Judges in their own cause?

musharraf-chief-justice-taking-oath

HUSSAIN SAQIB

The apex court has to tread with caution. It is the aggrieved party in the case and has been forced by circumstances to sit on judgment in its own cause.

Pakistan’s former military ruler, General Pervez Musharraf will face, in person or through attorney, the Supreme Court of Pakistan on Monday. And this is no ordinary appearance; he runs the risk of capital punishment for imposing emergency in the country and sacking, and restricting the movement of, chief judge and his brother judges on November 3, 2007. It is the first time that the accused will face the court against whom he is believed to have taken steps under the garb of the Constitution.

The emergency which Musharraf imposed under the provisions of the Constitution was declared unlawful by the reconstituted court when the chief judge and his colleagues were restored as a result of street agitations called the Lawyers’ Movement. It may be recalled that even the successor government of Zardari had refused to overturn the action of Musharraf being legally impossible as the Supreme Court headed by Justice Dogar constituted under emergency, had validated the imposition of emergency rule. The government, even after the Supreme Court declaring November 3 action invalid did not proceed against Musharraf.

On pointed prompting by the chief justice last week, a lawyer came forward to file a petition seeking court’s order to the government to proceed against Musharraf under Article 6 of the Constitution. The offense under article 6 if proved, carries death penalty. The bench constituted to hear the petition was headed by the chief justice himself, which has now been reconstituted. The judge who resigned in protest against Musharraf sacking of the chief justice will now head the bench. That the judge was a personal victim of the action of Musharraf did not bother the court and the victim in his wisdom has decided to hear the petition himself.

The original provision of Article 6 of the Constitution reads as: Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason. This provision was rephrased through 18th Amendment (2010) to read as: 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.

The offense under Article 6 also includes any person aiding or abetting or collaborating the acts shall likewise be guilty of high treason. An act of high treason shall not be validated by any court including the Supreme Court and a High Court. The Parliament shall make a law to provide for the punishment of persons found guilty of high treason.

When Pervez Musharraf overthrew the government of Nawaz Sharif in October, 1999, there was a widespread jubilation by the general public. The Supreme Court bench, including the present chief judge, had not only validated the imposition of military rule, it also authorized the ruler to amend the Constitution as he deemed fit. Amendment in the Constitution is the prerogative of the Parliament and that too when two-third majority of both houses approve such amendment.

Compared to October 1999, the action of imposition of emergency in November 2003 was far less in terms of constitutional gravity. The court sensing the proclamation, sat in emergency to restrain the government, the army and judges of high courts from obeying presidential orders. Those judges who took oath after emergency were subsequently shown the door for violating the restraining order. It is now turn of Musharraf to face the wrath of bench and bar.

The apex court has to tread with caution. It is the aggrieved party in the case and has been forced by circumstances to sit on judgment in its own cause. Musharraf, a political nobody is totally isolated and comprehensively humiliated. The so-called forces of “rule of law” are out to get him. But the first principle of natural justice i.e. Nemo iudex in causa sua (nobody can be a judge in his own cause) has to be upheld at all costs.

But in this charged atmosphere of revenge, the court has to take stock of the circumstances. Was Musharraf a lone-ranger or was supported by the entire government machinery in imposing emergency rule? Was this emergency rule resulting in sacking of judges a far graver crime than sacking of an elected government which was condoned by the judiciary? Article 6 has put the court in a difficult situation. These are indeed testing times for the honorable judges of the apex court to show that they are not only independent, they are fair too. Personal anger should not stand in the way of dispensing justice if the judges, in their infinite wisdom, decide to take up the case themselves.

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