Musharraf on trial
By Anwar Syed
Sunday, 23 Aug, 2009 (Dawn)

STRIDENT calls for Gen Pervez Musharraf’s trial under Article 6 of the constitution have of late been coming from various individuals and groups. But he is not without supporters.

The more prominent among them is PML-Q. Chaudhry Shujaat Hussain, its head, has recently declared that his party will oppose moves against him. The MQM has adopted a similar stance. The general has supporters even beyond these two parties.

Some other observers maintain that putting the general on trial would be a waste of time and effort, that it would be best to leave the past alone and attend to the tasks that must be done today. Still others ask why, if the past must be raked up, begin and end with Musharraf?

While this debate goes on in Pakistan, the general lives in London and goes out to various places to deliver lectures charging an enormous fee. He told a television interviewer that he intended to return to Pakistan after his speaking commitments and that he will face any trial that may be held against him. However, his future course of action is problematic at best.Prime Minister Yousuf Raza Gilani says his government will institute a case against the former president if parliament unanimously passes a resolution requiring such a move. This is his way of saying that he will not proceed against Musharraf: he knows fully well that no such resolution will be forthcoming since certain groups in parliament have already declared their opposition to the proposed trial.

Mr Nawaz Sharif, who is the most vociferous in demanding Musharraf’s trial, indicated his party would introduce the relevant resolution in parliament if the government doesn’t. Actually, as some observers have pointed out, no parliamentary resolution is necessary. The executive can proceed against Musharraf on its own authority. But, as noted above, the PPP government does not intend to make any such move.

Let us now see what Article 6 of the constitution is all about. It says anyone who abrogates or subverts the constitution is guilty of high treason. He who conspires with another to abrogate or subvert it or aids this other person’s act of abrogating or subverting it is likewise guilty of high treason.

Gen Musharraf set aside and then subverted the constitution on Oct 12, 1999 and Nov 3, 2007. On the first of these occasions he overthrew Nawaz Sharif’s government, alleging that the prime minister had attempted to hijack the aircraft that was bringing him back from Sri Lanka. The Supreme Court recently rejected this allegation, which is an indication that the general had already made plans to seize the government. This implies that in planning and executing this coup he had the concurrence of his corps commanders who could thus be looked upon as co-conspirators.

The Supreme Court validated his coup and later the National Assembly. All of them and hundreds of civil servants aided the implementation of his decisions and directives. Thus, all of them — generals, civil servants and legislators — invite the charge of high treason as prescribed in Article 6.

The security services chiefs were present in Gen Musharraf’s camp office when Justice Iftikhar Mohammad Chaudhry went to see him on March 9, 2007 when he was made non-functional. Perhaps they too could be seen as co-conspirators.

It may be assumed that Musharraf imposed a state of emergency on Nov 3, 2007 with the concurrence of other services’ personnel. This time again he subverted the constitution. So, in terms of Article 6, those who aided him too could be charged with high treason.

I do not remember demands for the trial of any of Gen Musharraf’s predecessors who abrogated, amended and subverted the constitution. Ziaul Haq died while he was still in office. There was some talk of trying Yahya Khan for his role in the dismemberment of Pakistan but not for his abrogation or subversion of the constitution. Ayub Khan resigned his office and went to live in his palatial home. Iskander Mirza was sent to London where he lived for the rest of his days, albeit in reduced circumstances. Ghulam Mohammad retired to his daughter’s home in Karachi. He had to go because he had become too sick to work.

One may say that if the right thing was not done in the past, that nonfeasance is not a good reason for neglecting it now. It should be noted, however, that in any society there are hundreds of right things that could possibly be done. They need not be done all at one time. They have to be prioritised on the basis of a cost-benefit analysis. Those found to be the most urgent might be undertaken here and now, while others wait.

It cannot be argued that Musharraf’s trial is one of the most urgent needs of Pakistan. Actually, it is dysfunctional. For if he is to be tried for abrogating and subverting the constitution, then his co-conspirators and collaborators must also be tried. That would be an extremely messy and destabilising exercise.

The advice of those who want to bury the past and mind the present merits serious consideration. Putting the former president of Pakistan on trial would be like opening a huge can of worms, which would spread and crawl all over the place, causing panic, confusion and chaos. Those who argue that Musharraf’s chastisement is necessary to deter other generals from overthrowing civilian governments are mistaken. Politically ambitious generals will move in to fill a vacuum of power if one has been created by the civilian regime’s infirmity, internal incoherence and inability to function effectively.

The writer is professor emeritus at the University of Massachusetts.

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