By Salman K Chima
Coming then to the next point, accountability: Here the General’s performance was disappointing. The National Reconciliation Ordinance is a grotesque law. It is indeed difficult to find any redeeming feature in the NRO. However, attention must be drawn to the fact that the protection offered by the NRO extends only up to October 12, 1999. The General did not seek to protect his own acts. Also, may one ask, have the people of Pakistan done any better by electing the very politicians who are the primary beneficiaries of the law. Why blame Musharraf?
Justice Iftikar Muhammad Chaudhry was not the most popular judge, until he was manhandled by the Islamabad Police. In the ensuing mess, it is easy to forget what the reference was about. Simply put:
The President on the advice of the Prime Minister asked the Supreme Judicial Council (SJC) to opine whether the chief justice (CJ) had committed misconduct. Certain specific allegations (most notably regarding the CJ’s son) were included in the reference. SJC was seized of the matter when a petition was filed by Justice Chaudhry in SC. The Supreme Court, having initially stayed the proceedings before SJC, after three months of hearing (by a majority of 10 against 3) quashed the reference. In doing so, SC decided not to look into contents of the reference.
The Supreme Court ruling is intriguing. One waited anxiously for the detailed judgment; but considering that that may not be forthcoming, one is now left to speculate on possible reasoning.
The honourable judges may have concluded that while a references can be filed against other superior court judges, it cannot however be filed against the Chief Justice of Pakistan. This is faulty reasoning, not sustainable in light of the Constitutional provisions. Also, what happens if a chief justice goes into coma, or is diagnosed with mental incapacity? How would such chief justice be removed?
The other argument that perhaps found favour with the Supreme Court is that the reference was filed with ‘malice’ and was therefore void. But this raises an important issue. If there was a case to answer (which of course could only have been determined by consulting the reference), was it then available to the President/Prime Minister to withhold the Reference — whether with good intentions or bad. Was the President/Prime Minister not under a constitutional duty to refer it to SJC?
It seems to me that there was only one issue that the Supreme Court could have adjudicated: was there a case to answer based on the material contained in the reference. If yes, the President was obligated to refer the matter to SJC. The President’s alleged malice was quite irrelevant to the equation. This was after all not an issue between two private litigants, or even between the President and the Chief Justice. This was rather an issue having to do with Pakistan’s constitution. The Constitution does not permit a chief justice guilty of misconduct to remain in office.
Incidentally, one issue the honorable SC did not decide was whether the reference made out a case to answer. They decided not to consult the reference at all. In my opinion, majority of the honourable SC may have erred in this regard.
Next the Lal Masjid case. The Lal Masjid danda brigade began by taking over the children’s library; then raided various shops that were renting out Indian and western movies (hence unIslamic); then kidnapped three women on the allegation of indulging in immoral activities; then kidnapped eight Chinese nationals on the pretext of indulging in immoral activities. All this while the government was engaging in dialogue with them, with the whole world as witness.
Ultimately, the government gave every occupant of Lal Masjid the option to leave (even to collect Rs. 5,000 per head as travel expense) or face action. This message was communicated loud and clear. And what did the Lal Masjid brigade do? They (in front of live cameras) shot and killed two personnel of the Rangers, and set a government building on fire, while also ceaselessly firing bullets at the law enforcement agencies. Even then the government showed restraint.
It is only when the Lal Masjid militants refused to allow people to leave and threatened to start suicide bombings that the government acted with full vigour. Musharraf and other government functionaries were repeatedly criticized by the ‘free’ media for not taking action, and ultimately the media stood by the Lal Masjid militants when action was taken. The entire responsibility for Lal Masjid episode rests with the Lal Masjid hooligans — and the media also acted highly irresponsibly.
Moving on to the Waziristan operation, international law does not permit Pakistan to allow its citizens or citizens of other countries residing in its territory to wage war against Afghanistan or USA or any other country for that matter. Pakistan therefore had only two options regarding the militants present in Waziristan and elsewhere – to take action, or face action from those threatened by such militants. Such action would have been totally consistent with international law. Musharraf opted for the first and managed to convince the powers that be not to intervene directly.
Imagine if the second option had been implemented — not only would Pakistan be crippled economically, but there would also have been a huge reaction to foreign intervention, and quite possibly the country delivered to Taliban elements. Of course, Musharraf employed the carrot and stick approach and there was at times collateral damage on account of the latter.
We move to the case of ‘missing persons’. Some pertinent questions:
Why has a person gone missing? Could it be that he has voluntarily gone on jihad; or was he picked up by agencies?
Were there more missing persons falling in the latter category, during Musharraf’s time than in earlier regimes?
Did anyone go missing because of his enmity with or criticism of Musharraf?
If these questions are answered, it may well transpire that there were in fact fewer missing persons in Pakistan during Musharraf’s time than ever before. Significantly, it may also be revealed that those who went missing at the hands of the agencies were not ones who opposed Musharraf – these were persons wanted with regard to the war on terror.
Dr. Afia Siddiqui’s case merits mention though. Human Rights groups seem to have concluded that she was kidnapped with her three children by Pakistani agencies in 2003. Consider this:
How come despite multiple meetings with Pakistani officials Dr. Siddiqui has not claimed that she was kept in detention since 2003?
How come her lawyer continues to advise her not to disclose the whereabouts of her detention and that of her kids? How come her son who recently arrived from Afghanistan, has also not made any statement regarding his detention?
How come the current government (with all its opposition to whatever happened during Musharraf’s time) has not blamed any member of any agency for having taken her into custody?
Are we aware of any person kept in detention by the US for five years with their kids?
Has anyone been shot by US Forces while in detention – are we aware of any other case of this nature?
Could it be that she voluntarily went on jihad, took her innocent children with her, and has only recently been taken in detention?
No one, not even Musharraf’s harshest critics, accuse him of personal corruption. An eminent industrialist recently told me that in eight years that Musharraf was at the helm of affairs, he repeatedly called the general, bringing various kinds of government inefficiencies or inactions to his notice. He insists that each such approach was made in the interest of the country, and each time the General took constructive steps to ease the situation. The gentleman then says that he is still waiting for Musharraf’s first call asking for a favour in return, whether for himself or a friend or a relative or anyone at all.
I listen when Musharraf says that every step he took was taken in best national interest. There are some who hold A.Q. Khan as their hero; and there is also the dwindling number of those who raise Justice Iftikhar Chaudhry’s hand as the saviour of Pakistan; one must not expect them to lend their ears to Musharraf’s voice.
God forgive him and forgive us all
Some rise by sin, and some by virtue fall
The writer is a Lahore-based lawyer.