JURIST Contributing Editor Ali Khan of Washburn University School of Law says that Pakistan's newly-elected Parliament is authorized to pass an Emergency Bill to arrest Pervez Musharraf, charge him with treason, and prosecute him under Article 6(1) of the Constitution in his capacity as a usurper, not a lawful president subject to potential impeachment...
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 grew up in Pakistan and is a law graduate of Punjab University, Lahore. He is currently a professor at Washburn University School of Law in Kansas. His publications are available here.