Banishing dictatorship.

Byline: Faisal Siddiqi

'Article 6 remained a mere painting, to be looked at' - Justice Shahid Karim

POLIO and the threat of military dictatorships were dying monsters in the 20th century but they still flourish in a few countries like Pakistan. In the 21st century, it is indeed shocking to have a government, a military elite, so-called constitutional lawyers, a mainstream media and confused liberals being critical of a landmark judgement convicting retired Gen Musharraf for treason. Instead of hailing this historic judgement that is deserving of unqualified national celebration, the two heroic judges, Justice Waqar Seth and Justice Shahid Karim, who convicted Musharraf, are being criticised by some who are asking strange questions as part of a specific agenda.

Courage and jurisprudence: Is judicial courage historically more important than producing great judgements? Former chief justices of Pakistan, Muneer and Cornelius, were brilliant legal minds but were also active and unapologetic collaborators of the Ayub and Yahya military dictatorships. Paradoxically, Justice Waqar Seth may not be a great judgement writer like Muneer and Cornelius, but his verdicts nullifying unjust military court convictions, declaring the detention of hundreds of persons unconstitutional, and finally, convicting Musharraf are historic. To paraphrase Justice Shahid Karim, it is an attempt by judges to rectify history by removing the judicial shame of legitimising past military dictatorships. In such treason cases, judicial reasoning is relevant but always subordinate to judicial courage.

It was an attempt by judges to rectify history by removing the judicial shame of legitimising past military rule.

Semantic treason game: The key defence of Musharraf goes like this: in 2007, Musharraf didn't subvert the Constitution by use of force or through other unconstitutional means but only held it in abeyance/suspension. This only became a treasonous offence in 2010 via an amendment in Article 6. In essence, Musharraf suspending the Constitution in 2007 was not treasonous because holding the Constitution in abeyance/suspension is completely different from subverting it.

Justice Nazar, who dissented and acquitted Musharraf in the treason case, accepts this surreal semantic game played by Musharraf's defence. Justice Shahid Karim, exposes this semantic fraud by the following impeccable logic: firstly, three Supreme Court judgements in the Sindh High Court Bar Association case...