bY Ikram Sehgal
That his Nov 3, 2007, pre-emptive strike against the Supreme Court was illegal and unconstitutional was acknowledged by Pervez Musharraf soon after the event, and it was logical for the excesses of this blatantly self-serving action to be legally reversed. The Supreme Court "Short Order" will be a historic verdict provided the detailed judgment reaches its logical conclusion: accountability across the board.
The paradox is that, even though it was popular in the streets and among the intelligentsia at that time, the Oct 12, 1999, coup was far more illegal and unconstitutional. It put an elected prime minister in jail, sent Parliament packing – and coerced the judges to take fresh oaths under PCO 2000. It will be interesting to see how the detailed judgment differentiates between Oct 12 and Nov 3, particularly for those two Supreme Court judges who now face the Supreme Judicial Council (SJC) for talking oath under PCO 2007.
The Supreme Court reverted to "the doctrine of necessity" to avoid "derailing" the system, leaving it to Parliament to ratify within 90 days those presidential ordinances and constitutional amendments issued post-haste before Nov 3, 2007, until Dec 15, 2007, including the obnoxious amendment desecrating the Constitution by making the NRO a part of it.
Our Parliamentarians, who have a sorry history of succumbing to influence, will either (1) blacken the Constitution by ratifying the NRO or (2) let the NRO lapse for all past and closed transactions, on the "Malik Asad" formula. This black law not only legalises corruption of the past, it is an incentive for the crooks of the present and the future. Just read what eminent media personality Kamran Khan has exposed in the last week!
To quote, "Why do martial laws fail?" written in 1995: "Martial laws fail because the initiators of extra-constitutional rule ride into town on tanks with the lofty Aim of saving the country, relying on that platonic national purpose to make themselves credible but they soon adjust the Aim to more material (and less patriotic) reasons of self-perpetuation. The original Aim, which remains publicly the same, becomes an exercise in self-delusion. Martial laws fail because a lot of lip-service is given to self-accountability but there is no real will to ensure that those who misuse their powers in any manner will be brought to similar summary justice as they are prescribing for others. It is no secret that many people have made millions due to martial law and its derivatives.
"Martial laws fail because the Armed Forces get themselves involved in mundane, routine bureaucratic duties that they are not supposed to be involved in. Martial laws fail because those who impose martial laws do not have correct knowledge about the working of the state or the individuals who run it, soon being surrounded by sycophants who are usually holdovers from previous governments. Easily susceptible to flattery and manipulation, our martial law leaders attract adventurers and adventuresses like bees to honey. They could not shake off leeches in one form or the other, undercutting the integrity of the Martial Law Regimes, making them worse than the political and/or civil rule they had come to save the people from."
The application of the doctrine of necessity does become necessary sometimes, it goes wrong when those that apply it forget that their role is limited, to support technocrat governance for a short period and not become part of it. They are soldiers, and when they become part of the wrong they came to correct, they force-multiply the wrongs into a catastrophe, like Musharraf eventually did. All soldiers take an oath to defend the Constitution "even to the peril of their lives." If the cause is just and their motivation pure, why should they fear their fate if they are forced by circumstances to violate that oath? Unless they used their acquired powers under martial law to enrich themselves, their friends and relations, actions being in good faith and without excesses, soldiers can always face up to the consequences of their actions. The COAS of Bangladeshi Army, Gen Moeen, and his associates successfully managed "the Bangladesh Model" in 2007 and 2008, and returned to the barracks, Gen Moeen subsequently retired. No court in the world can convict them in circumstances of "Clear and Present Danger" to the country for violating their oath. Our Lordships would do well to read up on the most eminent jurist of his time, US Justice Oliver Wendell Holmes.
The men of the Pakistani Army are correcting the excesses of ineffective and corrupt governance complicated by political indecision by shedding their blood in Swat and FATA. One notes with pride that major generals down to the ordinary soldier have been engaged in actual combat, physically in "the line of fire," instead of just talking (and writing) about it. To paraphrase Winston Churchill, never has so much sacrifice been rendered by so many to keep so few crooked in such absolute luxury. Does the military hierarchy put a value of this precious blood against the property in Dubai owned by the beneficiaries of corruption?
While many are calling for Musharraf's trial (and he has given enough reasons for it), it is unthinkable that the entire army be subjected to vituperation by all and sundry because of the ambitions of one errant individual. Pervez Musharraf missed a huge opportunity to make a legal defence of "the doctrine of necessity" through his team of eminent lawyers. Who can guarantee that Pakistan will not face such a crisis requiring such necessity in the future? Madame de Steal said of Napoleon's coup de etat: "As soon as the moral power of the national representation was destroyed, a legislative body, whatever it might be, meant no more to the military than a crowd of five hundred men, less vigorous and disciplined than a battalion of the same number." Something on the lines of Chaudhry Shujaat's "two trucks and a jeep"!
History is witness that armies returning from the field have a low threshold of toleration of a blatantly corrupt system. For them the NRO will not stand. The Supreme Court can declare the Nov 3 action illegal a million times, and the prime minister may grandly announce that the Supreme Court has "shut the door on dictatorship," the NRO will remain a red flag for future military intervention. The NRO is an excellent reason to keep the army involved in a war without end!
The writer is a defence and political
analyst. Email: firstname.lastname@example.org