Is the Constitution of Pakistan Positivist in nature, or is it Naturalistic?
It is easy to say it is Naturalistic right off the bat: the Constitution begins by vesting the sovereignty of not just this country, but that of the entire universe in Allah.
The first sentence of the Preamble to the Pakistani Constitution reads:
Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;
If the above words are to be taken literally, then Pakistan is not a sovereign state, but is rather a trust; this is no doubt a legal absurdity. Pakistan is. in fact, a sovereign country, where a Parliament makes laws.
Pakistan is an Islamic Republic: the term is a unique one.
A Republic is a state in which supreme power is held by the people and their elected representatives, and which has an elected or nominated president rather than a monarch – a sovereign state in its own right. An Islamic Republic however is a republican government which is governed on the basis of the Laws of Islam.
The Constitution, in its Principles of Policy makes Naturalistic references. Article 37, for example discusses eradication of evil as a state policy, which, is open to Naturalistic interpretations.
Are these sufficient to consider the Constitution as Naturalistic?
I would argue that the Constitution of Pakistan is Positivist.
Pakistan is a sovereign state, with a Parliament that enacted its Constitution, and which can make laws within the limits it set upon itself through the Constitution. Pakistan is an Islamic Republic because the Constitution says so.
The Parliament has unlimited power to amend and modify the Constitution, via the mechanism it has developed in the Constitution. This is reaffirmed by Articles 239 (5) and (6), which state:
Article 239 Constitution Amendment Bill
(5) No amendment of the Constitution shall be called in question in any court on any ground whatsoever.
(6) For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution.
The Constitution makes it abundantly clear that the there is no limitation whatsoever upon the Parliament to amend any portions of the Constitution; no court shall entertain any question regarding the validity of any amendments to the Constitution.
The Parliament can, at least in theory, repeal provisions that make the Constitution look Naturalistic.
Above all, I would argue, the Constitution, created by an Assembly of the elected representatives and can be modified by the Parliament, in itself is a positive law, therefore it not just is Positivist, but should be interpreted this way too.
Is an Immoral Law a Good Law?
The question may be a misleading one; to clear this, I will not look into what the words moral (or immoral) or good might mean in this context, I would rather define them just as we begin.
Moral, in this context would be concerned with the principles of right and wrong: in the sense of what one believes or perceives to be wrong.
Good, in this context would mean valid and acceptable.
This simplifies the question at hand: Would a law, which is wrong in principle, be deemed to be a valid and acceptable law?
This question deals with the centuries old debate between the Naturalist and the Positivist view of law.
According to the Positivist view, a law is a law when it is validly enacted or proclaimed, and is binding in its entirety, regardless of whether it is moral or not.
The Naturalist view on the other hand is that, an immoral law is not a good law: a law must be moral to be valid. It must conform to the basic standards of right and wrong; a law which is unjust or immoral will not be law.
On the offset it is easy to dismiss the Naturalistic view: law is what distinguishes the right from the wrong. How could a law be wrong?
To better understand the Naturalistic view, and to appreciate for what it stands, we must understand what law is, and what purpose it serves.
I would argue that law is the collective embodiment of the rules a society makes for itself. Law is the foundation of a civilized society. Just as morality of the society evolves, so must the law. An old law, by today’s standards may be immoral and unjust.
An example may be the Witchcraft Acts enacted by different countries throughout the world in the 16th Century, and the inquisitions, trials and lawful executions that were done under them, by today’s standards are immoral and unjust. Surprisingly enough, these remnants of the past continue to exist in statute books of some countries.
Let us change the question to this: would the implementation of the Witchcraft Act, to accuse and punish an individual on the pseudoscience contained in the law, be moral and just? Should it be enforced?
In Plato’s work Crito, the reason Socrates gives for his obedience to the law and the nature of the law, reflects upon the utility of law for a society. Law is what a civilized society is built upon.
It also makes one see the potential for abuse in a democracy. Democracy has the tendency to become mob rule: where the majority oppresses a minority.
Abusive laws are all around us: law has mandated slavery, racial segregation, suppressed classes of humans based on their sex, economic status, race, color and lineage. This was true in the past, and is still true today in many jurisdictions.
