WHICHEVER way the case against the two-coup commando may go, the politicos in his line of defence have already given the people a lesson they cannot afford to ignore.
Never before in Pakistan’s history have we heard so impassioned a justification of subversion of the Constitution as is being offered by Musharraf’s auxiliary force of coup-lovers.
It is said that Musharraf could not have violated the Constitution because there was no properly made constitution in 2007, as the Constitution of 1973 was not drafted by a competent body. The authors of this theory are obviously not concerned with the chaos they are inviting. If their argument is accepted, all laws enforced, actions taken and appointments made since 1973 will be rendered invalid — a much bigger crisis than the one caused by the judgement in the Tamizuddin case whereby all laws that had not received the governor-general’s assent were invalidated.
Another Musharraf defender says that if Gen Musharraf was a traitor why did anyone take an oath before him? Taken to its logical end, the argument will make the entire population guilty of abetment. This is an echo of Justice Munir’s favourite dictum that a successful coup legitimises itself. It is necessary to save politics from being sullied by such theories of compromise.
No treasonable act can be justified by the support it may receive from opportunists or by the inability of the populace to resist it. In this regard, the judiciary’s role is also limited; it may choose not to censure a violator of the Constitution but it cannot legitimise any violation of the Constitution from which it derives its own authority.
The funniest argument from the ‘Musharraf Bachao’ caucus is that an army chief cannot commit treason. Since all coups in Pakistan have been carried out by army chiefs, and no civilian will have the means to do so, coups d’état could be deleted from the list of crimes and Article 6 dropped from the Constitution, on the ground of redundancy.
More significant is the decision by Chaudhry Shujaat Hussain to move an amendment aimed at downgrading the crime of high treason to the level of an offence against the state. Chaudhry Shujaat’s line of argument is not easy to follow. Quite a few offences are already listed in the Penal Code as crimes against the state, and the state is the complainant in most criminal trials. Where does he want to put this new crime against the state?
Chaudhry Shujaat is not the first person to want treason redefined. There was a time when the murder of a husband or employer was described as petty treason, and betrayal of trust was considered equivalent to treason. In England, an offence was described as treason felony till 1848 when it was removed from the category of treason and thenceforth described as felony only. There is no bar to anyone’s wish to define a coup d’état in Pakistan merely as a transient nuisance.
However, the doughty survivor from Gujrat has not been properly advised on the choice of grounds. His argument that a person charged with high treason should be called a traitor only if he has acted in alliance with a foreign enemy is patently facetious. The word ‘traitor’ can be used in a wide range of offences from betrayal of common cause (of an association) to anyone waging war against his own state.
The Oxford Dictionary defines treason as “violation by a subject of allegiance to the sovereign or to the state, especially by attempting or plotting to kill or overthrow the sovereign or overthrow the government”. There is no reference to association with an enemy in this definition.
No amount of hair-splitting can alter the fact that Gen Musharraf committed premeditated treason first in 1999, by overthrowing a government established by law, and again in 2007, by invoking powers to interfere with the Constitution that he, as chief of army staff, did not possess.
These arguments are unlikely to have any effect on men who are ready to barter away reason for fidelity to their patron. But three things have become clear.
First, the nation is not united on punishing Pervez Musharraf, however small in number his defenders may be. Dictators may hang politicians on the basis of a divided court’s verdict; democrats cannot ignore a split in public ranks. There is no point in proceeding against Musharraf any further. The punishment he has undergone should be considered enough. The majesty of the law has been demonstrated.
Secondly, it is fashionable to criticise only military adventurers and courts for military takeovers. The list should also include the politicians who have been keen to serve any man on horseback. Could Ziaul Haq have gotten away with murder and much worse, including the creation of Pakistan’s present-day tormentors, without the aid of politicians who had rushed to join him? The people must realise that the bosom of many a politician is home to a potential dictator.
Finally, it is now established that democratic rule cannot be protected by drafting Article 6 and revising its text now and then. It can only be protected by political parties that derive their strength from cadres who value democracy more than anything else, parties that do not treat the people as hordes of supplicants who can be bought off at a discount. The creation of such political parties should be the main concern of the people and not the fate of Chak Shahzad’s most privileged prisoner.
