Reverse attainder?

Does Achakzai want to protect Imran or the Constitution?

Pakhtunkhwa Milli Awami Party chief Mahmood Khan Achakzai told the inaugural rally of the Tehreek Tahafuz Ayeen-i-Pakistan that Parliament should quash all the cases against PTI chief Imran Khan.  That might help clarify that the Tehreek is not about the Constitution, or even the alleged rigging of the February 8 election, but about Mr Khan’s release. That creates the danger of the Tehreek preaching only to the converted, because while there are a large number of people who want him released, there is no wiggle room for those to join in support who may feel that the PTI has been hard done by in the election. However, Mr Achakzai has managed to raise the prospect of a kind of reverse attainder. An act of attainder is passed by Parliament flatly declaring a person guilty (Usually treason) and ordering his execution. It has fallen into disuse in the UK since the 19th century, and has been specifically forbidden by the US Constitution.

While it is not specifically forbidden in Pakistan’s Constitution, there are two provisions which make this a non-starter. First, there is the provision ordering the separation of the executive from the judiciary (Article 175[3]). For the legislature to encroach on the domain of the judiciary, especially in cases of which the courts are seized would violate this. At the same time, acts of attainder have been found to violate due process, because there is no opportunity of one side to prove its case through witnesses, by cross-examining them, and by production and examination of other evidence, such as documents.

Anything that would apply to a conviction by Parliament would also apply to an acquittal. Mr Achakzai is probably right when he said that this would also mean the acquittal of the others accused of the May 9 attacks. The legislation necessary to get Mr Khan acquitted would probably mean that the other accused would also go free. True, Parliament can probably abolish the crimes of which Mr Khan is accused, or even convicted, with the result that he will walk free. However, Mr Achakzai’s suggestion may well enthuse the diehard PTI supporter, but it introduces a dangerous concept, one that makes nonsense of the concept underlying the constitutional order, that of the rule of law.

The Editorial Department of Pakistan Today can be contacted at: [email protected].


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