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Thursday March 28, 2024

Let's give him justice

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law S

By Babar Sattar
August 20, 2008
The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School

The General's resignation speech was more remarkable for what he left out than what he said. For nine long years we have been told in umpteen ways that this general is the best thing that has happened to Pakistan since sliced bread. The last words were a continuation of the same rant: the country is hell-bound and it is everyone's fault except Musharraf's. Those who read In the Line of Fire would have expected nothing less. The autobiography exposed a shallow man who viewed his facile nature coupled with insolence as evidence of courage. Anything that ever went wrong was the fault of a foolish superior or a jealous peer, and all that went well was a consequence of the General's ingenuity. True to form, his decision to step down sounded like resignation to a state of affairs that spiralled out of his control, but it was completely devoid of either an acknowledgment of failure or a sense of remorse. In his last address to the nation, the General demanded justice for himself. A wiser man, or even a less conceited one, would have sought forgiveness.

During his horrid rule the General denied justice to citizens of Pakistan, with a vengeance: politicians were hauled up indiscriminately after his coup in 1999 and were assaulted and humiliated purposefully to create a critical mass for the Q League; Akbar Bugti was killed in cold blood; the chief justice and a majority of senior judges were removed illegally and locked up in their houses along with their families; lawyers fighting for rule of law were incarcerated and intimidated no end; the media was taken off-air illegally and plain-speaking journalists were blacklisted; the misguided youth of Lal Masjid were initially emboldened and then mercilessly executed; Aafia Siddiqui and hundreds of others were kidnapped and are still under illegal detention; and civilians in our tribal areas have been turned into cannon-fodder in the misconceived war against terror. This is only to name a few broad categories.

But being meted out justice is a fundamental human right. We must treat Musharraf fairly, strictly in accordance with the law and the mandated due process. The question of his future is now agitating the consciousness of our nation. Now that he has resigned instead of facing impeachment, should he be punished for his unconstitutional acts and gross misconduct in exercise of state power? Would holding him accountable for his deeds amount to creating a conflict between the past and the present that could possibly compromise the future of this country? Is it time to move on and let bygones be bygones? Hearing arguments of Musharraf proponents or detractors of the deposed judges, why does one get the sense that our entire nation and Pakistan's state apparatus has one collective brain and if that is focused on role of the president or need for an independent judiciary, the "common man" will remain poor and hungry? There is no doubt that it is time for Pakistan to move forward. But is it correct to assume that holding Musharraf accountable for his actions and misdeeds amounts to remaining mired in the past?

There are multiple theories that explain the need for accountability and justify punishment. Foremost among them are concepts such as retribution and deterrence. Retribution is backward-looking and deterrence is forward-looking, and punishment qualifies as part of the justice system for being a combination of backward- and forward-looking elements. The fundamental contract between the citizen and the state is based on the premise that each of them has certain rights and responsibilities. Being treated in accordance with the law is an inalienable right of the citizen and not discriminating between the citizens is a responsibility of the state. So, then, what is the legal argument that could justify offering Musharraf a safe passage or freedom from liability? If the actions or inactions of other citizens have legal consequences, why should the General be treated any different? The notion of rule of law cannot coexist with the impunity that our military dictators have enjoyed all along.

Our Western friends and their emissaries are also pushing the safe exit argument forcefully. If nations have interests and not personal loyalties, why have Anne Patterson and Mark Lyle Grant been frantically negotiating with key players in Pakistan, overzealous to ensure a "dignified" exit for Musharraf? It is not just about the person of Musharraf, but about coming to the rescue of a loyal autocrat willing to do the bidding of the US against the popular wishes of his people. The US needs to establish on record for future purposes that loyalty is rewarded and that the US secures the future of an ally who sticks his neck out to promote American interests. And herein lies a lesson to be learnt by us. We must also send a message to our foreign "allies" that propping up dictators at the expense of state institutions and democracy for instant results will not work in Pakistan anymore.

We also need to send out a message to our prospective "saviours" that, notwithstanding the unflinching support offered by unrepresentative forces at home and abroad, violating the Constitution and the law will have unpleasant consequences. This debate is not about personalities. We have learnt the same fundamental lesson from all dictatorships: military intervention is the problem and not the solution to Pakistan's myriad ills. Many in Pakistan celebrated the arrival of Musharraf in 1999 and they are celebrating his exit even more fervently. But the story of the removal and return of the PPP and PML-N governments in the 1990s or the departure and return of Benazir Bhutto and Nawaz Sharif after years in exile is no different.

In a country with innumerable problems that are not amenable to quick fixes, a change of façade brings new hope and is thus welcomed. But we cannot afford to keep musical chairs between dictatorship and controlled democracy going. We need an uninterrupted democratic era. However, it is only natural for present miseries to fade the memory of past woes. The lessons drummed in by Musharraf's recklessness might also be lost soon and that is why it is imperative to create institutional structures that prevent praetorianism from blossoming in future. Three things sustained the Musharraf regime: his people, his policies and the warped non-consensual manner in which the policies were contrived. Musharraf's exit has begun to unravel the first element of the regime – the people who sustained the regime. His policies and policymaking procedures must now also be swiftly revamped.

The biggest damage that Musharraf did to Pakistan was on Nov 3, when he attempted to decimate the Constitution and the promise of an independent judiciary. Now that the perpetrator is out of the way, the PPP-led coalition must lose no time to restore the deposed judges. The memory of the suffering caused by the Musharraf regime will fade away soon, and it will take time for the fruits of democracy to trickle down to ordinary people. In the interim phase a strong and independent judiciary willing to uphold and defend the Constitution will be the real structural impediment to military adventurism. Further, even from the PPP's perspective, the right time for restoration is now. Twice before the PPP leadership managed to paint itself in a corner in such a manner that restoring the judges would have offered the ruling party no political mileage.

Had Prime Minister Gilani restored the judges when he announced their release from illegal detention, the PPP would have received a lion's share of the credit for restoration despite not making it an electoral issue. By flouting that opportunity and later reneging on the commitment made in the Murree Declaration, the PPP attracted opprobrium from across the country, even from friends of the party. However, today is a new day. Asif Zardari has successfully spearheaded a movement that has led to Musharraf's ouster without confrontation. If he follows through by restoring the judges without further delay, the PPP's preferred strategy to reverse the actions of Nov 3 will stand vindicated. Having been given a third opportunity, the PPP leadership must not squander it this time.

To mark the change that democracy has ushered in, the PPP-led coalition must urgently initiate a parliamentary debate on Pakistan's security situation in the tribal areas. Democracy has never been flaunted as the most efficient system of government, only the safest. And the safety feature is a product of consensus. Irrespective of the substantive decisions reached in Parliament, to the extent that we get the process right we will have taken a giant step towards resolving the twin issues of insurgency and terrorism.

Let us waste no breath over Musharraf's legacy. But the treatment we mete out to him will have consequences for the rule of law and constitutionalism in Pakistan, our civil-military imbalance, as well as the lingering ability of foreign actors to dwarf our sovereignty and political autonomy. While closing the Musharraf chapter let us also remember that the ball is now in the court of politicians. Let this not be another brief turn that ends up discrediting democracy as a system unfit for the genius of Pakistanis. From here on it is not about Musharraf anymore. It is about the legacy and the future of the PPP and the PML-N.



Email: sattar@post.harvard.edu