Monday November 29, 2021

Rule of law or force?

Why would a judge open himself to such criticism at the end of a fairly reasoned opinion is a wonder.

December 21, 2019

Our reactions to events establish that we have lost our balance as a people. Let’s start with the Special Court’s order in the Musharraf case.

To put it politely, Para 66 of the presiding judge’s opinion is a self-goal. To hold that a convict’s corpse ought to be punished if he evades punishment in life isn’t backed by law or reason. It is offensive to our legal and cultural sensibilities and renders the judge vulnerable to the allegation of having dispensed vengeance not justice. Why would a judge open himself to such criticism at the end of a fairly reasoned opinion is a wonder.

Was the judge inspired by what the Britons did to Cromwell a few centuries ago? But back then folks used to burn witches too. The judge might have thought that the verdict is merely academic as the convict won’t return to Pakistan alive and this addition might embellish the principle that to revolt against the supreme law is the highest crime. Para 66 has instead created sympathy for Musharraf, diverted attention from Justice Seth’s otherwise reasoned opinion (and Justice Shahid Karim’s lucid opinion) and subjected the judiciary to scathing attacks.

The singular focus of the critics of the judgement on Para 66 tells a story of its own. It is no secret that Para 66 is the opinion of one judge, and doesn’t form part of the Special Court’s order as neither of the other two judges concurred with it. As a legal matter, one part of a judge’s opinion on sentencing doesn’t undo his reasoning for returning a guilty verdict. Knowing full well that Para 66 is inoperative, using it as a tool to beat up the judge and the judiciary smacks of mala-fide intent.

It has been claimed that injustice has been meted out to Musharraf. But facts paint a different picture. Did those who were loath to Musharraf being tried for high treason in the first place suspect denial of justice even before the trial began? When Musharraf was on his way to court in January 2014 to be indicted, his cavalcade was diverted to a military hospital instead.

After indictment a few months later, Gen Raheel Sharif visited the SSG headquarters to affirm support to Musharraf and express resolve to protect the army’s honour. Musharraf didn’t stay in jail for a single day. His farmhouse became sub jail. He was exempted from appearing in court. He was then allowed to leave Pakistan, which he claimed in an interview to have been managed by Gen Raheel Sharif. He refused to return to face justice, on health grounds, while being seen in photos dancing abroad and playing golf and attending cricket games etc.

The Special Court ordered that the fugitive’s passport be cancelled. But the then CJ Saqib Nisar intervened and ordered that it be restored to help him return to Pakistan. The Special Court and the Supreme Court literally beseeched him to return to complete the treason trial. But he refused on grounds of health or security. When the Special Court offered to send a commission to record his Section 342 statement, he refused. When offered to record his statement through Skype, he refused. He insisted he’d record it in person, but just wouldn’t say when.

Musharraf got in trouble with the breach of the one-coup-per-dictator rule. The practice was to use PCO judges to get a coup validated early on and allow return of democracy upon the condition that parliament would grant immunity to previous subversive acts. Zia created the model and Musharraf followed it post-1999. It is when he tried his luck again in 2007, declared emergency as army chief, issued a Provisional Constitution Order and disbanded and detained judges, that he courted trouble. The desire then across the institutional board was to see him gone.

Those who now wish to argue whether Musharraf should have been found guilty for subversion of the constitution should read his declarations from Nov 3, 2007 onward, and refresh their memories of the events of the time. If Musharraf were to be acquitted on the charge of subversion that we all witnessed, we might as well pack up our justice system for its inability to see what is in plain sight.

An event transpired in 2007. The trial began in 2013. Musharraf was indicted in March 2014. Evidence was recorded in his presence in 2014. He was afforded countless opportunities to confront the evidence and record his Section 342 statement, which he didn’t avail. He left the country in 2016 and then became a fugitive refusing to return. A lot was done to scuttle the trial, with a number of rounds before high courts and matters going up and down to the SC.

The decision finally came six long years after commencement of trial, and 12 years after the events under trial. Does this sound like a justice system acting in haste? Mustapha Impex requires the cabinet to make decisions for the federal government. But the decision to send the reference was made prior to Mustapha Impex and the SC has itself ruled that Mustapha Impex would apply prospectively. And then we have Musharraf’s aiders and abettors (and past lawyers) crying hoarse at the injustice of aiders and abettors not having been tried and punished.

Under the High Treason Act, only the federal government can charge someone for treason. The federal government never charged anyone other than Musharraf. The SC clarified this in 2016 and left it for the federal government to add anyone it wished to prosecute. The PTI government that has sprung into action to defend Musharraf could have introduced aiders and abettors to the trial as accused over the last year. It didn’t. The PTI government could have withdrawn the reference altogether to first investigate aiders and abettors. It didn’t.

The PTI regime’s too-clever-by-half legal team know that appeal is a continuation of trial and all objections regarding fairness of trial or conviction or sentencing can be taken up in appeal. But the wish is to conduct a media trial as a precursor to the appeal to bring the judiciary under pressure and make a few examples.

The reaction to Musharraf’s conviction is a natural corollary of the tension between the de facto and de jure systems simultaneously in force in Pakistan. The contradictions are laid bare with the suggestion that a soldier who has fought wars can’t be a traitor. But Article 6 says that anyone who subverts the constitution is a traitor. This raises the obvious question: what happens when the constitution is subverted by someone who has fought wars?

Musharraf subverted the constitution twice as army chief: once in 1999, but these unconstitutional acts were validated by both parliament and judiciary, and then in 2007, which actions weren’t validated and for which he has been convicted. Even Musharraf’s ardent supporters can’t deny that he mauled the constitution. He had himself admitted in a BBC interview after the November 3 Emergency (which he imposed as COAS, not president) that he did so. So the present debate isn’t really about right and wrong according to the law.

Should we amend Article 6 to hold that it applies only to civvies and that it is okay for the constitution to be subverted in supreme national interest every 10 years or so to set corrupt politicos right? Article 6 was introduced to deter adventurism by would-be dictators. It remained a dead letter of law and deterred neither Zia nor Musharraf. If Article 6 should never be used to punish a dictator if he has been army chief, so why keep it at all?

In a country ruled by a king, anyone rebelling against him is a mutineer. Within the military, a junior officer rebelling against a superior authority is a mutineer. Why then, in a state ruled by law, should anyone rebelling against the supreme law (the constitution) not be deemed a mutineer? After all, our constitution says anyone subverting the constitution is guilty of high treason. The Musharraf debate is really about entitlement to immunity against enforcement of the constitution that binds the rest of us.

If the PTI regime feels we aren’t ready to convict dictators just yet, let it take that position and grant Musharraf a presidential pardon. Using the accountability of a dictator to drum up hatred against the judiciary and the justice system doesn’t serve Pakistan’s interests.

The writer is a lawyer based in Islamabad.