Analysis: For Musharraf, 1973 document wasn’t the constitution

Published: January 12, 2014
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In his July 31 judgment review petition, he says assembly was incomplete 
after East Pakistan secession.

In his July 31 judgment review petition, he says assembly was incomplete after East Pakistan secession.

ISLAMABAD: 

The historic trial of former president Gen (retd) Pervez Musharraf has thrown up a number of puzzling constitutional questions – particularly given that this case is the first of its sort in Pakistan.

Among the questions are the arguments being posed by Musharraf’s legal team – and not only in the treason trial itself.

The basis of the treason trial, the Supreme Court’s historic ‘July 31’ (2009) verdict that held Musharraf guilty of unconstitutional acts, has been challenged by the former president and army chief – and his petition, which has been accepted for hearing, has a number of elaborate arguments.

In his review petition against the ‘July 31’ judgment, Musharraf’s legal team has actually challenged the authenticity of the 1973 Constitution that the former army chief is facing trial for abrogating, subverting and suspending.

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The argument here is that the promulgation of the document that we know and treat as the Constitution is a mere act of parliament and nothing more. Ostensibly, the reason being given is that the 1973 Constitution was passed only by the West Pakistan Assembly – ie, what was left of the combined Constituent Assembly of East and West Pakistan elected originally in 1970. If one follows this argument, after these elections, the Eastern Wing, along with half the assembly, seceded to become Bangladesh in 1971, but the West Pakistan parliamentarians remained in place. And though they remained in place, the basis of their election was the 1970 polls – and based on that, they numbered only half of the assembly.

Moreover, Musharraf contends that a majority of the members of the constituent assembly did not participate in the framing of the interim constitution of 1972 and the present “1973 Constitution”.

Hence, it is argued, the document (what we regard as the constitution) is an act of parliament and its violation technically does not amount to high treason.

The one-judge bench, comprising Justice Anwar Zaheer Jamali, accepted Musharraf’s petition for hearing during an in-chamber proceeding earlier this week. However, Chief Justice Tassadaq Hussain Jilani – who was also part of the larger bench that rendered the July 31 judgment – will constitute a larger bench, not less than 14 judges, to hear the case (given that the original July 31 verdict was passed by a 14-member bench).

Musharraf’s review petition also states that the Supreme Court, in its binding short order, has not directed for his trial for a high-treason offence. And rightly so, he adds, because when the “Constitution” was held in abeyance in the past – first on July 5, 1977, by General Ziaul Haq and, the second time, on October 12, 1999, by the petitioner himself – the federal government did not initiate any trial for high treason at the time.

He further argues that the Supreme Court was fully aware of the fact that the present ‘Constitution’ was enforced by a constituent assembly elected under the regime of Yahya Khan, who, according to many, was also a ‘usurper’.

Musharraf also expressed his surprise over the high treason trial initiated against him, saying that before November 3, 2007, there had been five instances where ‘deviations’ (events when those in power deviated from the Constitution) took place that were validated by the courts and parliaments on grounds of necessity and security of Pakistan.

Similarly, argues Musharraf in his petition, the deviation of November 3, 2007 was also taken under the doctrine of necessity.

However, many parts of the argument in the review petition were incomprehensible – the language and grammar could not be understood. One such example is the following passage: “And even after passing 18th amendment when validate of proclamation of emergency and accorded by 17th amendment and also in Zafar Ali Shah case stood withdrawn and no case of high treason filed for October 12, 1999 events when even violate article 25 of constitution.”

Published in The Express Tribune, January 12th, 2014.

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Reader Comments (30)

  • Saif Jatt
    Jan 12, 2014 - 10:32AM

    Very true. The case has become political considering element of vendetta. Whatever Musharraf did was in best interest of Pakistan. The aftermath and the condition we are in itself has proved Musharraf’s decisions were correct.

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  • Shaista
    Jan 12, 2014 - 10:51AM

    Dear Respectable Sir,
    Courts are not based as on Facebook pages.
    Dont worry You’ll be definately freed, just let them accuse you once, then it would be their President who’ll terminate your sentence before you fly in chartered middle-east bound jet.Allah Bless us the NAtion, Amen

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  • Ch. Allah Daad
    Jan 12, 2014 - 11:16AM

    Such stupid logics will not save Musharaf. If Musharaf had sensible and wise friends, he would not have returned to Pakistan.

