Legal eye

Saturday, August 29, 2009
Babar Sattar

The writer is a lawyer based in Islamabad.

Why is the PPP opposed to trying Gen Musharraf? Is it a demonstration of allegiance to the murky deal that led to the return of the PPP leadership to Pakistan and the NRO being authored by Musharraf – some kind of a code of honour between thieves? Is the foot-dragging caused by the concern that agreeing to try Musharraf will upset the guarantors of the deal – the Yanks, the Brits, the Arabs and our own khakis? Or is the PPP's hesitation the manifestation of a political doctrine of necessity internalised by our ruling elites, where they formally swear allegiance to the Constitution but have privately made their peace with the fact that in Pakistan khakis will remain power brokers and their whims will continue to override our fundamental law in circumstances deemed "extraordinary"?

The legal position on the Musharraf trial is unequivocal. There is no disagreement over the fact that Musharraf subverted the Constitution of Pakistan. Subversion of the Constitution is a crime, and after the Supreme Court ruling in the PCO Judges Case that the actions of Nov 3, 2007, were unconstitutional, there is no room to look the other way. The fundamental law of Pakistan was molested with impunity by a citizen of Pakistan and there could possibly be no reason not to try him for his offences, other than the fact that he was the army chief and that there is an implicit rule in the country – one that trumps the provisions of the Constitution – that the provisions of the law are not to be enforced when it comes to the misdeeds of the generals. The refusal to apply mandatory provisions of the law to a citizen responsible for molesting the Constitution, and publicly acknowledging it too, merely because of his previous station in life, is truly the antithesis of rule of law.

The prime minister states that the federal government will try Musharraf if the Parliament passes a unanimous resolution requiring it to do so. It is not the job of the Parliament to authorise the prosecution of offenders. Further, the prime minister must realise that the executive has no discretion in the matter either. If one citizen murders another, the law enforcement agencies cannot sit mum merely because the murderer is an important man. The difference between the scope of civil law and criminal law is that the former deals with offences against an individual and the latter covers offences against society. Subversion of the Constitution and treason is not a private wrong inflicted by Musharraf upon the prime minister or the president that can be forgiven by them. It is an offence against the society, and while it is for the state to prosecute the offender, the executive arm of the state has no discretion to allow such an offender go scot-free.

The other explanation ventured by the incomprehensible Fauzia Wahab is that the PPP believes in strengthening governance and promoting reconciliation, and not looking to the past. Apart from the obvious fact that the ruling party doesn't have the legal mandate to wish away crimes perpetrated in the recent past, the concept of reconciliation being proposed here is fundamentally misconceived. Ever since the mildly successful performance of South Africa's Truth and Reconciliation Commission, every time someone proposes to shun accountability we hear of a grand reconciliation on the South African model. But let us remind ourselves that Pakistan's circumstances today have no resemblance to those of South Africa when it affected the reconciliation exercise.

South African reconciliation was attempted after the demise of the apartheid regime that left the majority and minority communities in the country at daggers drawn. And while the aim of the TRC was to reconcile and reconstruct such a divided society, as mandated by the South African constitution, no blanket and unconditional expressions of impunity were offered and absolutely no amnesty was granted without a full disclosure and acceptance of the offenders' crime. The conflict that has been the bane of rule of law in Pakistan is that between the civilian political elites and the military – the elephant in the room no one wishes to talk about. And unfortunately this is not a conflict amenable to South African-style reconciliation.

A grand truth and reconciliation exercise can help societal reconstruction by healing minority communities that are being persecuted by the majority. Reconciliation works to integrate communities because their social identity produces shared perceptions. Effective reconciliation and transitional justice schemes can abate the shared hatred and anger of such communities – such as that pervading Balochistan and our tribal areas. Thus, if reconciliation and reintegration is to be attempted, it must focus on Balochistan and the tribal belt, and Musharraf's trial will facilitate such fence-mending, not hinder it.

If Pakistan's chequered history has drilled into our military's collective consciousness that the country's Constitution and rule of law only binds the civilians and khakis are only subject to military discipline, such plague isn't going to be cured by offering amnesty to another pigheaded general who subverted the sacred trust between the state and the society twice. The story of Pakistan being repeatedly conquered by its own guardians is explained by the fact that there is a gulf between the theory and practice of the role of military under the law in our country, which is being actively guarded by our ruling civil and military elites, fuelled by the weakness and incompetence of the former and utter arrogance of the latter.

The PCO Judges' Case might have buried the judicial doctrine of necessity. But it could yet again be brought back to life unless we also eliminate the political doctrine of necessity. This doctrine – be it in its political or judicial manifestation – is simply the condonation of any unconstitutional action justified as being necessary to protect the larger public interest in extraordinary situations. The doctrine is invidious, for no individual or institution has the mandate to conceive a definition of "larger public interest" that is in derogation of provisions of the Constitution. Is a government that refuses to uphold and enforce provisions of law and the Constitution under a political doctrine of necessity or reconciliation any less culpable than a judiciary contriving a judicial doctrine of necessity?

If we set ourselves out to be purists, we would need to drag Gen Ayub Khan and Justice Munir out of their graves. Instead of trying to resolve lingering moral dilemmas, we need to move ahead by applying the law and the Constitution as it stands today. Amnesty for the unconstitutional acts of Gen Musharraf and his aids perpetrated in 1999 stands inscribed into the Constitution. But fortunately there is no legal cover protecting his plunder of the Constitution in 2007. Let us start here.

The PPP needs to realise that a policy of appeasement towards khaki saviours-in-the waiting is no recipe for longevity. Maybe events such as the guard of honour presented by the army to the shamed Musharraf at the time of his retirement, and the surfacing of an anonymous minus-one formula to pressure an already weak PPP, the affidavits highlighting the illegitimate creation of the IJI and the details of the 1992 military operation against the MQM seemingly aimed at deflating the Sharifs have no unified message. But if it is the establishment's way of advising against the Musharraf trial, it is a challenge that supporters of constitutionalism and rule of law, and those who believe in the need for a continuous and unhindered political process, must take up to help create a polity characterised by rule of law.