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WITH our exemplary commitment to the rule of law and the Constitution, the outrage caused by what must now be the most well-known paragraph ever written in our judicial history could have been predicted.
The shock, horror and disgust that was expressed was understandable in a country brutalised by years of state patronage to bigots and those who wish to drag Pakistan back to the medieval times. Among Para 66 critics were some of the country’s leading liberals.
The disdain for the para by these liberals, among them lawyers, journalists, academics, was predictable too as they have spoken out against each breach of a citizen’s fundamental rights or brazen disregard for the Constitution, law or elected institutions and promulgation of medieval laws.
To an extent I’d include myself among such objectors to the para. But I will stop way short of saying para 66 has overshadowed and nullified the special court judgement in the Pervez Musharraf high treason trial for his actions on Nov 3, 2007.
Anybody believing that has to read lawyer-broadcaster Babar Sattar’s piece titled Rule of law or force? in The News (Dec 21). Babar’s legal nous is public knowledge and I admire the brilliant man’s ability to be clinical and incisive.
Once the detailed verdict was out, one paragraph seemed to have acquired a life greater than the entire judgement.
In a mere 1,000 words, he has peeled away the layers of both deliberate obfuscation and well-meaning concern to bare the heart of the matter. He described para 66 as an own goal but then demolished each self-serving argument against the former military ruler’s conviction.
Let me unashamedly state I am opposed to the death penalty on a number of grounds: it may be inhumane; its deterrent value is highly overrated and is questionable. Equally, in case of a miscarriage of justice no redress is possible.
So, for me, the thought of a dead convict’s corpse being dragged through the streets and being hanged in a public square is too horrible a spectacle to even picture let alone witness in real life. That said the para, being minority opinion, is not an enforceable or operational part of the verdict.
Those who can’t or won’t see the woods for the trees will, I fear, go round in circles given the volume of sponsored disinformation and obfuscation that is being blasted on the electronic media these days. This would have made Joseph Goebbels proud.
Remember the day the verdict was announced? There was no offending para 66 in the public domain till 24 hours later. Even then the ISPR statement expressed ‘pain and anguish’ at the verdict and, recalling the offices held by the former army chief, said he could not be a traitor.
Although I am aware that the army has its own legal experts in the JAG (Judge Advocate-General) Branch, the objections (mostly questionable) raised in the ISPR statement seemed to reflect the thinking of the legal eagles who have served as lawyers on Pervez Musharraf’s team.
These very legal experts could not get one notification of the incumbent army chief’s extension right, despite several attempts, so those relying on their expertise will be well-advised to seek independent, credible legal opinion before sharing the cause of their ‘pain and anguish’ with the public.
Of course, once the detailed verdict was out, one paragraph seemed to have acquired a life greater than the entire judgement in what many credible legal experts described as an open-and-shut case and the outrage over it, both manufactured and genuine, was amplified.
Attorney-General Capt (retired) Anwar Mansoor Khan led the official government reaction and, in his defence of the former dictator, went to the extent of questioning the sanity of the Special Court Judge, Mr Justice Waqar Seth.
Unlike the attorney general who, in addition to being passionate about upholding the law and the Constitution, feels qualified to pronounce judgment on the ‘mental state’ of a judge whose words he disagrees with, I claim no such qualification.
But even to my humble understanding, My Lord does seem to struggle to pass the sanity test. Anwar Mansoor is totally sane and prudent beyond doubt, given his desire to serve or please the only real centre of power in the country.
To the contrary, heading a Peshawar High Court bench My Lord, the chief justice of the Peshawar High Court, pointed out several violations of the law, almost identically worded ‘confessional statements’ of some of the accused which formed the basis of the award of death penalty by special military courts to 74 people, and suspended the sentences in October 2018.
He also asked the government to furnish the details of those lodged in ‘internment centres’ in the province. The case is currently before the Supreme Court of Pakistan on appeal. I can’t even imagine the pressure the honourable judge would have had to bear in the process of reaching his decision.
Then in October this year, a PHC bench led by Justice Waqar Seth struck down the Khyber Pakhtunkhwa Action (in aid of civil power) Ordinance in the province which was aimed to extend extraordinary policing powers the army enjoys in the former Fata districts to the rest of the KP.
One can imagine these bold verdicts must be rooted in Justice Seth’s unflinching commitment to the Constitution and the rule of law which enshrines civil liberties some institutions find an inconvenient obstacle to their preferred mode of law enforcement.
In our current environment where freedoms are shrinking every single day unchecked such adherence to constitutional provisions must be insane. Right?
His controversial para may have been driven by Cromwell’s fate or his revulsion at the desecration of the Constitution. Even he would have known the former dictator will never have to face the consequences of his extra constitutional actions.
The verdict has symbolic value alone, as did the Asma Jilani case. But the ground reality remains. The home of the prosecutor in the case, Akram Shaikh, was raided overnight by ‘sane’ armed men. They rummaged through his house and threatened him.
Verdict or not, institutional overreach continues. If it does not stop, we’ll be back to square one over and over again.
The writer is a former editor of Dawn.
Published in Dawn, December 22nd, 2019
