The sun sets only to rise again

Will Pervez Mushar­raf suc­ceed in fight­ing the re­venge and vendetta around him and be­come a free man again?

Southasia - - FRONT PAGE - By Hu­mayun Gauhar

Cut to the chase to cut the crap. One is all for ac­count­abil­ity for al­leged crimes and mis­deeds, but only un­der due process by un­bi­ased judges and where the al­leged crime is taken in its en­tirety and with­out se­lec­tiv­ity. Else nat­u­ral jus­tice is trashed and the ex­er­cise be­comes a witch-hunt. That is ob­vi­ously so in the trea­son trial against Gen­eral Pervez Mushar­raf.

If, by the time you read this, Mushar­raf is out of the coun­try on med­i­cal grounds, the govern­ment and ju­di­ciary will be off this hook. If the ‘Spe­cial Court’ sup­pos­edly ‘try­ing’ him for ‘trea­son’ has re­jected his med­i­cal re­port and in­sists on his pro­duc­tion so that he can be in­dicted and the ‘trial’ can pro­ceed, the witch-hunt will go on. Chances then are that Mushar­raf may refuse to ap­pear be­fore it be­cause he doesn’t rec­og­nize the le­gal­ity of this kan­ga­roo court and his lawyers may boy­cott the pro­ceed­ings. Pak­istan will be at a flash­point.

The way some lawyers, an­a­lysts and an­chors are twist­ing Mushar­raf’s sec­ond med­i­cal re­port reeks not only of bias but trial by me­dia. The re­port says that he needs an an­giog­ra­phy ur­gently to de­ter­mine the ex­tent of his ar­te­rial block­ages and their ex­act lo­ca­tions so that a by­pass oper­a­tion can take place. Like scoundrels, his de­trac­tors take refuge in sham pa­tri­o­tism and ask: why doesn’t Mushar­raf trust Pak­istani doc­tors?

I’ll tell you why. The rhythm of Mushar­raf’s heart is er­ratic or va­sospas­tic, mean­ing spasms in the ves­sels of the heart. He has un­sta­ble angina that can oc­cur at rest or dur­ing phys­i­cal, men­tal or emo­tional stress. His heart­beat can be­come very er­ratic, slow or go very high. An­giog­ra­phy causes stress to the heart. When the heart beats faster it de­mands more blood faster. When blood rushes faster and bangs against blocked or vir­tu­ally blocked pipes it causes ed­dies that form clots within min­utes that can cause a car­diac ar­rest. A by­pass oper­a­tion has to be done then and there. Death can oc­cur in­stan­ta­neously. The last thing the doc­tors want is such an event hap­pen­ing to such a high pro­file per­son on their ta­ble, for they may not be able to cope with it and don’t want to risk it. Nei­ther do Mushar­raf and his fam­ily and any­one with any sense. It is the right of ev­ery pa­tient to get treat­ment where he wants and by whom. If, God for­bid, some­thing goes wrong dur­ing the an­giog­ra­phy, do the Pak­istani doc­tors, govern­ment, courts and prose­cu­tors want to take the blame for it and go down in his­tory as idiots?

Mushar­raf’s prob­lem is ge­netic: his fa­ther died of it. If get­ting treat­ment in Pak­istan when you can cer­tainly get it abroad is a sign of pa­tri­o­tism, then why did Nawaz Sharif get heart op­er­a­tions in Lon­don and Asif Zar­dari in the US, in­clud­ing get­ting him­self de­clared mad by for­eign doc­tors more than

once? By this logic, the con­clu­sion has to be that Sharif and Zar­dari are not pa­tri­otic, along with many other politi­cians who opted for treat­ment abroad. A min­is­ter of Nawaz Sharif’s cab­i­net says that people un­der trial shouldn’t be al­lowed to go abroad for treat­ment. That then rules out the Shar­ifs, Zar­dari and many oth­ers from over­seas treat­ment in fu­ture as they have so many cases pend­ing against them and are es­sen­tially un­der trial, con­sti­tu­tional im­mu­nity be damned. Sure Mushar­raf is a sol­dier sworn to give his life for his coun­try, but is wast­ing one’s life at the al­tar of stu­pid­ity pa­tri­otic?

The fear that he will not re­turn is un­founded in his­tory. He will once he is well as he did last year know­ing the tri­als and tribu­la­tion, per­se­cu­tion, ha­rass­ment and tor­ment he would have to face. Mushar­raf is the only one amongst our so-called lead­ers who had the guts to vol­un­tar­ily re­turn to his coun­try to face his en­e­mies. He will again. He did it to prove that he is not guilty of any of the things he is ac­cused of. Why would he take refuge abroad un­til his point his proved? The ques­tion is: will his tor­men­tors and per­se­cu­tors out­last his treat­ment?

The trea­son case reeks of bias be­cause it is based on mul­ti­ple­s­e­lec­tiv­ity.

