The judiciary-military nexus - II

Daily: Pakistan Today
Date: 23.08.17

The first part of the Panama case judgement issued on April 20 opened with a quote from
the Godfather: “Behind every great fortune there is a crime.” Later on, it was told that this
statement descended into the dissenting note of the judgment. The quote simply means
that fortune is a crime. In other words, all wealthy people are criminals: all poor people are
honest. Indeed, the quote opens a new simplistic understanding of the world.

Interestingly, the defenders of the April 20 version of the judgement argue that, in the US, a
judge can give such a remark and hence is the justification of its permissibility in Pakistan.
Unfortunately, this lot of savants overlook two important points. First, in today’s rational
understanding of things, teachers advise their students to avoid making sweeping
statements. A statement sweeping in nature defies the probability factor. Pakistan’s
universities do not vigorously teach (nor students avidly learn) the topic of probability. The
students who remain bereft of its understanding – and these are mostly arts students – are
likely to remain averse to (and ignorant of) it for the rest of their professional careers.
Making a judgement without valuing probability is a blight Pakistan’s institutions are plagued
with. Second, if the examples of giving remarks are imported from US’ judicial practices,
other practices established in the US also deserve to be imported. For instance, the
principle of sovereignty stated in the preamble of the US Constitution says: “We the people
…do ordain and establish this constitution for United States of America.” That is, it is “the
people” who “ordain and establish” the constitution. Here, the power underlying “the
people” is stronger than the power underlying any other institution of the state. To extend
the argument further, the SC in the US is given only that much operational space which is
ordained by the people, and not which is hogged by the SC. This is how the presence of
the adjunct “supreme” fails to make the SC supreme. The point is simple: whereas the
constitution mandated Justice Asif Saeed Khosa to pronounce his judgement, the
constitution did not mandate him to ridicule voters – “the people” – by issuing such a
remark against their representative. Justice Khosa could punish a culprit but he could not
deride the culprit. Retraction of the remark is the need of the hour.

In the Constitution of Pakistan, Articles 62 and 63 are great articles offering the proverbial
Damocles’ sword hanging over the necks of legislators. The articles make it mandatory for
a legislator to be “Sadiq” and “Ameen.” However, the July 28 version of the judgement has
darkened the future of the sword by misapplying it in two ways. First, Article 184 (3) was
used to invoke Articles 63 and 64 despite the fact that the SC knew that Article 184 (3),
defining the original jurisdiction of the SC, would leave no option for an appeal against the
judgement, thereby undermining the right of fair trial. Secondly, when applied, Articles 62
and 63 were applied on flimsy refutable grounds, which have invited more ridicule than
respect.

In a way, the July 28 judgement has shortened the life or effect of Articles 62 and 63. If the
SC had applied these articles based on solid, irrefutable proof to disqualify Nawaz Sharif,
“the people” (or the voters) might have stood by the SC. However, by misusing the articles,
the SC has weakened the resolve of those who wanted to see the articles remain enshrined
in the constitution. The ultimate sufferers will be the voters. That is, the dubious grounds to
apply these articles have made the case stronger against the articles instead of against the
legislators.

Many in Pakistan have so far failed to understand a trend. There are appearing defence
analysts – who are mostly retired brigadier, generals and air marshals – regularly and daily
on various TV talk shows doing two things since July 28 unanimously. First, defending the
July 28 judgement and appreciating the SC. Second, condemning the GT Road rally of
Nawaz Sharif and declaring it an act against the state institutions. Interestingly, the holes in
the judgement are visible to everyone except these defence analysts. Similarly, the passion
of the followers of voters of PML-N was palpable to everyone except these defence
analysts. In their rank have entered certain TV anchors who pronounce that the GT Road
followers of Nawaz Sharif were lowly educated and stupid.

General (retired) Pervez Musharraf is now known for amassing wealth by delivering lectures
at various institutes of the world. Pakistani are still deprived of his prodigy. On 19
December 2016, through being interviewed on a talk show, the genius of General
Musharraf revealed to Pakistanis that his rescue from a hospital in Karachi to avert the
shackle of Article 6 took place because of the favour extended by the then Chief of Army
Staff General Raheel Sharif. General Musharraf said that “he (General Raheel Sharif)
helped me out… and I am grateful to him”. For the favour extended, General Musharraf
gave two reasons: First, “I have been his boss”, and “I have been the army chief before
him.” Secondly, he revealed that the mode adopted was by “influencing the courts.” That is,
General Musharraf laid it bare that Pakistani courts were amenable to back stage
maneouvring. “These courts work under pressure behind the scenes and then give
decisions… The army chief had a role to play in releasing the pressure behind the scenes,
” General Musharraf said, besides giving a justification that the cases were politicized and
that was why the government put him on the ECL. Instead, General Musharraf was booked
and charged with high treason by a special court in March 2014 for abrogating the
Constitution of Pakistan on November 3, 2007. He used a medical certificate to preclude
the enforcement of Article 6 and fled for Dubai in March 2016.

On this publicly confessional statement of General Musharraf, all defence analysts are
silent. No defence analyst demands the retrieval (or extradition) of Musharraf for the
continuation of his pending trial under Article 6. In short, in addition to the circumstantial
evidence engendered by defence analysts, General Musharraf is clearly saying that a
nexus between the judiciary and the military exists.

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