Mush trial a Pandora box or an opportunity

By Barrister Amjad Malik

A silent soldier or a supporter of General Pervaiz Musharraf has forced me to write on the topic of his possible trial under article 6 of the 1973 constitution. In an ideal world a military dictator whose actions of 12 October 1999 were somewhat redeemed by the court of law and the legislators will leave his tenure on the historians whether ‘good’ or ‘bad’. But the Military dictator was pushed in the political arena, he left by voluntarily resigning and the rest is history. No matter how much good he mustered by keeping dollar price low or keeping his bosses happy, people did not forgive him for enslaving Pakistan to a proxy war, pardoning hardcore criminals through NRO and destroying the judiciary by provisional constitutional orders twice. On top of it, 3 of November 2007 emergency is a depiction of his peak fallacy that he is ‘all in all’ and the wisest. 31 July 2009 order of the Supreme Court in Sindh Bar Association petition is his ultimate reward of his misdeeds. Now the question is whether he should be tried for his misdeeds to send a message to stop it happening again in Pakistan. Question is, do we have the conducive environment where democracy is gaining roots.  Pakistani is discussing how to fit in the ongoing withdrawal of armed forces in the neighbouring country and post war syndrome & increasing radicalisation. People are engulfed still in issues like good governance, bad economy and energy crisis. Secondly, can we ensure a due process and fair trial to Gen. Musharraf as outlined in article 10A of the constitution of the 1973. Finally, have we got the infrastructure in place to secure such fair trial? Finally, If yes, where will the buck stop and who will bell the cat. Gen. Musharraf will try to involve any and everyone.

Prime Minister of Pakistan did well by giving a policy statement first in Parliament and then in court through Attorney General on Article 6 trial that order of the Supreme Court will be implemented in the letter and spirit. PM is right in taking parliament in confidence on matters pertaining to president, Chief Justice and chief of army staff and former dictator (Gen. Musharraf).In principle ensuing his trial is a good and symbolic gesture. It will be a good starter by framing a charge, and establishing the requisite court as outlined in the ‘high treason Act’. Charge must be framed by a Federal Govt appointed law officer. Later, time and thought must be given to prosecution & defence to prepare their side of cases so that institutional heads that may be victim (Iftikhar Chaudhary LJ) or part of dictator defence (Gen Kiyani current Army chief) are not on their seats to avoid allegations of any miscarriage and/or unsafe judgement. After December 2013 retired officers judicial or military can given evidence and can defend them in court if asked to submit depositions on subpoena. Charge itself is big achievement. If a trial starts , the demand of giving ‘due process’ and ‘fair trial’ to the alleged dictator will increase by national organisations and international community. If any incident like (DSP snatched hair of chief justice) happened that will be a devastating for newly attained civil superiority and democracy and will contribute to make a zero into a ‘hero’ only because of mal treatment. I believe in the principle that a king must treat his opponent as the King will be expected to do.

PM has done a great thing by stepping aside his law Minister who was part of dictatorial team at that time, but there is an endless list of people around who will need an axe if such a line is pursued. A calmer man on his position can be advantageous. There is a huge infrastructure flaw in the criminal justice scheme of Pakistan and it needs a revamp. Such flaw is because of a huge gap of communication and real separation and unity of command between investigators & prosecutors. The ratio of conviction of those tried even for terrorism is so low and alarming. Mechanism of Prosecution needs immediate attention and improvements. First of all Pakistan needs a prosecution set up independent of police which has its own provincial and national directorate, independent recruitment process and mentoring and monitoring procedure. Currently it’s too muddled. Party divisions affect its performance which must not compromise the overriding objective to promote rule of law, prosecute fairly and secure convictions. We need to have a ‘State Prosecution Service’ which ensures independent prosecution, keeps a check on criminal investigation and separate that of genuine crime fighting to that of abuse of process and faulty unsafe investigation(s) and takes forward cases if they have greater chances of securing convictions. Executive must understand the need to have a set up independent of the prosecutors and give wider checked powers to law enforcement specialist units which deals with special threats of terrorism and jointly assist each other in a coherent mechanism to avert attacks and God forbid if they happen, act quickly to arrest or chase those involved successfully. A specialist national security department and date collection centre is the need of the hour where military, police and executive presence is proportionate to the need and threat. Main purpose is that of realization of that threat and then to act jointly.

Even specialist anti terrorist court judges are confronted with the question of under training, over work and lack of security. Topping it all, witness protection is next to none. We also witnessed that in some cases accused of terrorism offences were snatched from police custody in a day light from the city court compound. Above all, like England and USA intelligence community’s high command is reluctant to share vital pieces of intelligence, informers report, sensitive tip offs in order to avoid compromise on their intelligence gathering mechanism due to the lack of trust on each other. Or shall I say they are aware of the pit falls of the bleak system in which they operate. Keeping in view of these issues what can we do to reform our existing system so that we can bring more prosecutions, double the rate of convictions and sentence freely those involved in heinous crimes as well as terrorism and reach to those masterminds who move their strings. Musharraf’s trial questions the capacity and prosperity of our existing system, and begs an overhaul of the system than an  experiment on him.

Coming back to General Musharraf’s trial, Prime Minister Nawaz Sharif has initiated a good thing in Baluchistan and he must extend that reconciliation to other parts of the country. As politicians, bureaucracy, military and judges are entering into a new era in Pakistan, South African style Truth and reconciliation commission can assist the govt to nip the evil in the bud, and walk out of this quagmire which due to weaker criminal justice system has inbuilt flaws questioning its capability to ensure a fair trial. If we move on to confrontation, we will end up splashing dirt on each other. No one is free of ‘allegation’ due to due to longer period of military dictatorship, everyone is maligned. So from Swiss accounts, to Asghar Khan case judgement, from taking PCO oath to extra judicial killing by law enforcement segments, and from coup de tat to civilian autocracy and fat cat bureaucracy all at sundry will be on the axe if we run a series of imperfect actions. Let’s move on, Pakistan needs a face that of Quaid e Azam Muahammad Ali Jinnah once had a vision, a tolerant, modern and progressive Pakistan. We could not save his residency in Ziarat, but we can save his resolve which is mirrored that of Pakistani nation which always give verdict supporting that of  rule of law, democracy, respect of ballot and tolerant face of Pakistan. Let’s not start a witch hunt which in the end smite our own land beneath our feet as we must admit, we so far cannot guarantee a trial to terrorists (that’s why many accused are either missing or detained in FATA region), let alone a fair trial to the man detained at his luxury palace at Chak Shehzad.  Let’s move on by initiating a symbolic action against him, and ending the chain of unconstitutional commands he once ordered. Democracy will be in the end the fate of Pakistani nation.

Fair trial is not a private property, it’s a myth. I opposed the dictator twice through petition(s) when he deposed Chief Justice and secondly when he sought membership of the parliament, but still State infrastructure is so weak that I feel reluctant to recommend that a challenge of ensuring ‘due process’ and a ‘fair trial’ must be accepted by the current Govt and or top judiciary. May be the label ‘Usurper’ as outlined in the SC judgement and a charge under Article 6 suffice to send a strong message and a deterrent to those who matter, and the best Nawaz Sharif can do is to appoint the chief of army staff as the relevant law officer to file such complaint to alienate a departmental support which once the dictator manipulated. If he does that, he will know the score whether trial will go to trial. He has already forgiven the ills he has done to him; it’s time to make him seek forgiveness from nation for his deeds. 

Barrister Amjad Malik is a Chair of the Association of Pakistani Lawyers (UK)

25 June 2013