1. Mushar­raf is be­ing tried only un­der Ar­ti­cle 6-a of the Con­sti­tu­tion while Ar­ti­cles 6-b and -c are be­ing ig­nored.

2. With Ar­ti­cle 6-b not be­ing ap­plied, aiders and abet­tors are be­ing ig­nored, which can­not be done.

3. He is be­ing tried retroac­tively un­der a new law that did not ex­ist when he im­posed emer­gency on Novem­ber 3, 2007, which is a vi­o­la­tion of nat­u­ral law. The words ‘ab­ro­ga­tion’ and ‘mar­tial law’ are be­ing bandied about with great aban­don while Mushar­raf never im­posed mar­tial law nor ab­ro­gated the Con­sti­tu­tion. He only put it in abeyance for a while. The word ‘abeyance’ was added later to Ar­ti­cle 6 un­der the 18th Amend­ment with ob­vi­ous mal­ice afore­thought but it can­not be ap­plied retroac­tively.

4. The army’s coun­ter­coup of Oc­to­ber 12, 1999 that gave birth to the Novem­ber 3, 2007 emer­gency is be­ing ig­nored while the lat­ter al­leged crime has been sin­gled out. That is sep­a­rat­ing ef­fect from cause: if Oc­to­ber 12, 1999 had not been le­git­imized by the Supreme Court (also com­pris­ing Iftikhar Chaudhry) and in­dem­ni­fied by par­lia­ment, Novem­ber 3, 2007 would not have hap­pened. That le­git­imiza­tion and in­dem­nity have been set aside by the 18th Amend­ment too, so how can they ig­nore Oc­to­ber 12, 1999? To pro­tect some ‘holy cows’?

5. The ‘Spe­cial Court’ leaves one askance be­cause of the sus­pected bias of the judges against Pervez Mushar­raf. It was es­tab­lished in vi­o­la­tion of the Con­sti­tu­tion be­cause the Chief Jus­tice of the Supreme Court can­not be asked to give a short list of judges for the govern­ment to choose from.

The trea­son case is bo­gus too be­cause it stands on the wob­bly pil­lars of two highly sus­pect judg­ments or or­ders of the Supreme Court:

The Novem­ber 3, 2007 ‘or­der’ of a pur­ported seven-mem­ber Supreme Court bench headed by for­mer Chief Jus­tice Iftikhar Chaudhry declar­ing that the im­po­si­tion of emer­gency a few hours ear­lier was il­le­gal. Jus­tice Yas­min Ab­basey, wrongly re­moved by Iftikhar Chaudhry and his re­stored fel­low judges, says that the or­der is a fake and a forgery and she has filed a ref­er­ence with the Pres­i­dent against it. When she asked the reg­is­trar of the Sindh High Court for a copy of the pur­ported or­der, he replied in writ­ing the next day as he had been in­structed to in­form her that such an or­der does not ex­ist with the court. The Chief Jus­tice con­ve­niently for­got that he too had taken oath un­der Mushar­raf’s first PCO. How hyp­o­crit­i­cal can you get but if you are Iftikhar Chaudhry you can break all bounds of hypocrisy I sup­pose. The in­escapable con­clu­sion is that they found the first PCO le­gal be­cause it saved their jobs and the sec­ond PCO il­le­gal be­cause they lost their jobs. They re­moved more judges of the su­pe­rior ju­di­ciary for tak­ing oath un­der PCO II than Mushar­raf had un­der the emer­gency. It was the day of the long knives, a day of ju­di­cial geno­cide.

The July 31, 2009 or­der of the Supreme Court also un­der Iftikhar Chaudhry ( who else?) is il­le­gal too be­cause the Con­sti­tu­tion does not give the Supreme Court ju­ris­dic­tion to ‘or­der’ the federal govern­ment to start a trea­son trial against any­one. In so do­ing, the Supreme Court threw the Con­sti­tu­tion out of the win­dow be­cause only the federal govern­ment in cab­i­net can de­cide to ini­ti­ate a trea­son trial un­der Ar­ti­cle 6. In more than im­ply­ing that the Gen­eral is guilty of trea­son, the Supreme Court threw due process out of the win­dow too be­cause they trashed the pre­sump­tion of in­no­cence. Worse, it was an­other case of two judges on to which Iftikhar Chaudhry and his bench vol­un­tar­ily added on the trea­son trial based on the Novem­ber 3, 2007 emer­gency im­po­si­tion.

This govern­ment’s ex­cuse that it had to ini­ti­ate the trial be­cause the Supreme Court had or­dered it to do so is pop­py­cock. The pre­vi­ous govern­ment felt no such com­pul­sion be­cause it had a bet­ter sense of self­sur­vival. How can they obey an il­le­gal or­der? Ac­tu­ally, the govern­ment is now try­ing to pass the buck to the court and the court is pass­ing it back or try­ing to duck it.

