NationalVOLUME 15 ISSUE # 10

Shall truth prevail in Pakistan?

In Pakistan, the army is the most powerful institution which has, no doubt, protected the country’s interests very expertly and bravely. It is the most respected institution among the people. The Pakistan army is the only army in the world that has won the war against terrorism by crushing terrorists and eliminating their hideouts from the country. It is also successfully fighting the fifth-generation hybrid war which external enemies and forces have imposed on Pakistan.

But, it is also a fact, that some generals have derailed democracy in Pakistan in the name of national interests, Islam and security of the motherland. The judiciary has always supported military rulers by coining the “doctrine of necessity”. But, this time, the judiciary, has written a new history by giving a death sentence verdict against Pervez Musharraf, the former military dictator and President of Pakistan, for committing high treason. However, the decision of the special court has created a storm of criticism against the judiciary from the PTI government ministers, politicians, thinkers, journalists and, even, the Pakistan army. The army’s statement on the short decision is also matchless and historic as it says that its rank and file have suffered severe anger and agitation due to the decision. In this brief statement, although the army has not talked about the national interests or regional security, it has declared a man who “has served the country for 40 years, fought wars for the defense of the country can surely never be a traitor”.

But, after the detailed judgment, Inter-Services Public Relations (ISPR) Director General Major General Asif Ghafoor while addressing a press conference, gave a strong reaction on behalf of the Pakistan army and termed the verdict against “humanity and religion”.

There is not an iota of doubt that the army is serving and saving Pakistan from all external and internal threats since the creation of the country. It is also a fact that Musharraf’s death sentence cannot jeopardise the country’s security and the army’s respect and professionalism. The judiciary is also a protector of national interests by performing its duties which the Constitution of Pakistan has imposed on it.

The problem with the judgment is Para 66, which holds that a convict’s corpse ought to be punished if he evades punishment in life. Babar Sattar, a lawyer and columnist, writes: “The singular focus of the critics of the judgment 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. 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”.

There is every possibility that Musharraf will never be hanged because the entire system protects the powerful ruling elite. Examples of Nawaz Sharif, Shahbaz Sharif, Maryam Nawaz, etc. are in front of Pakistanis. They all are free after being convicted and sentenced by courts.

Mohammed Hanif, a novelist, writes in the New York Times: “Now that a judgment has been issued, the Pakistan Army has claimed, in its we-reject-this-verdict statement, that Musharraf was not given the chance to defend himself. After the military’s passionate plea against the decision — as well as strident criticism from the government of Prime Minister Imran Khan — chances are that Musharraf’s death sentence will never be carried out. The Pakistan Army demands and gets more love from its people than most other professional armies. Still, with this court decision, it will have to not only learn to live with its pain and anguish, but also work hard to reclaim the impunity it has always taken for granted”.

On the other hand, former Chief Justice of Pakistan Asif Saeed Khosa has slammed a malicious anti-judiciary campaign and hoped that the truth shall prevail. “A malicious campaign has been initiated against me and the judiciary in general. The allegations are baseless and incorrect. We know the limits of our powers and we know that the truth shall always prevail,” said Chief Justice Khosa, while addressing a full-court reference at the Supreme Court on his retirement day.

In his address at the full-court reference, Justice Khosa – who remained the Chief Justice of Pakistan for a little over 11 months – said that he always did what he “thought was right and was worth doing”. “And it did not matter to me as to what the reaction or consequences would or could be,” he added. Known as a literary person, Justice Khosa concluded his speech with a poem by the late progressive feminist poet Fehmida Riaz, which has given him hope and inspiration throughout his career: Learn to compromise, some may advice, Scary the consequences, they may apprise; Robbed you may be of all you possessed, Strewn with robbers is this perilous quest; Tragedies, mishaps may befall, beware! For tragedies often befall those who dare; Cherish every priceless moment thou have, For a moment’s eternity is thy breath’s slave; This moment shall pass, not to come again, Do what thou think is right – worth doing, Fear not tomorrow, defiance goes not in vain”