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  • Nikki
    Jan 12, 2014 - 11:44AM

    Shameful history is being made in Pakistan.

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  • Muslim Leaguer
    Jan 12, 2014 - 12:00PM

    Dear Musharraf lawyers,
    3 wrongs never make 1 right. If no action is taken on the steps of 3rd November 2007 then people like you will add it in the list of 5th July 1977 and 12th October 1999 in your future cases of incoming military adventurers.
    Let the backdoor be closed forever!

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  • Mirza
    Jan 12, 2014 - 12:06PM

    “first on July 5, 1977, by General Ziaul Haq and, the second time, on October 12, 1999, by the petitioner himself – the federal government did not initiate any trial for high treason at the time.”
    Not all people who have committed crimes apprehended and punished. Does that mean everybody should be let go without any consequence? The next dictator would use this same argument that Mush got away with that so why not me?
    The petition further says that the constitution is not constitution but an act of parliament! What else is the function of NA also called legislature? Can only unelected general make the constitution? If after the independence of East Pakistan everything under the constitution is not legal then this country has been doom for a long time. How could anything under an illegitimate constitution be legitimate including its army and generals hired under this constitution?

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  • excalibur
    Jan 12, 2014 - 1:52PM

    This Kangaroo Trial and naked vendetta will implode on it perpetrators very soon

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  • M A Mujeeb
    Jan 12, 2014 - 2:03PM

    @Shaista:

    There is a wrong notion in the minds of some of the Pakistanis that Pervez Musharraf returned to Pakistan on the basis of FACE BOOK. It may be recalled that he planned a couple of times before April 2013 to return to Pakistan but he could not. However, it is on record that he always said he will certainly return to Pakistan at the time of Elections which he did. And when he returned he was not allowed to contest elections. Instead he was arrested and detained in Chak Shahzad. ACHHON KO BURA SABIT KARNA DUNIYA KI PURANI AADAT HAI.

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  • VBFH
    Jan 12, 2014 - 2:10PM

    @Ch. Allah Daad: You are calling yourself a “logic” now? Now you see what the difference education makes and how Pakistan was made by Quaid-E-Azam by Winning in English courts? No physical fight is needed when you have the ligic and proof, its only needed in it’s absence along with “hatred” which is also an act of illitrate & logic free person.

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  • Prof. Shahid Mobeen
    Jan 12, 2014 - 2:23PM

    If Musharaf’s lawyers are right about the “Constitution” what about all legal actions made under this framework?

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  • Ali Ash
    Jan 12, 2014 - 2:41PM

    What a brilliant argument indeed. Going to the very core of this confusion created after east west separation and bisection of Quaid’s Pakistan. Those who penned this constitution should be hanged for high treason for safeguarding their own interests and creating a smoke screen by declaring it as Islamic Republic of Pakistan and letting the ideology of Quaid die along with East Pakistan. The only rule that should be held supreme in this land; Might is Right!

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  • Fareed
    Jan 12, 2014 - 4:25PM

    Please add the following in your CSS for images:

    img{width:100%;}

    Its appropriate for mobile version otherwise it will destroy the responsive behavior on mobile

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  • salim
    Jan 12, 2014 - 5:36PM

    @Ch. Allah Daad:
    The shameful acts of Zia, Godfather of the incumbent are to be ignored? Lets not forget the ‘strategic depth policy’ which got us the arms and drug culture, the murder of an elected prime minister, public floggings and more.

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  • Jan 12, 2014 - 6:18PM

    Back to the basics:
    I agree with that, but the point here is what’s the reason of such a constitution when it does not respect the rights of citizens?
    Musharraf is an elite he can do this kind of argument. What about all those who do not know their fundamental rights printed in Chapter 1 of the Constitution. And for the sake of it, is this argument, started by Musharraf’s legal team, going to make any difference?

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  • Trotsky
    Jan 12, 2014 - 6:37PM

    The 1973 constitution is riddled with contradictions and inconsistencies We need to get rid of it and replace it with a completely secular constitution. Without a secular constitution, Pakistan can never be a modern nation state. Musharraf and the people who share his mindset are the end result of the social malaise that has crept into this society due to having a constitution in this country which nobody respects.

