FacebookTwitterGoogle+RedditEmail

Arresting Musharraf

by LIAQUAT ALI KHAN

Pervez Musharraf, who usurped power in Pakistan on November 3, 2007 by virtue of his Proclamation of Emergency, refuses to relinquish the office of the President, an office he unlawfully occupies against the will of the people and contrary to the Constitution of Pakistan. This essay argues that if Musharraf does not voluntarily vacate the Presidency, Pakistan’s newly-elected Parliament is authorized to pass an Emergency Bill to capture him, charge him with treason, and prosecute him under Article 6(1) of the Constitution, under which: “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.”

Arresting Pervez Musharraf will establish the sovereignty of the Parliament, fulfill the demands of justice, and restore the rule of law for which the judiciary and lawyers of Pakistan have paid a heavy price. Any compromise with Musharraf that keeps him in office might please foreign constituencies. But it will be lethal for democracy and constitutionality in Pakistan. Any such compromise will encourage future military coups. The time has come for Pakistan to show to the world that a fearless democracy can remove usurpers in a strong but lawful manner.

Incarceration, not Impeachment

Article 47 of the Constitution of Pakistan furnishes a procedure to impeach the President. The President is impeached if he violates the Constitution or engages in gross misconduct. The National Parliament comprised of the Senate and the Assembly investigates the charges. During the investigation, the President has the right to appear before the joint sitting of the two Houses. If, after investigation of the charges, a two-thirds majority of the Parliament passes an impeachment resolution, “the President shall cease to hold office immediately on the passing of the resolution.”

This impeachment procedure, however, presumes that the President has been duly elected according to the constitutional framework. Article 47 cannot be invoked to impeach any person who claims to be the President. Any such broad reading of Article 47 collapses the distinction between lawfully elected President and usurper who occupies Presidency through constitutional subversion. Accordingly, any impeachment proceedings against Musharraf will unwittingly concede that he lawfully holds the Presidency. Even if the impeachment proceedings succeed and Musharraf leaves office, the Article 47 procedure will have been misapplied.

Usurpers are arrested and removed. They are not investigated and impeached. Pakistan’s newly elected Parliament must not ignore this important constitutional distinction.

Usurper, not President

It might be argued that Musharraf is indeed the President of Pakistan since the outgoing electoral college of National and Provincial Parliaments elected him to the office of the President on October 6, 2007. This argument is without merit.

Recall that in October, 2007 the Pakistan Supreme Court had allowed the holding of the Presidential election. The Court ordered, however, that results of the election must not be released until the Court has first considered on merit the challenges to Musharraf’s candidacy for the office of the President. At the time, Musharraf was simultaneously holding two offices, one that of the President and the other that of the Army Chief. A panel of the Supreme Court heard the case for several weeks. Musharraf’s lawyers submitted to the Court’s jurisdiction and forcefully argued that Musharraf was qualified to contest the Presidential election.

On November 3, a day or two before the Court was to render its verdict, Musharraf engaged in preemptive self-defense and proclaimed emergency. Under the Proclamation of Emergency, thirteen judges of the Supreme Court were unlawfully fired and arrested. Unconstitutionally, a brand new Supreme Court packed with pro-Musharraf judges, was reconstituted. Musharraf took all these extra-constitutional measures to avert a possible negative Court verdict that would have disqualified him and nullified the October 6 election.

On November 3, Musharraf himself relinquished the office of the President and became the Army Chief. Recall that Musharraf suspended the Constitution in his capacity as the Army Chief, not President. Furthermore, by subverting the Constitution and unlawfully preempting the Supreme Court verdict, Musharraf ceased to be the lawful President. Even after the restoration of the Constitution and despite a favorable decision from a rubber stamp Supreme Court, Musharraf’s occupancy of the office of the President continues to be unlawful and illegitimate. By turning the Constitution off and on at will, Musharraf cannot profit from his wrongs. From November 3 onwards, Musharraf is no longer the President but an unlawful usurper and trespasser of the office of the President.

