The Rule of Law

Publisher and Managing Editor IKRAM SEHGAL wrote an article entitled THE RULE OF LAW for THE NATION which DJ is re-producing with thanks.

What separates society from the jungle is that civilization requires adherence to the rule of law. There is a general perception that the arbitrary nature of military rule is on a fine line between civilized society and the laws of the jungle, this perception is patently false, true only when individuals in the military hierarchy bend the rules to suit vested interest. Former PM Mian Nawaz Sharif could well have been dealt with summarily in a military court for his civilian coup on Oct. 12, 1999 but the successful counter-coup followed a route different to that of any known previous military rule.  Press freedom and the noticeable absence of military courts has in fact set a dangerous precedent, men in uniform in Third World countries with endemic bad governance may be encouraged to apply the nouveau Musharraf-formula for this different type of martial law. A trial before the Anti-Terrorist Court (ATC) was always a gamble for the military regime, in hindsight it was a risk well taken.  Finding him guilty on two out of four counts, namely hijacking and terrorism, Judge Jafferi convicted the former PM with two life sentences, six other co-accused were found “not guilty” on all the charges. Pakistanis and foreigners alike breathed a deep sigh of relief, a death sentence could have set off protests based not on the merits of the sentence as equated to the crime but on political and constitutional precedents past and for the future. The Presiding Judge was quite Solomonic in conducting a “fair and transparent trial”, accepted as such by friend and foe alike except perhaps the immediate family and close friends. The former PM could well have been awarded the maximum allowable under law but the good judge adjudged his actions were taken “in a fit of passion”.  Exonerating him on all counts would have knocked the prop from under the raison d’etre of the present rule, leaving no fallback option except one, thankfully that extreme did not come to pass.

Serving on the US Supreme Court from 1902 to 1934, Justice Oliver Wendell Holmes Jr. is considered as one of the greatest jurists of all times. He annunciated the concept of “clear and present danger”, the example of a man in a movie theatre who stands up suddenly and without any reason shouts “fire, fire”, thereby setting off a stampede for the exits in which many die or are injured.  By trying to unseat a COAS while he was on a foreign trip, Mian Nawaz Sharif became that “man in the movie theatre”, setting off events that included endangering besides the COAS and his wife, the crew and the passengers, unwitting innocents in the Machiavellian drama being staged in (and around) the PM’s House in Islamabad on the afternoon of Oct. 12.

In searching for the lowest common denominator for a pliable COAS, Mian Nawaz Sharif chose Lt. Gen Ziauddin, a first for an officer of the Engineer Corps, conceded to be a fighting arm in the Pakistan Army as much as Infantry, Armour and Artillery. Ziauddin showed his true mettle by holing up in the PM’s House instead of going straight to GHQ and trying to take over as any soldier worth his salt would have.  In remaining virtually in hiding from the very troops he was supposed to lead as the new COAS, Ziauddin failed the acid test of leadership, the ability to motivate from the front in a moment of crisis. One has to grant Gen. Pervez Musharraf that even during his absence (and brief sacking as COAS) his troops stayed loyal to him. Ziauddin’s failure to appear at the gate of the PM’s House had one great silver lining, it averted a possible civil war.  Even one bullet fired inadvertently, the circumstances and the occasion being fluid enough for that, the confusion could have possibly set off a bloodbath.  About 30 years or so ago, an officer aggrieved on a personal matter took six shots at a superior in his suite in the Quetta Club, delivering only a slight wound off a ricochet from a doorknob.  While legal experts were busy contemplating various sections of the Pakistan Army Act (PAA), the irreverent doing the OWJTC (Officers Weapon and Junior Tactical Course) in the Infantry School suggested, tongue-in-cheek, that he be tried under the all-pervasive PAA Sec 55 - “conduct prejudicial to good order and military discipline in that he being in the Pakistan Army was a bad shot”. On that analogy Ziauddin could find himself facing “conduct unbecoming an officer in not having the guts to face the troops he was supposed to command”.

Mian Nawaz Sharif was not a reading man nor did he particularly like newspapers, otherwise he would have read my advice in “POWER PLAY” in THE NATION on Oct 17, 1998, a full year before Oct 12, 1999, to quote  “Mian Nawaz Sharif has moved Lt. Gen. Ziauddin, formerly Engineer Corps, using his prerogative as PM, to the sensitive post of DG ISI.  The rest of the Army belongs to the COAS and it is his (and only his) prerogative to shuffle his commanders in the best interest of the Service rather than at any bidding from outside.  Professional soldiers do not take kindly to any outside interference, political or otherwise.  The present COAS has a reputation as a thinking professional, extremely sensitive to the fundamental perquisites of the uniform, which is duty to the nation and the Army, in that order, to the exclusion of everything else.  The nation is faced with grave external and internal dangers.  For the first time after 1971, the Armed Forces have their work cut out on two fronts. They have to be left alone to perform their professional duties.  So instead of speculation in the media or the rumour machine, we should leave the Army alone.  A power play did take place on Oct 7, 1998 and even though Mian Nawaz Sharif seems to have come out ahead, he should thank his lucky stars he had Gen. Jehangir Karamat to contend with, a mild man with a gentlemanly demeanour, known not only for his superior intellect but a firm commitment to democracy.  If the inclination of the politicians to indulge in power play in the uniformed ranks persists, the PM may well have sufficient cause to remember JK with a lot of nostalgia, sooner rather than later” unquote. Two days before Oct 12, 1999 in a News Analysis in THE NATION on “THE ARMY AND DISCIPLINE”, I wrote “Gen Musharraf happens to be the Chief of Army Staff and thus is the symbol of the institution. In the end the institution is always more important than individuals and their grievances, legitimate or not. As such, we have to support Musharraf in maintaining the strong discipline that keeps the Pakistan Army the ultimate guardian of the country’s integrity and sovereignty. This country is passing through bad times and we cannot afford a difference of opinion amongst the senior military hierarchy” unquote.

The best legal minds opine that Mian Nawaz Sharif’s sentence may well be reduced in the Sindh High Court on appeal. However, other than putting this country in “clear and present danger”, one shudders to think that his was the finger on the nuclear button, we were only a “fit of passion” away from a holocaust.  Whatever is the ultimate length of his prison sentence, Mian Nawaz Sharif faces a bleak future in the charges being framed by NAB for nepotism, corruption, transferring of wealth abroad etc. NAB has been given a free hand to pursue accountability, the evidence suggest that in many areas they will succeed but where connections influence proceedings, NAB will fail. The intricate nature of the Client-Patron relationship has ensured continuity by very visible corrupt holdovers from Nawaz Sharif occupying key positions in the present public structure.

Apprehensions that Pakistan’s image would suffer internationally because of the trial were unfounded. In the final analysis justice won out and protest remained either muted or motivated. In putting innocents at risk, the former PM fell decidedly afoul of the laws of the land, these cannot be violated even by the Head of a Government. Having established its credibility in ensuring the process strictly adhering to the norms of justice, the present regime will go a long way in restoring the credibility of the judiciary by letting the law take its course for the future.

The institutions of State have been badly eroded by years of politicization and abuse of power, confidence of the masses in their legitimacy can only be restored by applying the law equitably and dispassionately. The rule of law must prevail from the top of the hierarchy dawn to the junior-most individual, being transparent in application and the same for friend and foe alike.