Editorial: The politics of indicting Musharraf

[fatman17]

Editorial: The politics of indicting Musharraf

Prime Minister Yousaf Raza Gilani says his government is ready to try former President General Pervez Musharraf (retd) for high treason if the National Assembly demands such action through a unanimous resolution. This is his conditional answer to the statement of the leader of the opposition, Chaudhry Nisar Ali Khan, that the PMLN would move a resolution in the national assembly for the retired general’s trial for high treason. The PMLN believes it can obtain a resolution through a simple majority in the house. This is what the Attorney General of Pakistan Sardar Latif Khan Khosa too had said on Monday: “If a resolution for conducting the trial of the former president is moved in the parliament and approved, the government was bound to act upon the decision of the supreme law-making body”. Prime Minister Gilani, by asking for a unanimous resolution on the question of indictment, seems to be “correcting” the attorney general. Or at least he is “correcting” him regarding the “obligation” of the government after a simple-majority resolution. He seems to imply that the government would be “obliged” only if the National Assembly speaks with one voice.
A “unanimous” vote is reflective of total consensus but is not compulsory even for the passage of an amendment to the Constitution. Democracy rests on two principles: a majority vote in ordinary law-making and a two-thirds majority vote for amending the Constitution. The prime minister’s desire for a unanimous vote may therefore be more a hortatory gesture to show “national consensus” than an insistence on the letter of the law. But is he speaking on the basis of his confidence that the PMLN will not be able to muster a simple majority vote unless the PPP and its allies join it?
That is where the case actually rests: the PMLN cannot muster a majority in the house unless the PPP votes along with it. What is more, the resolution cannot go through even if the PPP allies break away and want to vote for it. Hence, the “right” of the PPP to demand a unanimous vote. Once that is recognised as a fact, other actions become irrelevant, like where the case against Mr Musharraf will be filed. Under Article 6 of the Constitution, the High Treason Act (Punishment) 1973 and a subsequent Act of 1976, do not indicate the forum of indictment although the state minister for law has allegedly said that the case could be filed at a sessions court.
The rest, however, is politics. The PMLN wants revenge, and a powerful section of the media by and large endorses it. The PPP, accused of being “an extension of Musharraf rule” by people moved by the human instinct of getting even, is reluctant to proceed to trial for very pragmatic reasons. The November 2007 emergency order of General Musharraf names some people as “consultees”, and among them are also the officers in the military high command, including the current army chief. The rumour is that the army has communicated its view about any trial of General Musharraf to the Supreme Court through a leader of the lawyers’ movement.
The shout for “accountability” has gone up once again although it is accountability — or “ehtesaab” — in the conduct of which the nation has most defamed itself in the past. Both the PPP and the PMLN have tasted the fruits of it and President Zardari has tasted them for eight and a half years. When Ms Benazir Bhutto was alive, both parties, having practically exiled their leaders through “accountability”, had publicly regretted that they had unfairly targeted each other. No “accountability” of the past has been regarded as anything other than a disguised act of revenge-seeking. This time it is death that is being demanded.
As for Chaudhry Nisar Ali Khan’s fiery advocacy in the National Assembly, there is some moral accountability waiting for him too. The ex-finance and foreign minister of the PMLN, Mr Sartaj Aziz, in his latest book Between Dreams and Realities: Some Milestones in Pakistan’s History, writes: “In my view, the most serious of [the] mistakes was Nawaz Sharif’s decision to remove General Jehangir Karamat as chief of army staff in October 1998...I was almost certain the position would go to General Ali Kuli Khan, the chief of general staff and a very competent officer, next in seniority to General Jehangir Karamat. But Nawaz Sharif decided, in consultation with Shahbaz Sharif and Chaudhry Nisar Ali Khan, to appoint General Pervez Musharraf as the next army chief”. (p.201) *

http://www.thedailytimes.com.pk

 

[moha199]

Nice artical

 

[fatman17]

Editorial: Punishing Musharraf

What is going on? First, we heard Barrister Aitzaz Ahsan airing the view that the National Assembly did not have to pass a resolution to arraign General Pervez Musharraf (Retd) for treason under Article 6 of the Constitution. Now the PML chief, Mr Nawaz Sharif, says he is surprised at “Prime Minister Yousaf Raza Gilani’s statement linking former president Pervez Musharraf’s trial to a unanimous resolution by the National Assembly”. He too says the government doesn’t need to go to the parliament on the issue and can start the process itself.

