Fair trial, not media trial

[Mehwish Pervez]

Fair trial, not media trial

by CHAUDHRY FAISAL HUSSAIN

THE trial of retired Gen Pervez Musharraf will be the first of its kind in Pakistan. No military dictator in Pakistan has been tried in the courts for the abrogation and subversion of the Constitution.

However, this is a trial that should not be used to settle personal scores or to gain ratings or popularity amongst the masses. The use of passionate and emotional rhetoric, with some dark political terms thrown in, may add flavour to articles and political statements, but it does little to encourage the concept of a trial built on strong, irrefutable legal substance. The latter, in fact, is a basic requirement.

In fact, this case is not as simple as has been portrayed by some eager and excited minds.

It is time to assess the sensitivities and complexities attached to the trial and to analyse the legal issues involved without letting personal likes and dislikes dominate the discourse. First and foremost, this trial must not reflect justice of the triumphal variety; it must be seen as even-handed justice. The trial proceedings of the former general must be transparent and strictly within the parameters of the law.

The government’s non-serious attitude on this issue is seen in the timing of its announcement that the former military strongman would be tried. The announcement came at a time when the garrison city of Rawalpindi was on fire due to sectarian violence.

At the very least, the timing of the action was inappropriate; the decision came across as a deliberate attempt to divert attention and criticism from the law and order situation, militancy and the poor performance of the economy.

To comprehend the complexities attached to Musharraf’s trial, we need to understand that the present Constitution has undergone many changes courtesy the 18th Amendment. The phrase “suspension and holding the Constitution in abeyance” were not part of Article 6; they were added later, through the said amendment.

As a fundamental principle of the law and Constitution, no person can be punished for the crime that was not a crime under the law on the day of its occurrence.

In these circumstances, the most important question is determination of whether or not holding the Constitution in abeyance or suspending the Constitution on Nov 3, 2007, amounts to abrogation or subversion of the Constitution under Article 6. In my opinion, the answer is in the negative.

The other demand that the trial should include the Oct 12, 1999 military coup is sound with logical legal reasoning backing it. At the time the coup was staged, the military hierarchy had no legal and constitutional authority to overthrow an elected government.

But it is also a fact that if the trial dated to the original coup, a lot more people would in principle have to be behind bars and facing charges of high treason. That is not the case when we talk of the Nov 3 imposition of emergency. It was in accordance with constitutional powers that cannot be termed as devoid of legal authority. It could be termed as misuse or abuse of constitutional power but not the document’s subversion by Musharraf.

Let’s see this in the light of other situations. If the court decides that a piece of legislation is to be struck down for violating fundamental rights as enshrined in the Constitution, the entire parliament cannot be prosecuted for enacting the legislation in the first place.

Likewise, the assemblies cannot be charged with high treason if a local body election is not held in accordance with the mandatory constitutional provisions and is delayed for a long time.

Similar misuse was exercised by the full bench of the Supreme Court of Pakistan in the Zafar Ali Shah case.

Constitutional interpretation in Pakistan suggests the supremacy of the Constitution of Pakistan. All three organs of the state including the legislature, executive and judiciary derive their authority from the Constitution that imposes certain limits that cannot be crossed.

In spite of clear and well-defined lines, the Supreme Court, without the requisite constitutional mandate, validated the martial law and also extended unprecedented power to Gen Pervez Musharraf to amend the Constitution, by misusing the judicial authority vested in it.

It would be unjust to try one person for “subversion and abrogation of the Constitution” and letting others be.

The process of a complaint case is somewhat different to that of normal criminal cases. The court will have to ascertain the legality of the complaint, filed by the federal government, before summoning the parties for the trial.

The trial may not be controversial in technical terms, but involves many legal questions that need comprehensive interpretation — there should be no attempt to jump to conclusions.

Also, it is better to leave these vital questions to the courts instead of holding a media trial to deprive Pervez Musharraf of his fundamental right of a fair trial under the Constitution.

The lesson from history is to refrain from (judicial) adventures. The country cannot afford to have another mistrial as it has not been able to overcome the divide between the political and military establishments caused by the case of the late prime minister Zulfikar Ali Bhutto.

The writer is a lawyer.

Twitter: @faisal_fareed
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