Between Article 6 and Paragraph 66

Daily: The Pulse
Date: 01.01.20

The otherwise much-derided piece of paper, the Constitution of Pakistan, has suddenly
sprung into no less than a noose. On December 19, through a historic verdict, a special
court handed down a five-time death sentence to the former military dictator General
Pervez Musharraf for five various acts of high treason (“sangeen ghadari”) under Article 6
of the Constitution of Pakistan.

General Musharraf violated the constitution twice: first on 12 October 1999 and then on 3
November 2007. The first violation was got protected under the 17th Constitutional
Amendment passed in December 2003; the second violation, however, remained
unprotected inviting the onslaught of Article 6. In November 2007, General Musharraf held
the constitution in abeyance, imposed the emergency as the Chief of Army Staff (COAS),
and not as the President, issued the Provisional Constitutional Order, suspended
fundamental human rights, and put the judges of the Supreme Court (SC) under house
arrest.

From 2008 to 2013, General Musharraf stayed abroad in self-imposed exile. After May
2013, invoked by the then federal government, Article 6 dealing with the punishment for
high treason for abrogating the constitution under any term (such as subverting,
suspending, setting-aside, etc.) started following General Musharraf doggedly. Next year,
on 31 March 2014, a special court charged him in high treason for abrogating the
constitution in November 2007. Being indicted, General Musharraf knew that he was
fighting a losing battle leading him to end up in the jail. He refused to record his statement
under Section 342 of Criminal Procedure Code, the section that validates the principle “no
one should be condemned unheard.” He deluded himself by assuming that without his
statement the court could not (or would not) finalize the case.

From August 2014 onward, the sit-in staged by the Pakistan Awami Tehrik and the Pakistan
Tehrik-e-Insaf attenuated the resolve of the sitting government of former Prime Minister
Nawaz Sharif. Subsequently, in March 2016, by influencing the courts, the then COAS
General Raheel Sharif managed the escape of General Musharraf from Pakistan under the
ruse of a spinal card related neurological disease to be treated abroad. Three years, from
2013 to 2016, were enough to convince General Musharraf of a difference existing between
rising to the corridors of power through the army ranks and through the public ranks.

In the detailed judgment (with a 2-1 split) issued on December 19, paragraph 66 caught
attention of every eye. In the paragraph, the judge Justice Waqar Ahmad Seth gave his
opinion to hang even the dead body of the convict for three days in the D-Chowk of
Islamabad. By saying so, the judge set the standard of punishment high. Though
paragraph 66 stirred much furor, the implied purpose was not to express vengeance but to
put the message across that any violator of the constitution deserved no less than such
type of barbaric treatment. Nevertheless, coming out of redundancy bordering on
desuetude, Article 6 showed its utility. To the dismay of the pro-Musharraf school, against
the crime of high treason committed in November 2007, the judgement made the original
prospective application and not the retrospective application of Article 6 that experienced
an amendment in 2010 – the 18th Constitutional Amendment dealing with the nuances of
the term, abrogation. That is, in its pre-2010 spirit, Article 6 meted out the capital
punishment to the violator of the constitution.

While disdaining the short verdict, on December 17, the response of the Inter-Services
Public Relations (ISPR) was this: the army’s rank and file felt a lot of pain and anguish over
the judgement. With that, the ISPR dismissed the judgement overlooking the fact that both
the ISPR and the retired military generals in talk shows used to disassociate themselves
from the deeds of General Musharraf by declaring him an individual responsible for his
actions. The about-face astonished everyone. On December 19, holding a press
conference, the ISPR corrected itself by bringing into picture the scapegoat of the bogey of
a hybrid war meant for inciting the state institutions to fight against each other. The
spokesperson further said that the man who had served the country for 40 years and
fought wars for the defence of the country could surely never be a traitor. The ISPR
overlooked the fact that Article 6 was no respecter of any act of fighting wars for the
country or serving the country for a length of time. This time, the ISPR spoke of the army,
the people and the country, but it did not utter even a single word on the sanctity of the
constitution. Similarly, the ISPR evoked the ethos of humanity and religion, but it overlooked
the fact that with the declaration of the emergency on 3 November 2007, General
Musharraf had suspended fundamental human rights. The point is simple: no matter how
much service and sacrifices has an army man rendered, a coup-maker cannot be glorified,
not to say be pardoned.

Apparently, the incumbent government was caught napping. Neither the government nor
the army was expecting any decision at all or a decision of such a consequence. The
government waded into the issue to neutralize the demoralizing effect of the judgement on
the pro-Musharraf school. Paragraph 66 offered the mole required for making a hill out of it.
The success of the narrative of the pro-Musharraf school is that it has shrewdly made
paragraph 66 overshadow Article 6: the charge of high treason is subjected to the approval
of the mode of execution of the culprit. This is where the irony lies.

By law, the sitting government cannot challenge the saneness of the judge apropos of
paragraph 66 in the Supreme Judicial Council. The press conferences done to express
such a resolve is just to give vent to the frustration the judgement caused. The only
recourse left is to file an appeal in the SC against the decision. The challenge to the SC
would be how to convert the five-time capital punishment into a one-time sentence of
lifetime imprisonment.

Having rejuvenated, Article 6 has gone relevant. The higher judiciary asserts its
independence. Instead of being thrown into the dustbin, the constitution is recognized as a
sacred document.

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