Mr Sharif obviously senses that opinion against General Musharraf is in the process of being consolidated by a section of the media and the lawyers’ movement. So he has decided to cash in and remind us that “the former dictator committed the crime of abrogating the Constitution in front of the whole world and 160 million people of the country”. Knowing that the PPP will be seen in a bad light if it is exposed as siding with General Musharraf, he has added: “conditionalities being attached by the incumbent rulers to the trial of Musharraf give an impression as if they are protecting him”.

Then comes the threat: “Otherwise, the masses can force the government to make decisions according to their whims as they played their role for the restoration of the judiciary”. Is Mr Sharif thinking of another Long March? In the same breath, however, he swears that he doesn’t want to destabilise and oust the PPP government. The Long March that he led up to Gujranwala and got Chief Justice Chaudhry restored would have ended in a zero-sum choice for the PPP government: it would have been “either Zardari or Nawaz” had the protest continued and entered Islamabad. Also, we should not forget that without the intervention of the army chief and America, there would have been no restoration of the judges.

Mr Sharif wants the Constitution to be upheld. That is all very well. But his record on this front isn’t too good. So we are entitled to be cynical. Also, we clearly note the instinct for revenge in this case. Among the media and the lawyers there are a lot of individuals who want revenge for the harm or hurt caused to them or to their interests by General Musharraf. Therefore their emotion-packed opinion betrays the instinct that nullifies justice. That is how the stage is now set: all the judges who might conceivably have been free of revenge are out of the higher judiciary; and those who occupy the benches are partisan, some of them have spoken indiscreetly in public to prove their partisanship! Meanwhile, the world is watching this and framing it in the context of the past paroxysms of accountability suffered by the country.

Journalists who should be writing objectively are waxing passionate. One paper decided to publish some intense outpourings of its chief reporter who recommends collective expressions of “hatred” on an annual basis as the foundation of his argument.

The act of abhorrence may in fact be committed by those who want revenge by divorcing the process of accountability from objective conditions, the context of the past, and point of law. Therefore it is up to the incumbent government to take the step. If it wants a unanimous resolution, it is not against the law. It has done so on past occasions to take the general pulse into confidence on political decisions, as for example both in supporting a peace deal with the Taliban and then approving military action against them.

The instinct for revenge has foreshortened the past. What about the period when General Musharraf was “covered” by the judges and given the right to rule? So when you say he is a “usurper”, you are also arraigning the judges, including the present chief justice of the Supreme Court, who validated him, and the parliament which passed the 17th Amendment. The government is the only party that can bring the case against General Musharraf and it is clearly faced with problems of “objective reality”.

The Emergency order of General Musharraf, which is being made the grounds for his trial, was issued after consultations with “the Prime Minister, Governors of all four Provinces, and Chairman Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice-Chief of Army Staff and Corps Commanders of the Pakistan Army”.

General Musharraf was no General Pinochet either, simply because Pakistan’s circumstances are different; and General Musharraf was not seen by the world as a murderous despot. In fact, he was seen to be “correcting” some excesses of the earlier government, now recognised by the Charter of Democracy, in the shape of acceptance of joint electorates and women’s seats. Even so, General Pinochet’s passage has left Chile divided, not united. On the other hand, South Africa, by embracing “reconciliation” and forgiving apartheid and its crimes, has prospered.

http://www.thedailytimes.com.pk

 

[fatman17]

suggest to admis/mods to make this into a stickey and merge all musharraf threads as this is going to go on for a while!