The concept of liberty, individual autonomy and human rights play their part in protecting an individual. According to a widely circulate quote, misattributed to Benjamin Franklin:
Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.
Liberty and Freedom are a recognition of certain rights which may not be taken away, not even by a 99% vote.
Many modern constitutional democracies like the United States, India, France, Germany etc. do recognize this. The US Bill of Rights and the French Declaration of the Rights of Man recognize certain rights, freedoms and liberties that the state cannot take away, under any circumstances.
This may be seen as either Naturalistic or Positivistic; consider the following statements:
Human Rights are protected because the Constitution says they are protected.
The Constitution protects Human Rights because they ought to be protected.
The first one sees Constitutional schemes to protect rights as Positivistic and the second sees them as Naturalistic.
Under either circumstances, an immoral law will not be a good law, regardless of whether it isn’t a good law because it is immoral or because another, higher law, the Constitution, says so.
Things become interesting when in the absence of a Constitution, an immoral law is considered in abstract: would a law condemning disabled children to death, be a good law?
The answer may depend on whether it is enforced. The Witchcraft Act is a valid piece of legislation existing in the statute books of countries like South Africa and Israel. Is it enforced? No. Would it still count as a good law? That might be a question of whether it would be enforced when it needs to be.
Would I personally enforce an immoral law? Not if it violates the rights and liberties of a person for no fault of their own. At the end of the day, law is the embodiment of the collective wishes of the people. If the majority brutally crushed the minority using the law, then instead of serving as a utility the law would become a weapon or an excuse to commit atrocities – the Nazi Germany, for example, used laws to exterminate the old, sick and disabled, and minorities.
As part of my LLB, I wrote a research essay on Suicide and Assisted Suicide.
The research essay was titled “Does Right to Life include a Right to End Life? Legal challenges to suicide and assisted suicide.”
In the essay I explored the Right to Life, protected by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. In the analysis of this right, I explored its content: whether it entails a right not to be arbitrarily deprived of life or does it ensure complete autonomy over one’s life and the choice to end it.
I explored suicide, and its history as criminal offence.
I moved on to consider the plea of “Protection of Cruel, Inhumane or Degrading Treatment or Punishment” raised by people seeking to end their life.
Next, I considered the current laws of the United Kingdom and India, and also the Dutch law that in limited circumstances permits assisted suicide.
Then I discussed the interests of the state in preventing suicide, discussing the rationale behind the need of the state in preventing suicide, and providing a good standard of life for its citizens.
Finally, I drew a conclusion from the entire research.
The original essay was much longer, however I had to remove certain parts and condense other parts to stay close to the recommended length of 2,500 words; even the final draft exceeded the word count by almost a 1,000 words. All the references were added in-line with footnotes and a bibliography in the end. Contributing to Wikipedia over the years gave me a great habit of adding in-line citations, which proved to be immensely helpful in writing the essay.
I have been away from blogging for quite some time. A long time really.
Here’s why. My draft section is piling up. I usually begin writing, then leave it incomplete, saved as a draft, and, since I blog about current/political issues, it becomes irrelevant over time.
I haven’t neglected this blog entirely. I’ve been updating the themes and plugins, and most importantly WordPress itself. WordPress is a great software. I even turned on HTTPS (the secure/encrypted variant of the Hypertext Transfer Protocol).
I am in the final year of my LLB. Four exams and an essay (which I’d post here, just like my presentation) to go. I’d be free by the end of May.
I plan on being more serious and dedicated to blogging as soon as I’m done with my exams. To that end, I’ve created an Urdu version of my site, and blog, and plan to blog bilingually.
I’ve had leaning a bit of Spanish and Esperanto some months back, via Duolingo. Spanish is the second most spoken language after Mandarin (that’s the name for Chinese). Mandarin is a bigger challenge, perhaps for a later stage in life. Esperanto is a constructed language; it did not evolve like other human languages, but was constructed – created, over a hundred years ago. It has accumulated a wealth of literature which I’d love to explore. Maybe I’d do a blog post on languages.
While I’m a native speaker of Urdu, my reading and writing skills lag behind. I hope my blogging in Urdu polishes them and brings them at par with English. After all, the more languages you know, the better you may express yourself!