In her ref­er­ence, Jus­tice Yas­min Ab­basey says that her re­moval and that of over 100 other su­pe­rior court judges by Iftikhar Chaudhry and 13 other judges of the Supreme Court for tak­ing oath un­der Mushar­raf’s sec­ond Pro­vi­sional Con­sti­tu­tional Or­der (PCO) was wrong be­cause due process was ig­nored and the judges were not af­forded their fun­da­men­tal right of be­ing heard or of ap­peal or re­view that the Con­sti­tu­tion guar­an­tees. She says that at least two if not three of the seven judges were not present in Is­lam­abad on Novem­ber 3, 2007. The sig­na­ture of one judge doesn’t look as if it is his. The so-called bench didn’t meet in the Supreme Court build­ing ei­ther. Were the cur­rent Supreme Court to throw out this fake or­der and the July 31, 2009 or­der to ini­ti­ate a trea­son trial against Mushar­raf, as it should, the bo­gus trea­son case will col­lapse and Nawaz Sharif would be off the hook. They will do him a favour.

And im­por­tantly, it is not trea­son to im­pose emer­gency; the Con­sti­tu­tion al­lows it. It is not trea­son to sack judges un­der emer­gency. If it is, then phys­i­cally at­tack­ing the Supreme Court build­ing and forc­ing the Chief Jus­tice out of of­fice af­ter pur­chas­ing some of his fel­low judges is also high trea­son and Nawaz Sharif and his aiders and abet­tors should be tried for trea­son too.

Re­scind­ing the fake Novem­ber 3, 2007 or­der of the Supreme Court will have cer­tain con­se­quences, like the 2008 elec­tions be­com­ing ques­tion­able, but that can be han­dled un­der the ‘past and closed trans­ac­tion’ prin­ci­ple, like many mem­bers of the rul­ing PML-N tak­ing oath as min­is­ters

from a sup­pos­edly il­le­gal pres­i­dent. Is that trea­son? We can­not wind the hands of the clock back en­tirely and bring the State to a grind­ing halt, not that the in­ept­ness of this and the past govern­ment haven’t. The Supreme Court headed by Chief Jus­tice Dogar will be­come le­gal and all the judges of the su­pe­rior ju­di­ciary wrongly thrown out by the re­stored Chief Jus­tice and other such judges will be re­in­stated. Those who have reached re­tire­ment age should be re­tired but their lapsed salaries given to them and their hon­our re­stored while the good amongst them should be re­tained.

It seems that the cur­rent Supreme Court is rec­og­niz­ing the in­va­lid­ity of the judg­ment sack­ing these judges be­cause two of the judges thus sacked are be­ing con­sid­ered for ap­point­ment to the Balochis­tan High Court.

The govern­ment should have it­self set up the Spe­cial Court to hold the trea­son trial and not un­der ad­vice from the then Chief Jus­tice of the Supreme Court, but it did just that. The im­par­tial­ity of the three judges on it is highly ques­tion­able, as is the man­ner in which one of them was made a High Court judge. It will also pre­vent the coun­ter­coup by the army against Nawaz Sharif’s coup against it on Oc­to­ber 12, 1999 from com­ing into the equa­tion thus sav­ing Sharif, Iftikhar Chaudhry, many gen­er­als and politi­cians from be­ing dragged through the courts. The coun­try can then get on with sav­ing it­self.

Nawaz Sharif’s govern­ment has painted it­self into a cor­ner and cre­ated a co­nun­drum for the army. If the Supreme Court over­turns these two wrong or­ders or judg­ments, the paint around Nawaz Sharif will re­cede and he can con­tinue try­ing to ne­go­ti­ate with Pak­istan’s en­e­mies and the army can try and limit the dam­age as much as it can.

Gen­eral Pervez Mushar­raf and his trea­son trial is a bo­gey to di­vert at­ten­tion from the govern­ment’s in­ca­pac­ity to ad­dress the mul­ti­far­i­ous real is­sues af­flict­ing Pak­istan: a de­clin­ing econ­omy, ram­pant ter­ror­ism, re­venge, and fur­ther degra­da­tion of the army to pre­vent fu­ture in­ter­ven­tion caused by govern­ment fail­ures and stu­pidi­ties that en­dan­ger the State. Such shenani­gans work only for a while. When the dust set­tles on the trial, the govern­ment’s and the sys­tem’s fail­ures will come into sharp fo­cus again. Next will come the erup­tion spew­ing rivers of hu­man­ity on fire. Wait for March and Tahir ul Qadri.

Asif Zar­dari, Nawaz Sharif - pa­tri­otic Pak­ista­nis who un­der­went

heart op­er­a­tions abroad.

Newspapers in English

Newspapers from Pakistan

© PressReader. All rights reserved.