 

[fatman17]

Grant arrives to build bridges between Zardari, Sharif and Kayani

ISLAMABAD: Former British high commissioner to Pakistan, Mark Lyall Grant arrived on Sunday to try and build bridges between President Asif Ali Zardari, Pakistan Muslim League-Nawaz (PML-N) chief Nawaz Sharif and Chief of Army Staff General Ashfaq Pervaiz Kayani, since the Army is likely to object to former president Pervez Musharraf’s trial.

Diplomatic sources said Grant would meet the leaders of the Pakistan People’s Party (PPP) and the PML-N to discuss the political situation in the country.

He will try to convince the two parties to avoid political bickering on petty issues and work in unison for the stability of the country’s political system, they said.

The sources said the former envoy would also try to get an assurance from the leadership of the PPP and the PML-N to avoid prosecuting Musharraf as it would embarrass the UK and the US, who had both been strong supporters of the former army chief.

sajjad malik

 

[SSGPA1]

Nawaz Sharif is blinded by his ego and revenge ... lets try Gen. Zia and his supporters before Gen. Musharraf and his supporters.

I don't know who is advising NS on using Article 6 because Article 6 clause 2 is for NS himself.

PML-N has full control over Punjab govt. and instead of resolving issues concerning day to day lives of people, NS is pushing Pakistan to more chaos.

 

[fatman17]

ANALYSIS: Trying Musharraf —Ijaz Hussain

It is true that in traditional international law, a head of state enjoyed immunity from prosecution for acts that he or she committed during his or her rule. However, the law on the subject has undergone a sea change in recent years

If former General-President Pervez Musharraf thinks he can escape retribution for the human rights abuses he committed during his nine years of absolute rule by hiding in the United Kingdom, then he is sadly mistaken: his tormentors appear determined to pursue him there.

Lord Nazir Ahmed, a British peer of Pakistani origin, is planning to bring a case against him for “war crimes” on account of those abuses. He has revealed that a number of families who had suffered at Musharraf’s hands have approached him for the purpose. According to him, these families suffered directly as a result of his policies towards FATA, Balochistan, Waziristan and Lal Masjid.

Backed by a “victim support group”, Lord Nazir plans to sue Musharraf at the World Court or in British courts. Given the fact that under international law, heads of State enjoy immunity from prosecution for acts committed during their rule and that the crimes of which Musharraf is accused were mostly committed against Pakistani nationals, can foreign courts try him?

At the outset, two clarifications are in order. First, Lord Nazir cannot sue Musharraf for “war crimes” (which relate to violations of laws or customs of war such as ill-treatment of civilian population of any occupied territory or ill-treatment of prisoners of war) because he has not violated them. He can however prosecute the latter for human rights abuses which he committed in violation of domestic or international laws.

Secondly, he cannot sue Musharraf at the World Court because individuals on their own are not entitled to seize it. Only states can do it on behalf of their citizens. He also cannot do so because the Statute of the World Court does not permit an individual or a group of individuals to bring a suit against another individual (or a group of individuals) which appears to be the case in the present situation.

Can the British courts try Musharraf? That depends on whether they can establish their jurisdiction. It is true that in traditional international law, a head of state enjoyed immunity from prosecution for acts that he or she committed during his or her rule. However, the law on the subject has undergone a sea change in recent years. He or she can no longer claim immunity in cases relating to human rights abuses. The case of former Chilean dictator Augusto Pinochet who was accused of numerous cases of torture (The Retting Report found his government responsible for the death of at least 2,279 persons and the Valech Report for the torture of at least 30,000 persons is relevant here.) The Spanish government sought his extradition for alleged authorisation of torture of 79 Spanish citizens by him between 1973 and 1983. He was arrested in 1998 under an international arrest warrant in the UK where he had gone for medical treatment and placed under house arrest.

Pinochet’s attorneys pleaded immunity from prosecution on the ground that he was a former head of state and that Chilean law provided him immunity. There was a hard fought court battle lasting sixteen months at the end of which the House of Lords rejected the immunity plea on the ground that it was not available in international crimes such as torture. It also invoked the principle of universal jurisdiction to try Pinochet for his extradition to Spain.