I have a lot to write about; will be back by the end of May, a lawyer by then. 🙂
Shutdown to Rebuild, Wait, What?!? Seriously? What were the PTI’s creative team thinking when they came up with this slogan?
On second thought, this might be perhaps the most clever way to present something that the party plans to do which happens to be so inherently outrageous and morally and legally unacceptable that the party leadership itself condemned the same in the past.
While I condemn murders of MQM workers, the loss to poor daily wage workers is back breakng.Karachi also loses approx. Rs 10 B /1day strike
Wait a second: the words ‘Shutdown’ and ‘Lockdown’ as display pictures next to a tweet condemning the same. Now that’s irony and hypocrisy.
That were PTI Leaders Arif Alvi and Khurrum SherZaman criticizing MQM’s strike on 1st May 2014. Few months later, the party is doing the same thing that they know and believe is wrong: PTI is planning to shut down major cities and eventually the whole country. Shutdown or Lockdown to Rebuild. Its an oxymoron.
And not just the PTI leadership, their supporters too:
1 day strike in Karachi = Rs.10 billion loss to economy. Mqm Terrorists always acting as mercenaries of RAW #NamaloomAfraad#MQM
But what can we say? The PTI is adamant to go ahead and shutdown Karachi, and Lahore, followed by the whole country. Just as they did in Faisalabad.
Arif Alvi stated that the loss suffered is over 10 billion for a day the city of Karachi is shutdown. Khurrum SherZaman too states that the loss is in billions. Not just this, we have seen the nuisance Islamabad. Yes, I’m talking about the assault on the Parliament and Prime Minister House. The attack and ransacking of PTV. Occasional attacks on Geo News office.
Pakistan suffered more than just this. This paid protest of PAT and PTI caused much more losses. The Chinese President canceled his visit to Pakistan, that put a question mark (or possibly a full stop) on the future of $32 Billion worth of investment.
The unrest and clashes in Faisalabad, and the enforced shutdown of the city following the death of a PTI worker: it is all condemnable in the strongest words.
But why is PTI doing this then? Because their beloved leader said so.
Lethal mixture of Jamaat e Islami and MQM, A party which listens to no sane voice…. Yeah you guessed it right. PTI it is.
PTI talks about Justice. Well, even the name of the party Pakistan Tehreek-e-Insaaf translates to Pakistan Movement for Justice. However the leader of the Party, cricketer turn philanthropist turn politician, is now a proclaimed offender in Anti-Terrorism Cases before an Anti-Terrorism Court in Lahore (well yes, terrorism in Pakistan is defined too broadly, therefore some of the acts he and his supporters have done fall under the category of terrorism), and he has proudly challenged the incumbent government to try and arrest him.
We did not join long march despite agreeing with many of the demands because v believe true change comes through ballot not street pressure
Shutting down a city, just like they did in Faisalabad, if evaluated under the UK Anti-Terror legislation, is an act of terrorism. Yes, the same Anti-Terror laws for which the PTI grilled the MQM chief Altaf Hussain, for this his statement about the Three-Swords monument in Clifton, Karachi.
Imran’s aid and ally, Sheikh Rasheed Ahmed has gone the extra-mile in calling out to the rioting workers of his party the Awami Muslim League and those of PTI to damage, burn and destroy public and private property to achieve the above stated goals. Incitement to an offence or speech that disrupts public order is criminally wrong. What Sheikh Rasheed has said does not sound just wrong, it is insane, treacherous.
Feisal Naqvi, a Supreme Court advocate, sketched Imran’s desperation to rid Pakistan of its elected Prime Minister in form of humorous future unreleased plans from Plan E to Plan Z; Plan X of which states:
Plan X: Imran Khan files a petition before the Supreme Court, asking for the Independence of India Act, 1947 to be declared unconstitutional. After the court accepts his petition, the Queen of England then appoints Imran Khan as her Viceroy.
Fortunately, or not so for Imran and PTI, English only has 26 alphabets and just like the article above, the number of plans end at Plan Z. However, people have suggested different approaches to this problem.
The PML-N and PTI are quite similar, ideologically. They are both working in the same way, for the same ideology. They even share the same vote bank. Just as Babar Sattarrephrases it in a question:
Isn’t the Shahbaz Sharif model of governance in Punjab very similar to what Imran Khan is promising in Naya Pakistan: a strongman at the top and everything falling in place under him intuitively?