Thursday, January 16, 2014
Pakistan: The coup-lovers’ brigade
WHICHEVER way the case against the two-coup commando may go, the politicos in his line of defence have already given the people a lesson they cannot afford to ignore.
Never before in Pakistan’s history have we heard so impassioned a justification of subversion of the Constitution as is being offered by Musharraf’s auxiliary force of coup-lovers.
It is said that Musharraf could not have violated the Constitution because there was no properly made constitution in 2007, as the Constitution of 1973 was not drafted by a competent body. The authors of this theory are obviously not concerned with the chaos they are inviting. If their argument is accepted, all laws enforced, actions taken and appointments made since 1973 will be rendered invalid — a much bigger crisis than the one caused by the judgement in the Tamizuddin case whereby all laws that had not received the governor-general’s assent were invalidated.
Another Musharraf defender says that if Gen Musharraf was a traitor why did anyone take an oath before him? Taken to its logical end, the argument will make the entire population guilty of abetment. This is an echo of Justice Munir’s favourite dictum that a successful coup legitimises itself. It is necessary to save politics from being sullied by such theories of compromise.
No treasonable act can be justified by the support it may receive from opportunists or by the inability of the populace to resist it. In this regard, the judiciary’s role is also limited; it may choose not to censure a violator of the Constitution but it cannot legitimise any violation of the Constitution from which it derives its own authority.
The funniest argument from the ‘Musharraf Bachao’ caucus is that an army chief cannot commit treason. Since all coups in Pakistan have been carried out by army chiefs, and no civilian will have the means to do so, coups d’état could be deleted from the list of crimes and Article 6 dropped from the Constitution, on the ground of redundancy.
More significant is the decision by Chaudhry Shujaat Hussain to move an amendment aimed at downgrading the crime of high treason to the level of an offence against the state. Chaudhry Shujaat’s line of argument is not easy to follow. Quite a few offences are already listed in the Penal Code as crimes against the state, and the state is the complainant in most criminal trials. Where does he want to put this new crime against the state?
Chaudhry Shujaat is not the first person to want treason redefined. There was a time when the murder of a husband or employer was described as petty treason, and betrayal of trust was considered equivalent to treason. In England, an offence was described as treason felony till 1848 when it was removed from the category of treason and thenceforth described as felony only. There is no bar to anyone’s wish to define a coup d’état in Pakistan merely as a transient nuisance.
However, the doughty survivor from Gujrat has not been properly advised on the choice of grounds. His argument that a person charged with high treason should be called a traitor only if he has acted in alliance with a foreign enemy is patently facetious. The word ‘traitor’ can be used in a wide range of offences from betrayal of common cause (of an association) to anyone waging war against his own state.
The Oxford Dictionary defines treason as “violation by a subject of allegiance to the sovereign or to the state, especially by attempting or plotting to kill or overthrow the sovereign or overthrow the government”. There is no reference to association with an enemy in this definition.
No amount of hair-splitting can alter the fact that Gen Musharraf committed premeditated treason first in 1999, by overthrowing a government established by law, and again in 2007, by invoking powers to interfere with the Constitution that he, as chief of army staff, did not possess.
These arguments are unlikely to have any effect on men who are ready to barter away reason for fidelity to their patron. But three things have become clear.
First, the nation is not united on punishing Pervez Musharraf, however small in number his defenders may be. Dictators may hang politicians on the basis of a divided court’s verdict; democrats cannot ignore a split in public ranks. There is no point in proceeding against Musharraf any further. The punishment he has undergone should be considered enough. The majesty of the law has been demonstrated.
Secondly, it is fashionable to criticise only military adventurers and courts for military takeovers. The list should also include the politicians who have been keen to serve any man on horseback. Could Ziaul Haq have gotten away with murder and much worse, including the creation of Pakistan’s present-day tormentors, without the aid of politicians who had rushed to join him? The people must realise that the bosom of many a politician is home to a potential dictator.
Finally, it is now established that democratic rule cannot be protected by drafting Article 6 and revising its text now and then. It can only be protected by political parties that derive their strength from cadres who value democracy more than anything else, parties that do not treat the people as hordes of supplicants who can be bought off at a discount. The creation of such political parties should be the main concern of the people and not the fate of Chak Shahzad’s most privileged prisoner.
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