Accountability and equality before law

The government and some political leaders have advanced a number of different arguments against holding Pakistan’s former dictator accountable for his actions in a court of law. Some of these arguments are based on moral considerations while others are premised on expediency and pragmatism. One needs to look critically at the reasons provided for ‘safe or honourable exit’ and ‘indemnity’ to evaluate their merits and demerits. The following are some of the most common reasons offered against a trial in a court of law: 1) No dictator in the past has been punished or held accountable even when an elected civilian prime minister was hanged; 2) The government does not want to engage in the politics of revenge; 3) The nation has already undergone an agonising period of turmoil and tribulation and should be spared the prolonged tumult of a trial; 4) A trial is likely to bring up the names of senior civil and military personnel and politicians who were complicit in the actions; 5) Saudi Arabia, a brotherly country, would be annoyed and may block its sorely-needed facility of deferred oil payments to the tune of 5.9 billion dollars; 6) The US would be displeased and may withhold the promised aid of billions of dollars needed by a cash-strapped and beleaguered government for balance of payment support and development. Let us take each rationale one by one.Firstly, the fact that no dictator to date has been held accountable should not deter a nation from finally doing the right thing. It is precisely because as a nation we failed to bring violators of the constitution to justice that the sacred contract was violated repeatedly with impunity. If we had not spared the first dictator, we may never have had subsequent ones. It is time now to set a precedent of answerability to prevent future adventurism and takeovers. It is illogical to argue that since we kept doing the wrong thing in the past, we should never change course and do the right thing. If we do not diverge from past practices and continue to forgive and forget in the name of ‘national reconciliation’ we will reconcile forever with dictatorships. Second, the invocation of the notion of revenge is completely misplaced in the context of crimes committed at the national level. The idea of revenge is personalised and refers to the actions of an individual or a group of individuals who take the law into their own hands and commit violence in response to aggression or injustice against them. Revenge is considered a primitive concept that is associated with less evolved societies where overarching modern state systems are not developed. It has been replaced by notions of retribution, rectification and punishment that is commensurate with the crime. In contemporary times the state, as the embodiment of the collective will, takes cognizance of crimes and punishes a culprit in accordance with agreed upon principles of justice in proportion to the crime committed. The idea is to establish the writ of state and uphold the rule of law, especially the principle that no individual is above the law. This kind of accountability by the public is far from the notion of personalised revenge and is necessary for the reiteration of the consensual rules that order collective existence.Thirdly, the argument that our nation has already suffered enormous political, moral, legal and social upheaval and may not be able to withstand the turbulence of a trial is flawed because it aims to protect the guilty from accountability by absolving them from being responsible for the turmoil and mayhem. It is not the process of accountability that would lead to unrest and agony. Rather, the actions of the dictator in the ruthless violations of the rule of law, the merciless killing of dissenting citizens, the callous sale of citizens in return for money, the unprincipled selling off of national assets and the decimating of vital national institutions, have caused intense mental anguish and sorrow among citizens. The process of a fair and just trial would not only lead to the ‘ritual cleansing and healing’ of the wounds inflicted upon the nation, it would also allow the world, and the dictator himself, to witness the operation of civilised law rather than the law of the jungle that we observed in the last few years. The fear that the trial would inevitably bring up the names of many closeted ‘dictators’ who aided and abetted the leading one is ill-founded. It would be a greatly healing exercise if not only the main culprit but all the accomplices, including civil and military officers and politicians involved in sustaining, aiding, misguiding, reinforcing and justifying the illegal actions were to be exposed. This would not only establish the fairness of the trial, it would also purge the system of the rot that has set in over years of authoritarian rule. Fifth, the fear that Saudi Arabia, a country that seems to provide safety shelters to our beleaguered and tormented leaders, would be incensed is a pragmatic one. With our economy in tatters and hugely dependent on Saudi Arabian oil on deferred payments, we can hardly afford to annoy this benefactor. However, ‘friendly countries’ are increasingly realising that instead of befriending only dictators and single individuals, they need to express their solidarity towards the people of this country. It would be too much to hope for human rights considerations from a country that is still a monarchy and where the population does not have the most basic right to choose its own government. The notions of due process, justice, equality before law and accountability of the powerful are alien to its anachronistic political system.Finally, there are calls from the United States to spare the dictator and billions of dollars are being dangled in front of the elected government to induce it to let the culprit off the hook. The government needs this money to plug a massive deficit created by profligacy of the previous dispensation (the foreign trips, the lavish lifestyles of the rulers). We may not be able to withstand the pressure exerted by the US because of our chronic dependence on it for our military and non-military needs. However, it is pertinent to mention that the US also has an extremely questionable human rights record. Even before 9/11 the record was not exactly one to be proud of, but after 9/11 the US administration descended into the worst depths of depraved and morally reprehensible acts. The current US administration in particular has a seriously blemished record with Guantanamo Bay, Abu Ghraib and the genocide of millions in Iraq and Afghanistan. One can hardly imagine that such a government would have any moral qualms about letting their favourite dictator go scot-free. Our benefactors are thus not ones who would press us for rule of law, due process, justice and fair play. The deafening noises about ‘good governance’, accountability, transparency and rule of law that have made by international donors since the dawn of the new millennium, ring hollow in the face of their efforts to scuttle these norms and principles in our blighted land. The double standards and hypocrisy of our foreign ‘friends’ are only too visible for us to imagine that they would recommend the trial of our tormentors.It needs to be reiterated, and this cannot be emphasised enough, that if the nation ever decides to put our rulers on trial, it should be a completely fair one. Their right to defend themselves must be upheld despite the fact that they never allowed this right to others. The government would need to keep the moral high ground and not fall to the same level as the ones accused. For obvious reasons, none of the deposed judges, or those favoured by the rulers, should be involved in the trial. As the old maxim goes, justice must not only be done, but should be seen to be done. It is only by taking the powerful to trial that the government would be able to establish its writ and the rule of law. If the government foregoes this necessary process of purging and cleansing, then it will not have the justification for bringing others, for example the militants, and ordinary citizens to justice. The law must apply equally to all, or else the very reason for having law and the constitution would evaporate.by Dr Rubina Saigol