Subsequently, the International Tribunal for former Yugoslavia used the same principle to try the former Serbian dictator Slobodan Milosevic for crimes against humanity. It is noteworthy that scholars consider the emergence of this principle as the most significant development since the decision in the Nuremberg trials; more significant than the decision in the Noriega case where the US federal court refused to grant immunity and asserted its jurisdiction on the ground that smuggling of drugs by Noriega was not connected with the business of the state and that the crime took place on US territory.

It is undeniable that British courts can invoke this principle in Musharraf’s case as well. The fact that Pakistan’s National Assembly has not accorded indemnity to Musharraf for the wrongs that he committed during his rule may also be handy in this regard. There is plenty of evidence against Musharraf for human rights abuses, particularly the confession that he made in his autobiography that he sold Pakistanis to the US in exchange for dollars.

There is a strong prima facie case against him. However, its success will depend on the quality of evidence presented before the court and how it is argued. It is noteworthy that whereas in the Pinochet case the court adjudicated on the latter’s extradition and his trial for torture was left to Spanish courts, here its task will be to try Musharraf for human rights abuses. In this regard, the fact that Musharraf handed over British nationals of Pakistan origin picked up from Pakistan will help British courts in sentencing him.

What will be the attitude of the British government towards the case? Will it be helpful or obstructive? A study of its attitude towards the Pinochet case may be quite instructive in this regard. Since British courts are free, it could not influence them. However, given the services that Pinochet had rendered against communism, Jack Straw, the Home Secretary, let him go on the ground of his supposed fragile health. In the present situation also, the British government cannot influence courts. However, given the services that Musharraf rendered in the “war against terror” and the immunity from adverse action that he enjoys as a result of the international deal that he struck, the British government is likely to find ways and means to help him escape justice as it did in the case of Pinochet. Incidentally, it is already providing him security which no former head of state or government currently residing in the UK or even living former British prime minister enjoys.

Finally, the question arises whether or not Lord Nazir is justified in going after Musharraf. This question is pertinent because a controversy is currently raging here: whether or not Musharraf should be tried for high treason. According to a recent Gallup poll, 70 percent of Pakistanis want him to be tried and awarded a severe punishment. A minority of people however do not favour such a course of action. They think that it is time to move on and focus on burning issues such as terrorism, the economy and governance which confront us today rather than complicate things by resurrecting the sordid past. They also allege that those who are seeking Musharraf’s trial are imbued with a spirit of vendetta against Musharraf. Finally, they hold that Musharraf’s trial will not go down well with the army, resulting in negative consequences for democracy.

These arguments are no more than rationalisations. Their acceptance means that we would have accountability of military dictators only when the cows come home. Let us not forget that those who oppose Musharraf’s trial are the same people who opposed the restoration of CJ Iftikhar Chaudhry and wanted Musharraf to continue as President. They are averse to change and want the status quo to continue. It is true that Musharraf’s conviction will not eliminate Bonapartist tendencies in the army as repeated army interventions is a complex phenomenon and much needs to be done to stop them.

However, Musharraf’s conviction will be a first major step in that direction. Since it is highly unlikely that the ruling coalition in Pakistan will put Musharraf on trial, we should welcome Lord Nazir’s attempt to prosecute Musharraf in British courts and that includes “political realists” as well.

The writer as an Adjunct Professor in the National Institute of Pakistan Studies at the Quaid-e Azam University, Islamabad. He can be reached at hussain_ijaz@hotmail.com

 

[fatman17]

COMMENT: Crossing a milestone —Shaukat Qadir

Political rhetoric aside, I don’t think anyone really wants to indict Musharraf. It will be supremely ironic if parliament now grants Musharraf indemnity by not indicting him

The 31st of July, 2009, was not just any Friday: on this day, the Supreme Court of Pakistan delivered a landmark judgement on the actions taken by General-President Pervez Musharraf on, before and after November 3, 2007, which related to changes in the Constitution brought about through the issuance of PCOs, as unconstitutional and invalid. The judgement has been widely hailed as a victory of democracy, and is being interpreted to mean different things by different people, according to their individual inclinations.

