On errors past —Shaukat Qadir

There are very few among the people of this country who would like to see Zardari as the president. Yet it is his right to contest the election and, if his electorate returns him, assume the office of our president

An article in a newspaper expressed the view that it is the Army’s responsibility to rectify the mess General (retd) Pervez Musharraf created. If the power of the gun can be used to create this mess, why can’t the power of the gun be used to undo it, in the interest of the nation? The article was written by a senior analyst.

This article is not intended as a rebuttal but only as an objective effort to consider the implications of what is being asked of the Army. The writer expects the present COAS to a) undo the PCO issued November 3, 2007, b) restore the judiciary to the pre-November 3 status, and c) undo the NRO, ensuring that all beneficiaries are tried under law. He also wants another NAB, but we will only consider these requirements for our discussion.

Let us first re-examine Musharraf’s antics on November 3, 2007; the most farcical game of musical chairs ever played — were it not tragic, it could even have been funny. He left his presidential chair, where he enjoyed the constitutional right to declare an emergency, which could however, be subsequently challenged in the Supreme Court; sat on the COAS’ chair, declared an extra-constitutional emergency, issued a PCO asking all judges to take another oath indemnifying his actions, effectively getting rid of the judges that were a thorn in his side.

Having safeguarded himself in his capacity as the President, by violating it as the COAS, he now, as the President, issued the NRO, which ensured protection to all criminals from prosecution so as to provide protection to the PPP with which he had struck a deal.

There is, I think, a Latin canon, which roughly translates to ‘let him who has erred, rectify’. If such a canon might be considered applicable here and, since Musharraf was the COAS and undoubtedly could not have dared violate the constitution without the tacit, even if very disapproving, support of the top brass of the army, the responsibility for his errors could be considered collective: to be shared by the army, not necessarily borne by Musharraf alone.

Were we to assume collective responsibility, we would now have to consider how the COAS under a democratic disposition could rectify the errors of a previous COAS/President who committed these errors by violating the constitution.

There is obviously no constitutional clause under which he could act and, even if he dearly wanted to, he could only do so by extra-constitutional means. He would again find it necessary to violate the constitution, declare an unconstitutional emergency, undo all that Musharraf did post-November 3, before removing the emergency to hand over the government back to the elected representatives.

Was the elected government to then take the COAS to court under Article 6 of the Constitution? Would the reinstated judiciary declare him not guilty under the principle that the ends justify the means, since they are beneficiaries who have been reinstated? Or would they find him guilty under the principle that two wrongs cannot make a right?

Even if he were to be granted indemnity for his acts, would he not have set an even more dangerous precedent that democracy can only function once the army lays down parameters for it to function in?

By undoing Musharraf’s violations of the constitution, what would be the COAS’ practical achievements?

He would have reinstated a judiciary led by CJ Iftikhar Muhammed Chaudhry, who has indeed politicised himself to an extent that can be dangerous. He would have successfully disqualified x number of politicians, led by the presidential-hopeful Zardari, from holding their seats, which they are doing courtesy the indemnity granted to them by the NRO; and perhaps also force many of them to flee the country.

In other words, he would have decided who could be an elected representative and who could not. How would that be different from the performance of previous military dictators?

Indeed the entire country is concerned with the political developments taking place. There are very few among the people of this country who would like to see Zardari as the president. Yet it is his right to contest the election, and if his electorate returns him, assume the office of our president. We, the people, can only hope that this leopard has changed his spots and, if not, that there are sufficient number of politicians with enough conscience left to remove him by constitutional means.

If we are fortunate in having a COAS who chooses to remain aloof from politics, let us help him remain so, unless he sees ‘a clear and present danger’ for which he finds it necessary to assist the political process by holding another election.

This article is a modified version of the original written for the daily National

Source: Daily Times, 6/9/2008


Leave a Reply