Of the certain aspects of Imran Khan’s behavior and policies, as Babar Sattarstates in the same article, that would give even his well-wishers the jitters, that most bothersome is the inability of the PTI leader to distinguish between the State and the government and the fact that Imran is willing to hold a gun to the country’s head to negotiate with the PML-N.
2: His vigilantism. Khan’s argument is that since he didn’t get justice on his terms, he’ll now have to shut the country down. Can any rule of law proponent justify such course of action? There is a pattern here. In 2013, PTI had asked its vigilantes to forcibly block NATO containers in KP. That circus was eventually dispersed by court orders.
3: Khan’s inability to distinguish between the state and government. Whether it was Khan inciting everyone to refuse paying taxes and utility bills and sending money through legal banking channels, or his Plan C of shutting Pakistan down, he seems to have no qualms holding a gun to the country’s head to negotiate with PML-N.
4: Khan’s polarizing politics. In a democracy people need to be brought together to forge consensus and get things done, not torn apart. Khan’s message of hope is wrapped in bitterness and hate, which has polarized this country. Today Pakistan is a divided house; even its rational segments at war with one another over political differences. Forget Khan’s ire for opponents and critics, is there room for dissent even within PTI?
We really need introspection and self-accountability all around: the PML-N has to reflect upon whatever has happened the last few months and how they should have handled it; the PTI needs to realize that ends don’t justify means. Both parties need to work together, get to the negotiation tables and resolve their conflicts in a sensible manner, for the sake of the nation.
At SZABIST, the students held a candlelight vigil in memory of those slain in the name of blasphemy.
Over the last month a Christian couple in the town of Kot Radha Kishan, some 60 kilometers southwest of Lahore were beaten and burnt to death after they were accused of blasphemy by their creditor, which was followed by another horrifying and deplorable incident in Gujrat where a man in police custody was hacked to death by an axe wielding police officer, again in the name of blasphemy.
Below is the speech I gave at the occasion.
We have all gathered here today because we chose to not to remain silent on the brutal murder of Shama and Shehzad.
They both were burnt alive in the same place where they worked all their lives as a bonded labor.
That fateful day, it wasn’t just the two of them who were killed: Shama was four months pregnant.
But this isn’t about just these two.
According to the Human Rights Commission of Pakistan, between 1st January 2013 and 31st December 2013, there were 540 ‘victims’ of blasphemy.
When we step into law school, in the first year we are taught about the values of Rule of Law; that no one is above the law. We are taught that no one can be sentenced or punished without due process of the law.
Sadly, 540 fellow citizens were condemned to their horrifying deaths last year by mobs, by lunatics, by murders, after they were accused of blasphemy. In this country, as rule of law erodes, we are facing increasing incidents of extra-judicial killings, vigilante justice and rising crime.
Yes, it is a crime to take someone’s life. Yes it is a crime to burn someone alive, or to hack someone to death. Sadly this has happened over the past week in our country.
This is a country, where even lawyers are killed for defending a blasphemy accused in a court of law, where politicians calling for reform of these laws are killed. I am talking about Rashid Rehman, a lawyer murdered because he was defending a blasphemy accused in court, I am talking about Salaman Taseer and Shahbaz Bhatti.
We all agree that this heinous crime must not go unpunished. We wish to see these killers being brought to justice.
Because as the saying goes:
“Injustice anywhere is a threat to justice everywhere.”
Every year Pakistan celebrates its Independence Day with renewed sense of ‘patriotism’ and great enthusiasm and zeal. This ‘patriotism’ is limited to love of flying the National flag and decorating residences with miniature flags.
This year, a very small minority took parts in ‘Azadi‘ and ‘Inqilab‘ marches from Lahore to Islamabad, in an attempt to de-seat the democratically elected government.
Those few aside, the Independence Day was marked with celebrations in schools, colleges and universities in the morning, parades and flag hoisting ceremonies elsewhere in the morning. Unfortunately, these brief moments of national pride were masked on prime time television by these marches.
Here in Karachi, restaurants offering breakfast and brunch were jam packed in the morning and early afternoon, and malls, beaches and large public parks were crowded during the day and the evening. People from all over the city were enjoying the Independence Day in their own unique ways.