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  • saeed
    Jan 12, 2014 - 6:55PM

    @Ch. Allah Daad:
    Wow! JUSTICE Allah daad has already given the verdict. I am sure Justice Ansar Abbasi, justice Asma shirazi, justice hamid mir, justice javed chaudhry and so on would give same verdict.

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  • Dr.A.K.Tewari
    Jan 12, 2014 - 7:32PM

    Pak may be top in nuclear safty record but it is difficult to handle a atom bomb called Musarraf . Deal with him very carefuly . He is an anather bio bomb injurious more than an atom bomb .

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  • Khan
    Jan 12, 2014 - 7:41PM

    Brilliant argument

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  • Dr.A.K.Tewari
    Jan 12, 2014 - 7:42PM

    During exile Musarraf was in touch of the best brain of all walk of life of entire world and Pakistan in particular and all of them have introduced him again in Pakistan as a symbol of change . Now only a secular constitution can esure existence of Pakistan as a sovereign country .

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  • naeem khan Manhattan,Ks
    Jan 12, 2014 - 9:16PM

    “when the “Constitution” was held in abeyance in the past – first on July 5, 1977, by General Ziaul Haq and, the second time, on October 12, 1999, by the petitioner himself – the federal government did not initiate any trial for high treason at the time.” TRY TO INITIATE A HIGH TREASON CASES AGAINST THE DICTATORS WHILE THEY HAD THE GUNS IN THEIR HANDS AND POINTED IT TOWARD THE NATION’S HEAD, redicolous arguments, now, even today Army is interfering in the foreign policy of elected government of Nawaz Sharif. It is semantics and hair splitting, the fact is that it is the essence of the document passed by the Constituent Assembly and the people accepted it as constitution, the court should ask Hafeez Pirzada to facilitate the court because he was one of the main framers of the constitution. What they are trying to do and use any dirty tricks including planting explosives to free Musharraf and his illegal acts even if takes to destroy the constitution and pave the road for other potential military dictators who are waiting in the wings. In other words what ever has happened constitutionally in Pakistan will be null and void since 1973. Bangladeshes wanted to secede and therefore their vote for the constitution did not matter because they cease to exist as Pakistanis citizens. Where were that JADUGAR PIRZADA AND KASURI when the Constitution was being framed and passed by the National Assembly, these 2 lawyers has done more damage to the integrity of the country than any other lawyer, they were always supporters of military dictators, and by the way Kasuri actions should also be null and void while he was foreign minister and his appointment was illegal since there was no legitimate Constitution in the first place as he is arguing, he should refund all the money he has received and spent on his junkets to the State Treasury.

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  • Mirza
    Jan 12, 2014 - 9:20PM

    According to Mush Pakistan does not even exist after the surrender of his brave generals. Even the name of Pakistan does not exist. The country and federation does not exist. When there is no constitution then the federating units are independent states. Each provincial assembly can declare its independence. What a crock of crap his arguments are. Mush would do everything to undermine Pakistan, its existence and its constitution to hide and run.

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  • Prof Ataullah
    Jan 12, 2014 - 10:13PM

    First question is fundamental and very basic. The representatives elected in the era of illegal regime are legal or not. This question has been answered in Aasma Jilani case by J HamoodurRahman, wherein on the one hand the Dictator was declared usurper and on the other hand all actions taken creating rights and obligations were declared lawful.
    Second question that it was half assembly because half were in East Pakistan. Now the leftover Pakistan was the Pakistan and separated portion became a new country. The members of NA were those people who were first time in the history of Pakistan chosen by adult franchise. They were the chosen representatives in accordance with the first constitutional document created by the founding fathers of the very state of Pakistan that was Objectives Revolution. It was the obligation upon and first duty of these representatives to give constitution the people of Pakistan which they performed properly by giving unanimous Constitution. Therefore it can rightly be considered Constitution and cannot be considered only a simple Act of parliament.
    .

