‘Abraham Lincoln’ must be punished for High Treason

M. Jashim Ali Chowdhury

Published in the 60 DLR (2008) December Issue, Journal Section at pp. 34-37.

General Pervez Musharraf liked to be called as Abraham Lincoln of Pakistan. In his speech to the nation after suspending the constitution for the second time and issuing a Provisional Constitutional Order ‘as the Chief of Army Staffs’ whereby he replaced Chief Justice Iftikhar Chaudhry with Justice Hameed Gogar and detaining the Supreme Court judges, he asserted that he had to violate the constitution to protect the constitution (Mushaaraf’s Mini Martial Law, Ali Iteraj, the Daily Prothom Alo, 5th November 2007). The reasons advanced by Musharraf for proclaiming emergency were, in his own words, "Judges were interfering with the government and that Islamic militancy posed a grave threat to the country" (Sad day for Pakistan Musharraf’s obsession with power spells danger, the Daily Star Editorial, 5th November 2007). He blamed the Judiciary for exceeding the limits and did not hide his intention to alter the Supreme Court.

Usurpation: the Musharraf Style

The track record of this self declared ‘Abraham Lincoln’ may be summarized as follows:

• On 12th October 1999, General Pervez Musharraf, the immediately ousted Chief of Army Staff and Chairman, Joint Chiefs of Staff Committee, through an unconstitutional measure took over the government and the affairs of the country, abrogated the Constitution and dissolved the central and provincial legislatures. On 14th of October 1999, the Provisional Constitution Order No. 1 of 1999 was issued which allowed the Constitution to operate subject to the Order. The President Rafiq Tarar was ‘allowed’ to remain in office.
• On 12th May 2000 in Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), the Supreme Court of Pakistan validated the takeover on the ground of ‘necessity’ and allowed Pervez Musharraf a three years’ term to return to democracy
• On 20th June, 2001 the Chief Executive issued Chief Executive’s Order No. 2 of 2001 which provided, ‘The person holding the office of the President of the Islamic Republic of Pakistan immediately before the commencement of the Proclamation of Emergency (Amendment) Order, 2001, shall cease to hold the office with immediate effect.’ On the same day, the Chief Executive issued Chief Executive’s Order No. 3 of 2001 and the Preamble to the said Order read: “Whereas it is expedient to provide for succession to the office of the President of the Islamic Republic of Pakistan and for matters connected therewith or ancillary thereto; Now, therefore, ………………………the Chief Executive of the Islamic Republic of Pakistan is pleased to make and promulgate the said Order”.
• On 9th April 2002 on the eve of expiration of the three years period, the Chief Executive and the President of Pakistan issued Chief Executive’s Order No. 12 of 2002 (Referendum Order). The Preamble to the Referendum Order, inter alia, provided as under: “……it is imperative to consolidate the measures taken by the Chief Executive of Pakistan for the reconstruction of the institution of state for establishing genuine and sustainable democracy …….. and it is in the supreme national interest to obtain a democratic mandate from the people of Pakistan through referendum for General Pervez Musharraf to continue to be the President of Pakistan.”
• Musharraf took over the charge of the government when the institutions of State stood seriously weakened and the democratic and moral authority of the government of the day stood gravely eroded (The Supreme Court in Syed Zafar Ali Shah). He dismissed the President because he thought it ‘expedient’ and so he was ‘pleased’ to take upon himself the charge of the President. The Zafar Ali Shah court thought it necessary to allow Musharraf three years to return to democracy. But he thought it more necessary to continue in power to return to ‘genuine and sustainable democracy’

Why the trial is important?

The judiciary and judges have got some realistic problems. When a Martial Law is actually declared and an usurper is firmly settled, the courts had to travel through the doctrine ‘efficacy’ (State v. Dosso, Uganda v. Commissioner of Prisoners Exparte Matuvo) or ‘necessity’ (Nusrat Bhutto v. Chief of Army Staff, Zafar Ali Shah v. Pervez Musharraf) to find out some excuse upon which to legalize the junta and thereby save the ‘skin’ of the judiciary.