Ejaz Haider was absolutely right when he commented in a recent article that in any country with democratic traditions, this would be nothing remarkable, but then we are not living in an ordinary country.

To briefly recall Musharraf’s shenanigans of November 3, 2007: having lost the battle in his self-created judicial crisis, when he attempted to sack the chief justice, he decided to regain his waning power in one fell swoop. On November 3, 2007, in his capacity as chief of the army staff, Musharraf declared an emergency and issued a PCO, requiring all judges to take fresh oath or be sacked. Further, he granted himself indemnity for all subsequent actions that he took in his capacity as president. A farcical comedy, had it not been so tragic!

That his actions were malafide, unconstitutional and illegal goes without saying. Nonetheless, as expected, the chief justice appointed under the PCO legitimised Musharraf’s farce under the usual and hackneyed Doctrine of Necessity. The July 31, 2009 decision declared this court unconstitutional, and thus its decision invalid.

There is far more to this decision than meets the eye. The issue before the court was fraught with politico-legal complications and pitfalls. I must admit that I cannot but appreciate how adroitly the court has avoided these; and how carefully it has avoided getting involved in political issues, so as not to be sullied. In its own way, this historic judgement is no less bound by the ‘doctrine of necessity’ than the many previous and infamous ones have been.

While setting aside a number of Musharraf decisions, before and after November 3, 2007, the court has ruled that these, including the infamous NRO, will be deemed to have come into effect as of July 31, 2009 for a duration of ninety days, during which parliament will either enact them into law, or not, or simply allow them to lapse by failing to do anything. Further, the judgement says that the decision to try Musharraf for treason rests with the parliament.

What does this mean?

To our Advocate General, it means that “simple majority in parliament is sufficient for Musharraf’s trial”; to our prime minister, it “signals the end of dictatorship”; though that conclusion is certainly moot. However, I wonder whose dictatorship he is referring to, since it could well refer to Zardari’s dictatorship as well!

To me, it means, first and foremost, that the ball is now firmly in parliament’s court. While Musharraf must be concerned, I wonder if he is conscious of the irony that this judgement has ensured that, whatever parliament decides, the days of blaming Musharraf for everything will become a thing of the past!

It will be parliament that will decide whether to enact the NRO or not. In either eventuality, there are bound to be repercussions. If parliament decides to enact the NRO, it will be parliament that has granted selective amnesty to the hundreds of beneficiaries of this ordinance, not Musharraf. In fact, by doing so, not only will the PPP-led government find its face covered with egg, it will exonerate Musharraf.

If they decide not to enact the NRO, what will be the fate of the hundreds of beneficiaries, many of them in exalted positions, including no less a personage than our worthy president? And let us not forget that among the beneficiaries are many senior members of the MQM.

Even if the government decides to accept the egg on its face, can it find the numbers to turn the NRO into law?

The PMLN has been baying for Musharraf’s blood. Its leadership was hoping that the Supreme Court would go a yard or two further and declare Musharraf’s acts treason. However, while declaring his acts unconstitutional, the SC has shifted the burden of indicting the ex-president or granting him indemnity by not doing so to parliament; an unexpected, but wise and constitutionally sound decision. Even while hailing the SC decision, the PMLN has suddenly gone silent on the issue of Musharraf’s trial. Obviously, it will open another Pandora’s Box, with most uncomfortable repercussions for both main parties.

Once again, it will be parliament that will decide whether to indict him or not. If parliament enacts the NRO, it will have no moral standing to indict Musharraf — you can’t benefit from one of his most controversial acts on the one hand and indict him for others.

Political rhetoric aside, I don’t think anyone really wants to indict Musharraf. It will be supremely ironic if parliament now grants Musharraf indemnity by not indicting him. I don’t know if the CJ enjoyed passing this judgement, conscious of the ensuing discomfiture to parliament and the politicians. I enjoyed reading it!

This article is a modified version of one originally written for the daily ‘National’. The writer is a former vice president and founder of the Islamabad Policy Research Insititute (IPRI)