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  • Prof Ataullah
    Jan 12, 2014 - 10:23PM

    First question is fundamental and very basic. The representatives elected in the era of illegal regime are legal or not. This question has been answered in Aasma Jilani case by J HamoodurRahman, wherein on the one hand the Dictator was declared usurper and on the other hand all actions taken creating rights and obligations were declared lawful. Second question that it was half assembly because half were in East Pakistan. Now the leftover Pakistan was the Pakistan and separated portion became a new country. The members of NA were those people who were first time in the history of Pakistan chosen by adult franchise. They were the chosen representatives in accordance with the first constitutional document created by the founding fathers of the very state of Pakistan that was Objectives Revolution. It was the obligation upon and first duty of these representatives to give constitution the people of Pakistan which they performed properly by giving unanimous Constitution. Therefore it can rightly be considered Constitution and cannot be considered only a simple Act of parliament.

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  • unbelievable
    Jan 12, 2014 - 10:44PM

    Some defense – akin to saying that you haven’t captured and prosecuted all mass murderers so you you have no right to capture and prosecute any mass murderers.

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  • smbfhs
    Jan 12, 2014 - 11:30PM

    @Mirza: You are just exaggerating the scenery out-of-proportion Sir.
    All Mush lawyers’ argument to me is: **Rescind the time back a moment before the 1971 split,** study the new scenario and re-do the quorum needed for constitution for West Pakistan now Just Pakistan. Bhutto, in haste got over this hurdle by putting a **blanket over everything… just to move-on** and leave the Re-Do job for coming generations. The Zia’s imposed Martial Law was too… in disregard of the incomplete constitution, his advisers probably suggested. It’s exactly this major flaw that gave Army a Free Hand. It had to come up sooner or later. It’s high time we redo it… now for humanity not for Racism or Religious persecution. So just by punishing Mush won’t set an example for future aspirants only because of this big hole in the Pak constitution, so it must be fix now than later. I bet if the issue is raised now it will be raised again. I wonder now…. why each and everything about Pak has fundamental flaws still lying around? Lets start from here, shall we?Recommend

  • Masood Mirza Bar-at-Law
    Jan 12, 2014 - 11:52PM

    Musharraf’s future is a true litmus test for all the Pakistanis across the world. If he succeeds in running away safe and sound, then this whole democracy, independent judiciary, active media & well-aware civil society are simply fake sermons for us.
    If so, it will be once again proven that Civilian Rule neither was nor is independent of military dictates and unfortunately Pakistan can never enter the league of civilized nations. In that case, we Pakistanis will never be able to raise our heads in front of the global community!
    Musharraf might have the backing of a few officers (who have been planting undetonated bombs every time he was scheduled for Court appearance). But it can NEVER be claimed that he has the backing of Army, as a great institution & defender of Pakistan. On 6th January 2014, the COAS visited AFIRM but he did NOT meet Pervez Musharraf admitted in AFIC.
    The entire Army is getting defamation and demoralization because of this Pervez Musharaf and his dramas of bomb implants & sudden illness.

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  • Lhr2Khi!
    Jan 13, 2014 - 1:32AM

    @Masood Mirza Bar-at-Law:
    Sir! What court you practice the law at?
    Did you offer roses to that murderer of Salman Taseer too? How i said that?
    Only because your reasoning is totally out-of-line comparing to a sophisticated educated attorney-at-law. Why? None of your points have merit enough to be brought in-front of any High Ct. or Supreme Ct. judge for consideration. I suggest you might as well sit in a Bar-Exam and get that diploma you are yearning for, the Real One please!

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  • zohaib
    Jan 13, 2014 - 3:52AM

    Very simple case. When 1999 violation be validated by the courts on the grounds of necessity than why not the violation of 2007 can be validated. Violation of 2007 easily be validated on the basis of letter of prime minister shoukat aziz and on the advice of kamal shah who directly advised president to impose emergancy.Recommend

  • Saif
    Jan 13, 2014 - 5:26AM

    “However, many parts of the argument in the review petition were incomprehensible – the language and grammar could not be understood. One such example is the following passage: “And even after passing 18th amendment when validate of proclamation of emergency and accorded by 17th amendment and also in Zafar Ali Shah case stood withdrawn and no case of high treason filed for October 12, 1999 events when even violate article 25 of constitution.””

    A “Masterpiece” produced in a state of inebriation, no doubt!

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  • Dr.A.K.Tewari
    Jan 13, 2014 - 6:52PM

    This case will bring all Pakistani in a state of inebriam if handled just like Butto’s case .

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