By Humayun Gauhar
Make no mistake. In putting Musharraf on trial for treason Nawaz Sharif has put the entire army on trial. He has, unbelievably, put himself on a collision course with the army yet again. If his prime effort is to castrate the army so it cannot intervene ever again, he has another thought coming. In fact, he might invite another coup. Armies intervene when they have to, which happens only when political failure causes a vacuum in governance. Then the people and the world go along with it. Look at Egypt.
Conventional wisdom has it that the government is on a revenge spree in cahoots with the judiciary and its mind is already made that Musharraf is guilty. Some believe that the exercise is a circus to divert attention from the government’s failures rather than a quest for justice. They don’t realize that holding a show trial of a former army chief in a kangaroo court in a way that smacks so blatantly of hatred, partisanship and bias will invite another army intervention. Sharif has this peculiar penchant for self-destruction for he still doesn’t understand the limits of power. Drown yourself if you must, Sir, but don’t take the ship of state down with you too please. Rule well, Mr. Sharif, give the people what they want, and a coup wouldn’t even enter the army’s mind.
Sharif is probably not aware of the Divine injunction: “Don’t hate anyone so much that you cannot do him justice.” This injunction rests most heavily on rulers, judges and journalists as opinion formers. Would a reasonable person conclude that our government and judiciary are doing justice to General Pervez Musharraf? Or is it heavily laced with hate and prejudice? Justice happens when the accused is assumed to be innocent until proved guilty in an impartial court of law operating under due process with the onus of proof squarely on the prosecution, regardless of the perceived acts of omission and commission of the accused. But if prosecutors and judges are seen to be collaborators, it does look like a show trial in a kangaroo court and the perception is created that the accused is assumed to be guilty at the outset and public confidence in the balance, fairness and equity of the judgment is eroded.
Nawaz Sharif never learns, even after losing power twice by taking on something more powerful than him. If you lick clean the sugarcoating of constitutionalism, democracy and legality, power goes to physically the most powerful. That’s nature. Swing a tiger by its tail and he will first take you for a ride and then return with you inside, like the lady from Niger, even if you have raised it from birth. Sharif should take lessons in reality from Asif Zardari who, unbelievably too, he is making look good, something we never thought was possible.
That General Raheel Sharif is Nawaz Sharif’s appointee is no guarantee. So were Generals Waheed Kakar and Pervez Musharraf but the army intervened when he left it no option because he had taken the system to breaking point. Lesson: don’t create conditions that forces army interventions. Stay within the limits of your legal power. Attacking the Supreme Court to get rid of the chief justice and getting into an irretrievable fight with a powerful president, sacking an army chief when he was abroad, preventing his aircraft from landing and asking the pilot to take it to India breaks all markers of patriotism and invites extra constitutional reactions. Know the upper and lower limits of power and understand that real power as against formal power moves when you transgress the limits of formal power.
The fact is that Nawaz Sharif’s government is controversial ab initio because of undeniable evidence that the elections that brought him to power were blatantly rigged. We have seen a lot of evidence on camera, in print and personally in polling stations. Else why would they balk at checking the thumbprints of voters on ballot paper? The fact is that the sacked judges were controversially reinstated by an executive order leaving one wondering about its legality. Can we trust such rulers and judges?
1. The tribunal selected to try Musharraf raises fears that it comprises people who might have personal grudges against him leaves one askance. There should not be a shred of doubt or suspicion, like there rightly is about Zulfikar Ali Bhutto’s trial and execution. We are paying the price for that sin still.
2. The tribunal or special court established to try Musharraf for treason has to comprise only those judges who were not adversely affected by the Musharraf government’s decisions else it will be regarded as scandalous and notorious. Musharraf would do well to insist on a group of international jurists to observe his trial and report on what they see and hear.
3. Musharraf proclaimed emergency on November 3, 2007 when he was still army chief. Thus he should be court martialled under the Army Act. But then how will the government be able to influence the army tribunal? The government also fears that the army would never punish a former army chief. That is why an international observers group comprising national and international jurists needs to be invited to witness the court martial.
4. There is talk of holding the proceedings in camera i.e. in hiding. That would be terrible and would immediately beg the questions: what price freedom of information? What are the government and judges hiding from? To hide their prejudice and partiality is the obvious answer. What’s so secret or against the ubiquitous ‘national interest’ in this case?
5. Why has Musharraf been singled out when the decision to impose emergency on November 3, 2007 included a lot of ‘aiders, abettors and collaborators” in the proclamation order?
6. How can they try Musharraf alone and on a lesser ‘crime’ and ignore the earlier bigger ‘crime’ of October 12, 1999 that caused the lesser crime to take place?
7. Why has the action of November 3, 2007 been singled out and the army takeover of October 12, 1999 not included? Obviously to protect the Nawaz Sharif and former chief justice Iftikhar Chaudhry from inclusion in the trial as too many other generals, judges, politicians, bureaucrats and ‘technocrats’. When justice is fair and holistic there are no holy cows. That parliament indemnified the October 12, 1999 coup is so much poppycock. Anyway, the 18th Amendment put paid to that indemnity.
8. How can they separate effect from cause? The cause of the November 3, 2007 emergency was the legitimization of the army’s countercoup of October 12, 1999. The cause of the October 12, 1999 countercoup was Nawaz Sharif’s coup against the army by sacking its chief illegally, as the Supreme Court held. Then the Supreme Court included the now mercifully retired and unlamented Iftikhar Chaudhry who later rose to the giddy heights of chief justice of Pakistan that gave him a nosebleed as heights often do.
9. Why did the government not get cabinet approval before initiating the treason trial? What was the rush? That Musharraf might leave the country? He who voluntarily returns to face his persecutors doesn’t run away, and if he did go to meet his old mother in Dubai, he would return. This is his country and he has every right to live in it. And he has every right to clear his name and expose his tormentors and persecutors.
10. Holding the constitution or certain of its articles in abeyance was added to Article 6 later by the 18thAmendment, much after the two contentious acts of October 12, 1999 and November 3, 2007. Sure the constitution forbids discrimination in law except in treason cases, but that is a most unfortunate law and needs to be thrown aside. If any precedent using laws retroactively is ever set, many heads will roll now and in future too.
11. The Supreme Court under Iftikhar Chaudhry asked the government to file a treason case against Musharraf, and that too on a private petition. This is not the job of the Supreme Court and betrays prior bias that it finds the person guilty before trying him. This awful judgment has defined the direction and parameters for the special trial court. Good Lord! It must be set aside first.
12. Only the federal government after a decision of the cabinet can charge a person with treason under Article 6 of the constitution. The cabinet was never asked. Was the assumption that it would agree anyway as it is loaded with Nawaz Sharif relatives and Kashmiri cronies, so why bother?
13. The federal government has to set up the special court itself and not ask the chief justice to ‘suggest’ names of high court judges from which the government would select. It goes without saying that the chief justice gave the names of only those judges who are anti-Musharraf. This is cahoots, not justice.
If from the foregoing you come to the conclusion that Humayun Gauhar is against Musharraf or anyone else being tried for perceived treason, you couldn’t be more wrong. I’m all for accountability. But do so only if you have a case, in the proper way, in a proper court of law, under due process, without singling out a person and applying laws retroactively. If he is found not guilty, so be it. If he is convicted so be it too, as long we are satisfied that justice has been satisfied. Justice done and seen to be done is the best way to prevent extra constitutional acts.