Removal by incarceration and not impeachment is the proper constitutional treatment for usurpers.

Ali Khan is professor of law at Washburn University School of Law in Topeka, Kansas.

 

 

 

 

 

More articles by:

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

December 05, 2016
Bill Martin
Stalingrad at Standing Rock?
Mark A. Lause
Recounting a Presidential Election: the Backstory
Mel Goodman
Mad Dog Mattis and Trump’s “Seven Days in May”
Matthew Hannah
Standing Rock and the Ideology of Oppressors: Conversations with a Morton County Commissioner
Kevin Zeese - Margaret Flowers
#NoDAPL Scores Major Victory: No Final Permit For Pipeline
Fran Shor
The End of the Indispensable Nation
Michael Yates
Vietnam: the War That Won’t Go Away
Robert Hunziker
Huge Antarctica Glacier in Serious Trouble
John Steppling
Screen Life
David Macaray
Trump vs. America’s Labor Unions
Yoav Litvin
Break Free and Lead, or Resign: a Letter to Bernie Sanders
Norman Pollack
Taiwan: A Pustule on International Politics
Nick Pemberton
Make America Late Again
Kevin Martin
Nuclear Weapons Modernization: a New Nuclear Arms Race? Who Voted for it? Who Will Benefit from It?
David Mattson
3% is not Enough: Towards Restoring Grizzly Bears
Howard Lisnoff
The Person Who Deciphered the Order to Shoot at Kent State
Michael Uhl
Notes on a Trip to Cuba
Weekend Edition
December 02, 2016
Friday - Sunday
John Pilger
The Coming War on China
Jeffrey St. Clair
Roaming Charges: The CIA’s Plots to Kill Castro
Paul Street
The Iron Heel at Home: Force Matters
Pam Martens - Russ Martens
Timberg’s Tale: Washington Post Reporter Spreads Blacklist of Independent Journalist Sites
Andrew Levine
Must We Now Rethink the Hillary Question? Absolutely, Not
Joshua Frank
CounterPunch as Russian Propagandists: the Washington Post’s Shallow Smear
David Rosen
The Return of HUAC?
Rob Urie
Race and Class in Trump’s America
Patrick Cockburn
Why Everything You’ve Read About Syria and Iraq Could be Wrong
Caroline Hurley
Anatomy of a Nationalist
Ayesha Khan
A Muslim Woman’s Reflections on Trump’s Misogyny
Michael Hudson – Steve Keen
Rebel Economists on the Historical Path to a Global Recovery
Russell Mokhiber
Sanders Single Payer and Death by Democrat
Roger Harris
The Triumph of Trump and the Specter of Fascism
Steve Horn
Donald Trump’s Swamp: Meet Ten Potential Energy and Climate Cabinet Picks and the Pickers
Ralph Nader
Trump and His Betraying Makeover
Louis Proyect
Deepening Contradictions: Identity Politics and Steelworkers
Stephen Kimber
The Media’s Abysmal Coverage of Castro’s Death
Dan Bacher
WSPA: The West’s Most Powerful Corporate Lobbying Group
Nile Bowie
Will Trump backpedal on the Trans-Pacific Partnership?
Ron Ridenour
Fidel’s Death Brings Forth Great and Sad Memories
Missy Comley Beattie
By Invitation Only
Fred Gardner
Sword of Damocles: Pot Partisans Fear Trump’s DOJ
Renee Parsons
Obama and Propornot
Dean Baker
Cash and Carrier: Trump and Pence Put on a Show
Jack Rasmus
Taming Trump: From Faux Left to Faux Right Populism
Ron Jacobs
Selling Racism—A Lesson From Pretoria
Julian Vigo
The Hijos of Buenos Aires:  When Identity is Political
FacebookTwitterGoogle+RedditEmail