I went out with some friends for breakfast at around 10:30 AM – not my usual breakfast time. The place we had decided upon had more people present than the chairs they had, and unfortunately for us, we were amongst those who were without it. After some waiting, we managed to be seated along with two other strangers, had breakfast with them and split the bill. Most of this time was not spent eating or chatting, but rather calling out for the waiters to be served.
My friend had parked his car right under a “No Parking” sign. When I jokingly pointed that out, he pointed out the National Flag fixed right above the sign. “Can’t you see? This is Pakistan” he jokingly replied. There were a few dozen cars already parked in front of those three “No Parking” signs.
For breakfast we had Halwa Puri and then went to a nearby milk shop and got ourselves a tall glass of lassi. After our breakfast, my friend remarked that we were the ones actually celebrating Independence Day, since we had breakfast with two strangers – unknown Pakistanis.
Later during the day, I could see quite a lot of patriotic posts on social networking websites; the patriotic content including “Happy Independence Day” was much, much more than what could be observed on Twitter regarding these two marches.
Oh, just so you know, some PAT workers replied to my tweet regarding Qadri’s comeback, most of their messages were nonsense repetitions of a simple (false) statement, containing #hashtags which they wished to trend.
Some local malls had declared “Family Day” – a cunning expression that means females only, and males might be allowed inside if accompanied by females. One such mall was the Dolmen City Mall in Clifton where I happened to go.
The mall was decorated in Green and White, with a crescent and a star hanging high above. Some people had painted the flag on their faces. There were cutout portraits of Muhammad Ali Jinnah, Liaquat Ali Khan and Fatima Jinnah around the mall. Many people were actually queuing up to take a picture of their kids with them.
The background music in the mall were patriotic songs and even the instrumental national anthem. Most of all, there were Azadi discounts, ranging from 10% to 50% on many outlets in the mall – perhaps that was the main attraction that day.
The day ended in a grand fireworks show – a rarity in our country. Well the show was privately organized and not by the Government as is the case around the world.
As the day, and its celebrations ended, and the clock struck midnight, the date changed to 15th August 2014. The real Independence Day of Pakistan. This day was only celebrated in India as their own Independence Day, which in fact was the day when Pakistan and India, both, came into existence. Here in Pakistan, things went quitter.
 – Azadi – آزادی – Independence: A caravan of Pakistan Tehrik-e-Insaf (PTI) workers lead by Imran Khan.  – Inqilab – انقلاب – Revolution: A caravan of Pakistan Awami Tehrik (PAT) activists lead by Tahir-ul-Qadri.
You rallied for change just a year ago in the 2013 General Elections. Your party bagged 7.7 million votes in the General Elections, which set your party as the 2nd most popular party based on the number of votes it received.
Your call for change came at a time when the Election Commission, and the returning officers were screening potential candidates, and many were disqualified on the grounds that they evaded and did not pay taxes, and utility bills. 7.7 million Pakistanis pinned their hopes to your call for a change.
Unfortunately, this change seemed to be just another election buff. After the elections your party rejected the results, protested, and made government in Khyber Pakhtunkhwa.
I would like commend your party’s policies on improving the educational infrastructure and the quality of education in Khyber Pakhtunkhwa. Credit should be given where it is due.
However, your attitude and actions have shown that you too, sir, are one of those elites who bend the law and Constitution to use it to their advantage. You and your party is not respecting the mandate given to your political opponents; you have shown yourself to be no better than those who were totally rejected by the electorate.
You had made a promise of holding local government elections in Khyber Pakhtunkhwa within three months. It has been over a year now, and your promise has been just mere words. Is this call for Change just as another hollow promise?
The Azadi March which you and your party came up with had dubious goals initially, and later on you settled upon asking a democratically elected Prime Minister to resign, threatening civil disobedience and public disorder. This is clearly against the law, and the Constitution. This, as defined by Article 63(1)(g) of the Constitution, is a ground for disqualification for members of the Parliament.
While protesting peacefully and without arms is a fundamental right of assembly under Article 16 of Constitution, this does not cover attempts to overthrow a democratically elected government, which may be classified as treason. Your actions not just undermine the rule of law, but also violate the laws of our country, and our Constitution.
