A rose by another name

Pervez Musharraf’s 2006 autobiography opens with a bang. That is to be expected from a book that borrows its title from a Clint Eastwood action-film.

The prologue, ‘Face-To-Face with Terror’, proclaims, “I have confronted death and defied it several times in the past because destiny and fate have always smiled on me. I only pray that I have more than the proverbial nine lives of a cat.” He then proceeds to list ten instances where he has defied death.

The tally is debatable: one brush with death involves falling off a mango tree. Four involve not getting on planes that later crashed (one was ‘that poor man’, Ziaul Haq’s C-130). But whatever the criteria might be, he’ll need destiny and fate to smile real hard in the days to come.

Let’s begin by addressing the violently decapitated elephant in the room: paragraph 66. It did the judge no favours, and the judgment even fewer. “Justice must not only be done, but be seen to be done”, goes the maxim. Justice Seth took the spectacle a little too far.

For one, the Musharraf that Justice Seth was writing against was not the 2001 four-hat-wearing, four-star, President-General Pervez Musharraf. 2019-Musharraf, by design, paints a very different picture as the feeble, ailing, misunderstood martyr’s almost robotic voice quavers from a hospital bed.

Manto once damned “such a respectable ...society where, as a rule, the character of the dead is sent to a laundry for a wash...” Damned or not, just as it worked for Indonesia’s war-criminal dictator Suharto, it’s doing wonders for Musharraf. Any time a new clip surfaces, you can almost smell the fresh linen.

Forays into descriptive fiction aside, this is a legal document; and while paragraph 66 is not an operative part of the judgment, a common notion – that the majority is in agreement over non-Para-66 stuff – is not true. The divergences are numerous – from the treatment of mens rea (intent) to the (implicit) treatment of retrospectivity – but this piece will focus on one charge: holding the constitution in abeyance (some discussion of ‘suspension’ may follow, but only to the extent that neither term was part of the constitution in 2007).

For Musharraf, the following exercise will make little difference in the larger scheme of things. There are five charges against him, most of which stick; this is just one of them. But for the same reasons that make us uncomfortable about para 66, it is important.

In 2007, Article 6 included neither ‘suspension’, nor ‘holding in abeyance’. What prompted their inclusion was that Musharraf, not brazen enough to use ‘abrogation’ or ‘subversion’, sought these alternatives.

Treason, by another name, smells just as putrid. If suspension and abeyance were only different words for their predecessors, then it would be ridiculous to let Musharraf off the hook for simply having a thesaurus on-hand. Treason shouldn’t be fair game for any dictator with an up-to-date SAT-word list just because the constitution doesn’t include an exhaustive list of synonyms.

But Musharraf’s ‘suspension’ or ‘abeyance’ could still constitute high treason if one of two things were to happen: first, if it were demonstrated that either or both of these were just another name for ‘abrogation’ or ‘subversion’. The second is to demonstrate that even though they are distinct offences, after their creation, they were intended to apply retrospectively.

The majority of the Special Court, like the Supreme Court before it, chooses to take the first of the two (although Justice Seth’s opinion may be read to imply a vague nod in the direction of the second path as well). What needs to be proven, then, is that there is no functional difference between the terms: a rose smells sweet but so does a magnolia. Sure, they are both flowers – that an act is not treason does not mean it is not unconstitutional; but as the courts have told us in the past, that it is unconstitutional does not automatically make it treason.

That the constitution should be read so as to avoid redundancy is Con Law-100 stuff. For non-lawyers, this means that if ‘suspending’ and/or ‘holding in abeyance’ mean the same thing as subversion, their later inclusion would be rather pointless. But there is a subtle distinction between a provision or phrase that is redundant, and one that is declaratory or clarifying: the value addition may be incremental, but is still non-zero. Perhaps the legislation included the terms for emphasis – just in case.

The majority of the special court takes as a given the analysis of the Supreme Court in the 2009 Sindh High Court Bar case (pre-Eighteenth Amendment): that holding the constitution in abeyance was subversion by another name. Obviously, the Supreme Court did not in 2009 have the benefit of the amendment that came the year later, but a decade later, reliance on the judgment alone is hard to justify.

In 2018, when the Eighteenth Amendment (which passed unanimously) was announced, Raza Rabbani announced that the drafters “widened the ambit” by adding suspension and holding in abeyance of the constitution. Not once but twice, he spoke not of clarification or bolstering, but of ‘widening’ and ‘broadening’ the ambit. Bear in mind that the text being deciphered is not some century-old document, but rather, an amendment that is less than a decade old.

This statement comes not from unelected judges, but is the unanimous articulation of the representatives of the people. And while the court, in 2009, did not have the benefit of the amendment, the amendment passed despite the judgment. Reconciling this with the idea that the terms are interchangeable requires a fair amount of mental gymnastics.

One might be tempted to take these leafy metaphors a step forward and see the forest for the trees. Why should words matter so long as justice is done? At the end of the day, the constitution is just a few sheets of paper. Well, people who articulated the same idea include the likes of Ziaul Haq and General Pervez Musharraf. When the crime itself is a ‘constitutional offence’ (the only one mentioned in the document) the document itself should take centre-stage.

Again, none of this is to say Musharraf will leave all this smelling like roses (last one). The litany of complaints against Musharraf is enough to get him a whole bunch of frequent-flyer miles to court, and to ensure that he will never get to use most of them. But each charge matters. Each charge should be dealt with conclusively. Because if there is anything that Paragraph 66 ought to teach us, it is that too much justice is just not just.

The writer is a lawyer.

Twitter: @brainmasalaar