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- Saturday, April 20, 2013 - From Print Edition

Legal eye

The writer is a lawyer based in Islamabad.

A coterie of purists might have wished to drag Musharraf back from exile and punish him for his crimes against the constitution. But the vast majority of Pakistanis just wanted to move on. The occasional comparison between governance during five years of the PPP-led rule versus that under the Musharraf regime was largely meant to flag the PPP government’s state of incompetence and corruption as opposed to expressing any longing for Musharraf’s return. Even the fervent critics of Musharraf-the-dictator were disinclined to waste time and energy on Musharraf-the-nobody. After all there is nothing virtuous or heroic about beating up those whose chips are down.

But Musharraf wouldn’t let sleeping dogs lie. A bad penny always turns up they say. Conspiracy theorists argue that he has been counselled to return to Pakistan to foster chaos and disrupt the entrenchment of democracy and that the return and theatrics of Tahirul Qadri followed by Musharraf is no coincidence. There is no denying that the enthusiasm and self-righteousness of proponents of controlled-democracy has not whittled down completely. There might be many rooting for the democratic system to falter and throw up another opportunity for direct or indirect khaki intervention. But there is a much simpler explanation for Musharraf’s return.

From a dispassionate reading of ‘In the line of fire’ Musharraf comes across as a conceited, vain and shallow man. His behaviour in public life, especially in the face of adversity, provides further corroboration. One has never heard him admit a mistake or apologise for a wrong. This man seems to possess an insatiable appetite for taking credit for all that goes right with no qualms about blaming his superiors, peers and subordinates for all that goes wrong. Some argue that the general was rooted in reality in the earlier part of his almost decade long regime. But the sinful influence of absolute power together with intoxicating sycophancy pushed him into fantasyland in his later years, from where he never returned.

Notwithstanding the angst of those who personally suffered at Musharraf’s hands, punishing him for purposes of retribution is hardly of any public importance. But reform and deterrence are equally important objects of a penal justice system. Thus how Musharraf’s cases are handled, and their eventual outcome, is of utmost relevance to our civil-military imbalance, as well as to the quality of rule of law in our country and its neutral application to all public officeholders across the civil-military divide. Had Musharraf not returned to Pakistan and faded away from public memory in exile, we might have been able to let bygones be bygones.

But now that he has turned up any exhibition of expediency or vengeance by our courts will be at the cost of the integrity of our justice system. The trial of Musharraf will put to test the ability of our courts to function as neutral arbiters of the law and mete out justice to an accused who directly wronged the judges, without taking into account their subjective experiences. In The Role of the Judge in a Democracy Ahron Barak warns that a judge ought not to succumb to the mood of the day and argues that, “a judge must be self-critical and lack any traces of arrogance which risk misleading him into self-grandeur.” To borrow Barak’s words, as our courts sit at Musharraf’s trial they are in fact standing at trial themselves.

Our courts are not courts of morality. They are courts of law mandated to dispense justice of the kind that the laws of Pakistan are capable of producing. It is precisely when judges begin to conceive their role as agents of moral cleansing that problems erupt. And thus when we speak of the moral authority of the justice system, we must focus on the quality of justice being produced by the courts collectively and not the piety or personal history of individual judges. As a matter of principle hardly any distinction can be drawn between the PCO oath of 2000 and that of 2007. The only difference was that of public opinion. In 2000 the collective conscience of this country decided to live with the blight of the PCO. In 2007 it didn’t.

There is no moral argument to defend those who swore a PCO oath at any point. But there is the common sense argument that those who learnt from their mistake and took corrective action in 2007 are better than those who wanted us to continue in the same vein. There is also the legal argument that no penal consequences can now flow from the events of 1999-2000 as the 17th Amendment protected those acts of Musharraf and his abettors, including judges. While the moral self-righteousness of those who swore a PCO oath in 2000 might be in bad taste, just because the CJ sat on the bench that endorsed Musharraf’s first coup cannot mean that Musharraf should get off scot-free for the repeat subversion of the constitution in 2007.

Musharraf’s court hearing on April 18 was certainly about change, but it was also about continuity. And the jury is out on whether by the time we are done with Musharraf’s legal battles, our polity and our justice system will come to be seen as symbols of expedient continuity or instruments of change that narrow the gap between law and its enforcement. On April 18 the entire area around the Islamabad High Court was cordoned off. Over 150 soldiers manned the street that provides public entry to the court premises. While lawyers were being permitted into the court, there was no confusion that it was khakis regulating entry and not the high court staff.

Musharraf might have become a fugitive of the law for a while, but he did not flee. The 200 khaki and civilian security personnel deputed at the Islamabad High Court were there to protect him and not arrest him. Whether or not one agrees with the rejection of bail application on narrow legal grounds, a former army chief and dictator standing before a civilian judge as an accused and his arrest being ordered marks some correction of our existing civil-military imbalance and the distance we have travelled towards rule of law. That such accused sauntered out to his SUV after his arrest order and drove away, all the time encircled by state security personnel who ought to have arrested him, marks the distance that remains to be travelled.

Musharraf’s real crime is that he subverted the constitution. The legal consequences of such action are clearly stated in Article 6. It is the usurpation and abuse of state authority that Musharraf is liable for and this is what he should be tried for. Ordering the arrest of judges etc are ancillary matters that grew out of this original sin. Musharraf’s trial is not about settling scores. It is about upholding the due process of the law. It is about defending the sanctity and inviolability of our constitution. It is about establishing that authority flows from the letter of the law and not the barrel of the gun. And it is about demonstrating that the law of this land applies equally to civilians and khakis.

Musharraf’s legal strategy is simple. He will not accept responsibility for all that transpired under his watch, apologise to the nation and face the law. No, Musharraf will not do the honourable thing. He will play dirty. He will lay blame on those who served under his command and hope that he can cast the net wide enough to involve the institution of the army and make his prosecution a question of the army’s holy cow status and ‘morale of troops’. And it is for this reason that Musharraf must be prosecuted. Constitutional democracy will remain feeble in Pakistan as long as our generals believe that command of the law is not a command but only a request.

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