Sense and sensibility

Events of the past few weeks are of great legal and political importance. In an unprecedented trial former president General Musharraf was convicted in treason trial by a special court. Similarly, the Supreme Court intervened in a hitherto prohibited of defence and issued a detailed judgment on the re-appointment of the same person as COAS. A lot has been said and written about them. But the way some of these issues were discussed, deliberated and handled, unfortunately poorly reflect on the polity, its various institutions and the society. In hindsight, it would however, have been better if these matters were handled in a mature and professional way. It is indeed incredible how an elected government and some prestigious state institutions acted and reacted to two simple legal issues. These events and the response thereto raise serious questions about the ability to deal with some more complex issues. Elsewhere, a President is being impeached but the life has not disrupted.

It all began somewhere in 2009. It was clear that it was coming. What happened on 3 November 2007 and in its aftermath was indeed a harbinger for the future. Tectonic plates had collided which required adjustments. People heading different institutions at that time were unwilling to let it go without affecting revenge. It ultimately manifested itself into the initiation, prosecution and ultimately the conviction of General Musharraf. The party in power from 2008-2013 smartly avoided and prevaricated this trial. It did not disturb civil and military relations although it agreed through its proxies in laying down several foundational acts, which ultimately led to the trial and conviction. Its stance in the Sindh High Court Bar case (2009) was unclear to say the least. The Eighteenth Amendment,2010 that amended Article 6 and added new grounds of high treason almost went unnoticed under a false belief that it would not have a retrospective effect. That Amendment also snatched away the immunity granted to some of the extra-constitutional acts between 1999-2003,which in a way amounted to a bill of attainder. It actually also provided the ground for the trial of General Musharraf. Then every following day only closed on that target. It was soon clear that the Government coming to power 2013 was unwilling to forgive and abandon its hot pursuit of the matter. This led to the political instability of coming years. Every judgement on this issue had a common theme. General Musharraf was to be tried for his extra constitutional acts of 2007. The trial began under the direction of the Supreme Court after an assurance from the Federal Government. It soon became apparent to the General's sympathizers that he would not get a fair trial and therefore they avoided to submit to the trial. They strove to delay it not realizing that this time around things had fundamentally changed and they were dealing with a different institution- newly empowered judiciary, having a popular support and wearing the mantle of messiah that was unwilling to let it go. Thus the case became a Shakespearian tragedy. Itwas also clear from the judgement in the review petition filed by General Musharraf (2014) that he lacked sympathy. Now many pundits claim that he was given a fair trial. It is less than accurate and an attempt to prejudice and influence the appeal. They deliberately avoid discussing the way this trial began. One would recall that even Pinochet of Chili got better treatment when it came to basic rights and fair trial. It is not for his sake that liberties and rights guaranteed by our Constitution are upheld and put beyond compromise but for all those who may step on the wrong side of the system and need a protection.

A critical view of the past can serve as a guide to a better future course. The fact is that General Musharraf has been convicted and there is a judicial decision against him in the field. He has a right of appeal before the Supreme Court. He has been convicted in absentia but to file an appeal to the Supreme Court he needs to surrender although there might be a precedent supporting filing of an appeal in absentia as in the BB's case. As it is a statutory appeal, in all probability and the judgement would be suspended as a matter of course. The appellant must insist on an independent and unbiased bench. This is his right. The appellant may also question the integrity of the trial and the whole process, which may not be beyond suspicion when seen in the context of all events. It however seems that some other ways are being tried that might not be fruitful.

The matter of extension was taken by the Court in the most unusual circumstances which ushered in a debate from the beginning that may have influenced the Court proceedings but not necessarily the outcome. A judgement is in the field now. The Court has provided sufficient time and way to the Federal Government suggesting legislation to overcome an apparent legal impasse. Again, the way such an important issue was brought before the Court, the manner it proceeded for few days creating huge impact and ultimately decided and then publically discussed, again poorly reflected on us all. The issue of the appointment and re-appointment and extension and the way Article 243 is worded and the constitutional principles involved in it, seems to have been completely overlooked. It is true that such questions have never come before the Court and for right reasons. There is hardly a precedent on it. It is one of the basic constitutional principles provided in our Constitution that not every question is justiciable. The question whether such extension should be sought or given is not a legal question and is better left to the policy domain. The Government has filed a review petition. It may also change the law and constitution to put it beyond the reach of courts.

Every crisis brings with it an opportunity of testing our capabilities. A response without a study and reflection is bound to fail. Now that Court has provided a way out, Parliament can legislate upon on all issues and resolve all problems in a nice way putting back the nation and country on the road to progress. The first step towards learning is to admit one's limitation.