So, at this point, sir, I am left with some questions unanswered:
Would the PTI government in Khyber Pakhtunkhwa promote civil disobedience and non-payment of utility bills and taxes as a Government policy?
Would the PTI government in Khyber Pakhtunkhwa not collect GST and other provincial taxes, or would it be hypocritical at this point?
What difference, if any, remains between yourself and your party’s lawmakers who would not pay taxes and utility bills and those prospective candidates who were rejected by the returning officers for evading taxes and for non-payment of utility bills?
If this civil disobedience and public disorder initiated by your party leads to disqualification of PTI lawmakers, including yourself, under Article 63(1)(g) of the Constitution, would you still blame it on this democratic government?
Would you still blame the Punjab police for public disorder in the Capital which would undoubtedly result in PTI’s march towards the Red Zone?
The election reforms you seek are a welcomed change. However this change should come from your elected position in Parliament as a lawmaker and not from a show of force of your street power while laying a siege to the Parliament.
Whether General Pervez Musharraf’s régime was beneficial to Pakistan or was it tantamount to destruction of the democratic process, whether or not he was a good dictator; it is all a debatable matter. He, for the first time in Pakistani history, is going to trial for the heinous crime of High Treason.
Pakistani history is marred with the military’s interference in Politics, so much so that out of 12 holders of the office of the President, 4 were serving Generals of the Pakistan Army, who came to power as a result of a coup d’état, overthrowing a legitimately elected government. Even the inaugural holder of the office of the President of Pakistan was a retired army General.
The takeovers were prohibited under the Constitution of Pakistan, and so these Generals, excising their military might, not legal authority, to suspend or hold in abeyance the Constitution of Pakistan, make amendments to it in attempts to legitimize their rule. This act, as defined in the constitution, is an act of High Treason.
Article 6 of the Constitution of the Islamic Republic of Pakistan states:
6. High Treason (1) Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason. (2) Any person aiding or abetting or collaborating the acts mentioned in clause (1) shall likewise be guilty of high treason. (2A) An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and a High Court. (3) Majlis-e-Shoora (Parliament) shall by law provide for the punishment of persons found guilty of high treason.
From the words of the constitution, it is quite apparent that not just Musharraf, but all these Generals committed an act of High Treason by abrogating and subverting the constitution; Musharraf did this twice. The punishment for high treason as mentioned by Article 6 clause (3) of the constitution was provided by the Parliament a month after the constitution itself was enacted, under the short, 3 Section long, High Treason (Punishment) Act, 1973 (LXVIII OF 1973). Section (2) of this Act states:
2. Punishment for high treason, etc.: A person who is found guilty (a) of having committed an act of abrogation or subversion of a constitution in force in Pakistan at any time since the twenty‑third day of March, 1956; or (b) of high treason as defined in Article 6 of the Constitution, shall be punishable with death or imprisonment for life.
Life imprisonment or death: High treason is a serious crime. It is perhaps the gravest of offences. Why then, one may wonder, Yahya Khan and Ayub Khan walk away without ever being reprimanded for their crimes against Pakistan? And what took it so long for the trial of Musharraf to commence after he had stepped down?
The answer is: The Pakistan Army is really really strong. These men took power when they were serving as the Army’s Chief of Staff, and used their position of power to command the Army to do their biddings. The Army protects its servicemen even after their retirement, and so Musharraf had a cover. Musharraf resigned in 2008 after the new parliament took office after the 2008 General Elections, and expressed its intentions to impeach him. The day he announced his intentions to leave office by stating that he had tendered his resignation to the Speaker of the National Assembly as under law, the man, in face of impeachment by the Parliament, was given a guard of honor by the Army before he left for the United Kingdom to seek refuge from the cases against him since his Presidential immunity lapsed upon resignation.
He spent about 5 years in self exile, and returned when his daughter was able to secure Protective Bail for him from the Sindh High Court; there were arrest warrants pending against him. He came during the time of elections when a caretaker Government was in office for the purpose of the conduct of the 2013 General Elections. When the Islamabad High Court had canceled his bail in a case, his security staff, comprising of military and paramilitary personnel, escorted him away from the court room even though the Police officials in the court room were ordered to arrest him.
