By Humayun Gauhar

Forget the chase. Cut to the crap. Unable to deliver, Nawaz Sharif has diverted the national conversation from Pakistan’s terminal problems to trying General Pervez Musharraf for alleged ‘high treason’ under Article 6 of the constitution. In do doing, has Nawaz Sharif unwittingly put himself in the line of fire yet again? Bad habits die hard.

But hang on. Could it be that army chief General Ashfaq Pervez Kiyani (and the army by extension) is the prime target because Musharraf is to be tried only for the November 3, 2007 emergency: the Proclamation of Emergency includes him and others whom Musharraf “consulted”. Could it be that Chief Justice Iftikhar Chaudhry is the second target if legitimizing the October 12, 1999 counter-coup comes into the fray, which it will have to? So as “aiders and abettors” Kiyani better keep his gun holstered and the chief justice behave. How simplistically obvious can you get?

The country’s attention has been diverted, but for how long? As our terminal problems get ‘worser and worser’ people will stop thinking of alleged treason and focus entirely on survival. When survival becomes impossible they will start saying it with sticks and stones.

By invoking Article 6, Nawaz Sharif has unsheathed a sword over the army chief’s head and shown a sheathed sword to the chief justice that can be unsheathed any time to keep them both ‘in line’. Does Sharif realize that there are sharper swords dangling over his head, like the Asghar Khan case? The Supreme Court (SC) can disqualify him as it disqualified another prime minister before him unless Sharif becomes president in September to gain temporary constitutional immunity and appoints an obedient prime minister in his stead – the Asif Zardari formula.

The procedure is not so simple. First, the federal government has to ask the Federal Investigation Agency (FIA) to investigate only the November 3, 2007 emergency. The FIA’s findings will then be considered to decide whether they have a case or not. If they think they do, a special court will try Musharraf and inevitably others.

Certain points and questions need clarification:

Can a treason case under Article 6 be filed by citizens when only the federal government can do so? Can the Supreme Court even consider it? In hearing such a case and suggesting to the federal government to file a treason case, did the Supreme Court perhaps transgress its jurisdiction?

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Which Article 6 would they try Musharraf under, the one that obtained on October 12, 1999 and November 3, 2007 that did not contain the word ‘abeyance’ or the version amended later to contain the word ‘abeyance’? Can one be tried retroactively under a new law made after the fact? Doesn’t this make the amendment Musharraf-specific and smack of malfeasance?

Can justice be selective? Can they pluck only one person out of a group of alleged conspirators when the constitution includes all aiders and abettors?

How can they try Musharraf for the November 3, 2007 emergency only without first trying him for the October 12, 1999 countercoup, for if the SC hadn’t legitimized it the emergency of 2007 would not have happened?

When the October 1999 countercoup comes into the fray, the first question to be asked of Nawaz Sharif would be: “Why did you create such a situation by your acts of October 12, 1999 that left the army no option but to intervene, acts that the SC held were illegal, including possible attempted treason by asking the pilot to take Musharraf’s commercial airliner to India and deliver Pakistan’s army chief into Indian hands?” Cause cannot be divorced from effect for then the effect cannot be understood and an unbiased judgment passed.

Did the November 3, 2007 emergency amount to treason for it was not against the federation but only affected the job of one particular judge and others that joined him? Musharraf gave the reasons in his speech after imposing emergency. Those reasons will be revisited. The then Chairman JCSC, Army, Air and Navy chiefs, corps commanders, provincial governors, prime minister, all will enter the dock.

The argument that parliament upheld the SC’s judgment legitimizing the 1999 countercoup is so much poppycock. The current SC can overturn that judgment as well as any Act of parliament as ultra vires of the constitution and its spirit as it has done before.

The SC first legitimized General Yahya Khan’s coup of 1969 but overturned its own judgment in 1972 in a case filed by my mother and Asma Jilani against the detention of my father and Asma’s father by Bhutto. Many of the same shameless judges who had earlier called Yahya Khan a saviour now called him a usurper. The ‘Asma Jilani, Zarina Gauhar Case’ became a milestone in our judicial history. Bhutto had to lift martial law and introduce an interim constitution in April 1972. But as we have seen, judgments and constitutions do not stop military interventions when the country is being fed to the dogs by civilian wannabe dictators.

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Similarly, this SC can overturn its judgment legitimizing the October 1999 counter-coup. But what will come of the chief justice who took and gave oaths under Musharraf’s first Provisional Constitution Order of October 15, 1999?

If the Supreme Court could overturn the judgment of the Dogar Court legalizing the 2007 emergency why not its judgment legitimizing the 1999 countercoup? Was sanctifying one judgment and overturning another self-serving: to save jobs in the first instance and retrieving them in the second?

What about Nawaz Sharif’s goons storming the Supreme Court to remove an earlier chief justice? Did they not violate the constitution too, more in fact than Musharraf’s emergency? Nawaz Sharif succeeded in dethroning his chief justice; Musharraf didn’t. The judgment absolving Sharif and his storm troopers of that crime needs to be revisited too. Let justice prevail equitably. Isn’t that what the Quran and the constitution say?

General Kiyani and others cannot take the plea that they were following orders, for General Aslam Beg tried this in the Asghar Khan case and failed. Each soldier is responsible for his actions and is entitled not to follow a command he thinks is unlawful.

The reference against the chief justice was prepared by the law ministry and signed by the prime minister. Apart from other evidence, also behind it were the complaints of some lawyers and a High Court chief justice. So in sending it to the Supreme Judicial Council (SJC) President Musharraf was in accord with the constitution. Had the Supreme Court not thrown it out unheard and the SJC been allowed to consider it and give its opinion and necessary legal taken if deemed fit, the need for the November 3, 2007 emergency would not have arisen. Was throwing out the reference by the Supreme Court not a violation of the constitution? Or were the charges and evidence too strong? We don’t know. It needs hearing.

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Now consider Article 5. It says: “(1) Loyalty to the State is the basic duty of every citizen. (2) Obedience of the Constitution and law is the [inviolable} obligation of every citizen wherever he may be and of every person for the time being within Pakistan.” Note the use of the word ‘duty’ for the State and ‘obligation’ for the constitution – ‘inviolable’ is facetious. Is there any such thing as a constitutionally violable obligation? It is editor’s brackets because it was inserted later to replace the word ‘basic’ that makes sense. Which is higher, the State or the constitution? Which is the greater imperative, duty or obligation? A man is obliged under a social contract of marriage to look after his wife’s needs, but he has a Divine duty to raise his children well. Will he remain married if he thinks that his wife is harmful to their children? Not vice versa because in Islam the upbringing of children is only the father’s duty.

If a citizen thinks that the State is in danger, will he let it be harmed just to be obedient to the constitution? The State comes first. The constitution is supposed to protect the State. If it fails to protect it and only produces poor and corrupt governments that harm the State and its people, it becomes amendable or dispensable for a better one. Will you save your limb and let your body die of cancer or will you sever your limb to save your body? A limb is a useful tool, the body houses life and soul. If the body dies you die. If a limb dies you live.

Talking of usurpers, a usurper is a person who seizes something without right, not necessarily by force but also by conning and hoodwinking. Someone who steals an election by engineering it or rigging the ballot and seizes power is a usurper too as are those who aided and abetted him. Does this not attract Article 6?

Let us not get into that for now else the tamasha will never end. Let us focus entirely on our duty of saving the State by curing its terminal diseases and our obligation of providing for our people.