Again, when the dictator has fallen and there has been no threat or any pressure the court has emphatically declared this martial law illegal (Asma Jilani v. The Government of Punjab, E.K. Sallah v. Attorney General)

There are however some exceptional and extra ordinary boldness on the part of the Judges but only to be miserable disregarded by the monopoly of the coercive force of arms. They were either frustrated by issuing decrees or proclamations or their jurisdiction restricted or the judges concerned removed from office by the new regime. For example, the question of validity and legislative capacity of an extra-constitutional regime was squarely confronted in Lakanmi v. Attorney General 1971 U. Ife L.R. 201 (Nigeria). The Nigerian Supreme Court rejected the government’s position that “what took place in January 1966 (in Nigeria – the Author) was a revolution and the Federal Military Government is a revolutionary Government …. It accordingly has an unfettered right ……….. to rule by force and by means of Decrees…..” The Court said that the 1963 Constitution of Nigeria reminded the fundamental and operative norm against which the courts could measure acts of the “interim Military Government.”

The military regime reacted sharply and quickly to the Lakanmi decision and to the holding that “the Federal Military Government is not a revolutionary government.” The Judgment of April 24, 1970, was followed on May 9, 1970, by the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970, which reasserted the unfettered and unlimited legislative competence of the military regime. In explicitly Kelsenite language, it declared that the events of January and July 1966 were revolution[s] ….. [that] effectively abrogated the whole pre existing legal order in Nigeria …. Involved an abrupt political change which was not within the contemplation of the Constitution ….. [and] established a new government …….. with absolute powers to make laws ….. No question as to the validity of any Decree or any Edict ….. shall be entertained by any court which has purported to declare …. The invalidity of any Decree ... is …null and void and of nom legal effect whatsoever as from the date of the making thereof. (Mahmud, Tayyab, "Jurisprudence of Successful Treason: Coup D'Etat & Common Law", Cornell International Law Journal, Vol. 27, p. 73, 1994)

The Supreme Court felt constraint to capitulate in the face of this express rebuke by the usurper regime. In Adejumo v. Johnson the Court acknowledged the validity of Decree No 28 and, by implication, that of the military regime. Interestingly, the Court said that Decree No. 28 “establishes and otherwise confirms the already existing ouster of the jurisdiction of courts of law…….” By saying that the new Decree was only declaratory in nature, the court in effect said that Lakanmi was wrongly decided.

So what should be the best approach to tackle these ‘Abraham Lincolns’? Yakub Ali J of the Pakistan Supreme Court had an answer in his judgment in Asma Jilani:

“My own view is that a person who destroys the national legal order in an illegitimate manner cannot be regarded as a valid source of law making. May be that on account of his holding the coercive apparatus of the State, the people and the courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will remain illegal and Courts will not recognize its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would be adventurers. (Constitutional Glimpses of Martial Law, Aleem Al Razee, UPL, p. 42)

Conclusion

Musharraf has left Pakistan with his legacy of ‘unconstituionalism’. The democratic forces of Pakistan now face the critical challenge of upholding constitutionalism in its letter and spirit. This again seems to be a daunting task. Military not only spoils the democracy but also corrupts the democratic mind setup of the politicians beyond recovery. Consequently politicians as well as democracy fail again and on any dark night someone else comes out of the garrison ‘to save’ the nation. Let’s call back the memory of Pakistan’s first Martial Law. On October 7, 1958 Iskander Mirza, while declaring Martial Law observed:

‘For the last two years I have been watching with deepest anxiety, for the ruthless struggle for power, corruption and shameful exploitation of our simple people, honest, patriotic and industrious masses, the lack of decorum and the prostitution of Islam for political ends. The mentalities of the politicians are so low that I am unable any longer to believe that elections will improve the present chaotic internal situation.’

But the key player behind ‘the ruthless struggle for power’ was identified by his chief ally Ayub Khan on October 27, 1958 morning when Iskander Mirza was exiled to London:

“The President had thoroughly exploited the weakness of the Constitution and had got everyone connected to the political life of the country utterly exposed and discredited. I do not think that he even seriously wanted to hold general election; he was looking for a suitable opportunity to abrogate the Constitution.”

Now there is a golden opportunity in Pakistan to break this vicious circle. Pakistan must not miss this.

M. Jashim Ali Chowdhury is a Lecturer in the Department of Law, University of Information Technology and Sciences (UITS), Chittagong.