When he finally surrendered, his farmhouse (a mansion) was converted to a sub-jail, probably to cut costs on providing him protection: he has angered many people by his constitutional and unconstitutional moves while holding the office of the President. This was the first time, a former army General was arrested, that too the former Chief of Staff.
Musharraf was arrested in multiple cases: Assassination of Former Prime Minister Benazir Bhutto, Murder of Former Balochistan Governor and Chief Minister Nawab Akbar Khan Bhugti, the Lal Masjid Operation and Judges’ Detention Case.
The last of these cases occurred when Musharraf proclaimed a state of emergency and suspended the Constitution of Pakistan for a second time. It is pertinent to mention that he is the first of all military rulers in Pakistan to suspend the Constitution twice.
The Supreme Court, on a petition, asked the Attorney General for the Government’s response upon prosecution of Musharraf for High Treason. The Caretaker government responded that it was not its mandate to take a decision on the matter, and that the same should be decided by the upcoming government. The Senate in the meanwhile, and previously too, passed resolutions calling upon prosecution of Musharraf for High Treason.
The government of Nawaz Sharif, formed after the 2013 General Elections, within weeks of taking office through the Interior Minister Chaudhry Nisar Ali Khan expressed the government’s intentions to prosecute him. They wrote a vague letter to the Supreme Court stating the same, however it lacked instructions of commencing the trial.
It took five months, a sectarian violence in Muharram’s Ashura in Rawalpindi and a curfew in the Capital’s twin city, for Nisar Ali Khan the Interior Minister to announce at a hurriedly called press conference that the Government would be writing to the Supreme Court to form a Special Court under law for the High Treason trial. The announcement was described as a move by many to divert attention from the violence and curfew. True or not, the government through the Interior Secretary, wrote to the Chief Justice of Pakistan, with instructions to constitute a Special Court under the law for the purpose of the trial.
The Chief Justice in turn wrote to the Chief Justices of the 5 High Courts, requesting nominations of judges for the Special Court. Out of all the received nominations the Chief Justice had to select 3 judges for the full bench. Perhaps in order to avoid controversy, Justice Iftikhar Muhammad Chaudhry, the Chief Justice, forwarded the nominations to the Prime Minister for final selection, and three judges, one each from Balochistan, Sindh and Punjab were chosen to hear the trial. Justice Faisal Arab of Sindh, being the senior most, will head the trial.
Meanwhile a Musharraf’s North America based spokesman lashed out at the government for the move, criticizing it as “undermining Pakistani Military”. He might have forgotten that Musharraf lead the Pakistani Military into an unauthorized warfare against India in the Kargil War from May – July 1999, humiliating Pakistan in front of the world.
Under law, the Special Court enjoys exclusive jurisdiction to hear the treason trial, and no other court, including the Supreme Court can interfere or intervene in its matters and proceedings.
The investigation in this case isn’t complete, and a member of the 4 man investigation committee said:
We would then be in a position to get warrants or directions from the special court for summoning the people who have evidence but were not cooperating at the earlier stage of investigation.
The army might not save his skin this time. A current serving officer of the Pakistan Army, stating that what he was about to say would be his own views not the Army’s since he is bound by the law, to not to make official remarks, while explaining the army’s current stance, more specifically on the War on Terror personally told me:
The Military’s internal policy has changed. It is no longer what it was during the time of Zia-ul-Haq and Musharraf, yes I was in the army during those times. It is no longer like that, and I wouldn’t discuss that; currently the Army has just one mindset: we are subordinate to the Civilian Government. If we are ordered to fight, we will fight, if we are ordered to stop fighting, we will stop, no questions asked.
Is this trial too little too late, or just not relevant to the interests of Pakistan. Over the last few years, both Turkey and Bangladesh tried and sentenced to death their former military dictators and their abettors. Would Pakistan follow suit? Musharraf’s trial is not just about him, it is about the Rule of Law over any individual in Pakistan. If Musharraf is punished for his crimes against Pakistan, this would serve as a deterrent to future military ambitionists who aim to usurp powers like those before them. This should be done for Pakistan to evolve as a democratic state where the law is above all; it would officially mark a new chapter in Pakistani history, where the armed forces would be what they should have been: subordinate to the government of the people.