Pakistani Judiciary always Validate Martial Law

Writing of history or triumph of amnesia? – By Ayaz Amir

“Historic”, we are being told — and told without end — is what the judgment of their Supreme Court lordships is. General (r) Pervez Musharraf’s Nov 3, 2007, action has been declared “unconstitutional” and “civil society” is ecstatic, some of our wilder drumbeaters assuring us that the doors on military interventionism have been closed forever. Ah, if wishes were horses.

The Supreme Court judgment not so much revises history as cuts it up, wrapping it in neat packages. For it declares only one action of Musharraf’s unconstitutional — his Nov 3 Emergency, which came at the fag end of his rule. The inescapable conclusion we are left with is that everything else the man did fell within the ambit of the Constitution.

Now what was Musharraf’s original sin from which flowed everything else? Why, his coup d’état of Oct 12, 1999, when his generals overthrew an elected government, disbanded the National Assembly, put the Constitution into cold storage and imprisoned not only the then prime minister but his closest colleagues and even members of his family.

Just as Adam ate the apple he wasn’t supposed to touch and as a consequences was expelled from Paradise, the apple which Musharraf plucked and put into his mouth was on the fateful evening of Oct 12, all those years ago, when he was in the air on a flight from Sri Lanka, while his generals — chief among them Usmani, Aziz and Mahmood — went about the removal of the elected government.

That was the mother of all sins. So how strange and dripping with irony this omission: about that seminal event, which set in train all the sorrows the nation was to reap thereafter, their lordships in their “historic” judgment have nothing to say.

For this of course we must understand the problems of the past. For in 2000, a few months after the mother of all sins, when this matter came before the then Supreme Court headed by Chief Justice Irshad Hasan Khan, the nation witnessed another of those electrifying performances which have made “the doctrine of necessity” so famous in our land, the Supreme Court validating Musharraf’s coup and, what’s more, allowing him a grace period of three years to hold elections. In its generosity, it also gave Musharraf the authority to amend the Constitution for purposes of holding elections.

So just as the Anwarul Haq Supreme Court gave a clean chit to General Ziaul Haq’s coup of 1977, another Supreme Court signed a papal bull conferring legitimacy on another illegitimate offspring of our political adventures.

Now for an inconvenient fact. On the bench headed by Chief Justice Irshad Hasan Khan there sat an up-and-coming jurist, stern of eye and distinguished of look, by the name of Iftikhar Muhammad Chaudhry. Yes, he was among the illustrious upholders of the law and the Constitution who bathed Musharraf and his generals in holy water.

Before that baptismal ceremony, Musharraf, following the example of military saviours before him, had issued another Provisional Constitutional Order (PCO) requiring judges of the high courts and the Supreme Court to take a fresh oath pledging obedience to the new order. A few difficult judges — among them Chief Justice Saeeduzzaman Siddiqui, Justices Wajeehuddin, Nasir Aslam Zahid, Mamoon Qazi, Khalilur Rehman, Kamal Mansoor Alam — spurned Musharraf’s PCO and promptly found themselves out in the cold. But a majority, preferring discretion over valour, thought it wiser to go along with the new order of things.

Among this lot — the original lot, that is — was Justice Iftikhar Muhammad Chaudhry. And it was from this PCO crowd, which saw no evil in wearing the robes of the judiciary under a usurping general, that the Supreme Court bench was composed which in double-quick time conferred absolution on Musharraf and his triumphant generals.

Chief Justice Irshad Hasan Khan wrote the judgment and the other judges on the bench, including Justice Chaudhry, without adding a word of their own (which was slightly unusual) concurred with his sweeping validation. As PCO judges they were expected to toe the line dictated by the country’s martial law masters and, to no one’s surprise, they went along faithfully, Chief Justice Irshad in front and they in his train. In the museum dedicated to the doctrine of necessity this was another trophy.

So it is not a little surprising to see the present Supreme Court coming down so hard on the Nov 3, 2007, PCO judges when they themselves (most of them, if memory serves) felt few qualms in being PCO judges in January 2000. Let him cast the first stone who hath not sinned, said Christ. Their lordships of the “historic” judgment are no doubt made of sterner stuff, preferring to interpret the past as a closed and shut transaction while bringing down the executioner’s axe on those who could well plead in their defence that they were doing no more than following the example, set in times past, by their betters.

What about the nation which faces a serious test? For it is being asked to believe, if we go along with all the implications of the “historic” verdict, that Musharraf’s rule was legitimate until Nov 3, 2007, and it was only his proclamation of emergency that evening which put him outside the pale of the Constitution. This is a very selective rendering with which most Pakistanis are not likely to agree. .

According to this interpretation Musharraf did nothing unconstitutional from Oct 12, 1999, to Nov 3, 2007, and it was only the period of emergency — from Nov 3 to Dec 15 — which is worthy of judicial censure. In other words, according to the Supreme Court, he was a usurper not for eight and a half years — which most people in Pakistan believe — but for a mere 40-45 days.

As sins of this sort go in Pakistan, this doesn’t amount to much of a transgression. But even if it is considered serious (and there are people who will), its severity is mitigated by the fact that the malefactor (Musharraf) first took off his uniform on Nov 28, 2007 (thus doing the nation a favour it had long demanded) and lifted emergency on Dec 15, 2007, thus returning the country to constitutional rule (as per the implication of the Supreme Court verdict). Not only that but he went on to hold elections. This makes him look not a demonic but rather quite a benign figure.

His original sin, it can be argued, was no longer a sin in the eyes of the law because the PCO of 2000 and the oaths of the judges were validated later by parliament. Very true, but this is hair-splitting. Musharraf was a usurper as were Zia and Yahya and Ayub before him. The others too were validated by various judicial and constitutional instruments. But all these actions remain blots on our history and in the eyes of the people, and in the eyes of history, they are all usurpers who — although this is quite another story — brought great harm to the nation.

Musharraf deserves punishment, as did all military saviours before him. But if Article Six is to be invoked it should be for Oct 12, ‘99, rather than the secondary and much smaller sin of Nov 3, 2007. In that case it is not he alone who should be brought into the dock but all his collaborators — the generals who ordered troop movements on Oct 12, the judges who were effectively his collaborators later and all those who chose to serve under him in various capacities. Flogging Musharraf is easy because he is a dead horse. But if we are serious about retribution our canvas has to be broader.

But since it is not going to be broad, and bringing Musharraf to justice is likely to remain no more than a talking point — because who wants to stir this hornet’s nest? — the more seemly thing is to move on and confront the future and inculcate some humility in ourselves by remembering that in the sins of the Musharraf many now counted among the good and the great, and even the historic, were also complicit.

From such humility — or what the Chinese call self-criticism — will come the strength to face the future, and even fix it in our favour.

Courtesy: The News, Friday, August 07, 2009

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