimately imposed the emergency on November 3, 2007.

The detailed judgment comments on Aziz’s letter in detail, but most important is the passage where it states:

“From the contents of the letter of the Prime Minister, it cannot be said that he issued any direction to the Armed Forces in terms of Article 245 of the Constitution to act in aid of the civil power, nor the actions of General Pervez Musharraf of 3rd November, 2007 could be said to have been taken or done while acting in aid of the civil power. Even otherwise, the letter was addressed to the President of Pakistan and not to the Chief of Army Staff. But for the sake of argument, it may be stated that even if the letter was addressed to the COAS, it could not be construed to give to the latter any power to take the kind of steps that he took in pursuance of the aforesaid letter.”

The rationale behind the review being filed after over 4 years is two-fold: firstly, that Musharraf wanted to wait for Justice Iftikhar Chaudhry to retire because he ostensibly had an ‘enmity’ with the former president. Secondly, the legal team points to the hijacking case against Mian Nawaz Sharif that was allowed a review, and subsequently overturned, some ten years later.

Of the July 31 verdict, the paragraphs that are being challenged in particular are 56 and 76.

That is because Para 56 will be the smoking gun for the prosecution in the treason trial. It concludes ominously for Musharraf:

“It is hereby firmly laid down that the holding in abeyance of the Constitution or any other act having the effect of discontinuing the operation and the enforceability of the Constitution for a single moment in a manner not authorised under the Constitution is nothing but an overthrowing of the Constitution, so to say, the subversion of the Constitution and thus constitutes the offence of high treason.”

Shaukat Aziz's letter: ‘Subject: national security situation’

Dear Mr. President,

I am writing to you to share my thoughts on the current national security situation and the risks that it represents for the future of Pakistan.

2. The Government has made serious and sincere efforts to revive the economy, maintain law and order and to curb extremism and terrorism in the country. In the last few months, however, militancy, extremism and terrorist activities have been in ascendance, particularly in some districts of NWFP where the writ of the government is being eroded and non-State militants are apparently gaining control. There have been a number of bomb blasts and suicide attacks in other parts of the country including the recent suicide attack on a political rally in Karachi on 18th October, 2007. During the last ten months, 1322 precious lives have been lost and 3183 persons have been injured. Details of such incidents between April – October, 2007 are enclosed. The executive measures taken against extremist elements to contain militancy and terrorist activities have, on a number of occasions, been called into question by some members of the judiciary making effective action impossible.

3. There has been increasing interference by some members of the judiciary in government policy, adversely affecting economic growth, in particular. The cornerstone of the economic policies of the government is privatization, liberalization and deregulation which create economic growth and investment. Both local and foreign investment has been negatively affected.

4. It cannot be disputed that the legality of executive measures is open to judicial scrutiny. The wisdom or necessity of a policy or a measure is an executive function and not open to judicial review, however, in the recent past, some members of the judiciary have, nevertheless, departed from these norms. While we all are committed to the independency of the judiciary and the rule of law and hold the superior judiciary in high esteem, it is nonetheless of paramount importance that the Honourable Judges confine the scope of their activity to the judicial function. While judges must adjudicate they must neither legislate nor assume the charge of administration.



5. Most importantly, constant interference in executive functions, including but not limited to the control of terrorist activity, economic policy, price controls, downsizing of corporations and urban planning, has weakened the writ of the government. This has increased the incidents of terrorist attacks thereby posing grave threat to the life and property of the citizens of Pakistan and negatively impacting the economy. Wide-ranging suo motu actions of the courts negate the fundamentals of an adversarial system of justice. The police force has been completely demoralized and is fast losing its efficacy to fight terrorism. Intelligence Agencies have been thwarted in their activities and prevented from pursuing terrorists.

6. A large number of hard core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated have been released. The persons so released are reported to be involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law enforcement agencies subdued.

7. There is a widespread perception of overstepping the limits of judicial authority and taking over of executive functions. Privatization is at a standstill while domestic and foreign investors are being compelled to reconsider investment plans thus adversely affecting the economy.

8. On the other hand, an important constitutional institution, the Supreme Judicial Council, has been made entirely irrelevant by a recent order. Detailed reasons for this order are still awaited despite a lapse of three months. Judges have, thus, made themselves immune from inquiry into their conduct and are now beyond accountability.

9. The law and order condition in the country as well as the economy have been adversely affected and trichotomy of powers eroded. A situation has thus arisen where the routine and smooth functioning of government machinery is becoming increasingly difficult and causing grave concern among ordinary citizens about their security. As evident from the attached list, there has been an unusual increase in security related incidents highlighting the gravity of the situation.

10. Mr. President, the contents of this letter reflect my views and public opinion about the current scenario. For any State to function, all the three pillars of State must act in harmony in the best national interest. Pakistan is a country that achieved independence after immense sacrifices and has tremendous potential to develop. Prosper and be recognized among the comity of nations as a country with an exciting future.

Yours sincerely,

Sd/-

(Shaukat Aziz)

Published in The Express Tribune, December 31^st, 2013.