The reach of law must be reasonable and dispassionate
The history of Pakistan has been written by the pen of the powerful in the ink of vindiction. The constitutional aberration of Field Marshal Ayub Khan, having ‘won’ (can we call it that?) against Fatima Jinnah, ensured that she never again gains any position of prominence. Zulfiqar Ali Bhutto, known for his brilliance, arrogance, and a vindictive wadera streak, ensured that the entire muscle of the state machinery is to used stamp his individual authority over all other institutions and to silence voices of dissent. When Bhutto was overthrown, by Zia, bringing about the most abominable regime of our national history, the sword of vindiction turned towards Pakistan People’s Party, resulting in the hanging of Zulfiqar Bhutto and flogging of his party workers. The decade to follow, the 1990s, scripted a see-saw of vindiction between the children of Zia and those of Bhutto, each getting their short stints in power, and using that time to persecute the opposition. And then, enter: Musharraf, in the latest of the constitutional aberrations. Having overthrown the PML-N government, the Musharraf regime unraveled their own malevolent agenda of stamping out the Sharifs, and persecuting their supporters. And it was only when their vindictiveness went a step too far, targeting the judiciary in 2007, that the regime crumpled, and brought to power those whose first act of governance was to banish Musharraf and destroy all semblance of his ‘legacy’. And now, 5 years later, stepping foot on Pakistani soil again, General Musharraf finds himself under arrest, with a plethora of criminal and constitutional charges against him, in yet another link in the chain of vindictiveness that is Pakistan’s politics.
Let’ start with a brief overview of some of the charges against General Musharraf. The retired General has been implicated in numerous criminal and constitutional violations. Charges against him range from the murder of Shaheed Benazir Bhutto, to the murder of Akbar Bugti, the Lal Masjid Operation, and the imposition of Emergency (along with illegal imprisonment of the constitutional judges) on November 3, 2007. And for almost 5 years, despite being ordered to appear before different courts of law on numerous occasions, the General has stayed in a self-imposed exile, as a result of which he has been declared a ‘fugitive’ (or absconder) of law. In terms of the law, this means that, per section 87 of the Criminal Procedure Code, 1908, “if any Court is satisfied after taking evidence that any person against whom a warrant has been issued by it has absconded or is concealing himself”, the court may, through a published proclamation, declare such person to be an absconder from law. Such a proclamation entails that the concerned absconder, in the particular case, cannot be granted a “pre-arrest bail”, and must ‘surrender’ to the law enforcement agencies (and before the court) before a “post-arrest bail” is granted to him on merits. (It is noteworthy to observe, however, that some exceptions exist to this settled principle of law, including the grant of pre-arrest bail, by the honorable Supreme Court of Pakistan, to Malik Riaz, after he had been declared an absconder from law by the honorable Peshawar High Court).
In case of General Musharraf, on Friday, the honorable Islamabad High Court ruled that the allegations against him, in regards to the illegal detention of judges on November 3, 20007, amount to an act of terrorism, and ordered that the retired General be arrested and produced before the anti-terrorism court in Islamabad. In this regard, while the retired General was not handcuffed, he was placed in police custody. Thereafter, the anti-terrorism court ordered the retired General to judicial remand of two weeks, and the law enforcement agencies are still mulling over whether to keep him in police headquarters, a jail cell, or his own house (which can be declared as sub-jail).
What will be fate of the retired General (at least over the next few months) is anybody’s guess. But one thing is for sure: his future, while still unclear at the moment, rests squarely in the hands of the judiciary now. And this, for all intents and purposes, is probably the retired General’s worst fear.
It cannot be denied that the General has much to pay for. Abrogation of the Constitution, imposition of illegal emergency, imprisoning the judges, financial scams during his tenure, and political assassinations, all entail questions that the retired General needs to answer. And fidelity to the law and constitutionalism, mandates that he be treated (in all these cases) as any other citizen of Pakistan, to the fullest extent of the law, without passion or prejudice.
But this is exactly where the test of our legal resolve steps in: that he be treated without any passion or prejudice. And already, there is writing on the walls that the General should harbor no such illusions. For example, much hue and cry has been raised by the media, as well as politicians from all sides of the partisan divide, that the General be sent to ‘jail’, and not be imprisoned in his own house. Whereas, no such protest was made in other cases, where individuals were imprisoned in their own houses (or even guest houses), including the house-imprisonment of Dr A.Q. Khan, or the imprisonment of the elder Ghazi brother in a rest-house in Simli Dam.
A new and powerful streak of jurisprudence has recently emerged out the superior courts; one that holds khaki generals (somewhat) accountable for their actions. Starting perhaps from the Asghar Khan case, and stretching to the esoteric reaches of the missing persons saga, the judiciary has shown a newfound resolve to confront the khahkis. This streak of jurisprudence must be cherished. It must be encouraged and strengthened. But it must not be used vindictively on a few (retired) generals, while sparing others, as in the case of the Abbotabad Commission and the Salim Shahzad murder.
The reach of law must be full, and unflinching. It must be relentless and unsparing. But, in order to break this perpetual circle of vindiction, the reach of law must also be reasonable and dispassionate. It must be measured and bona fide.
While treating Musharraf, in accordance with law, our political and judicial fraternity also has the opportunity of showing grace, where those before them have not. They have the opportunity of not following the retired General’s footsteps of being spiteful. They have the chance to show that justice is not simply an instrument of leveling past scores. They have the prerogative to break this cycle of vindiction, and set sails for a new course – one where the empire of law is not fueled by individual passions of hatred.
The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: [email protected]
