In the line of fire

The federal government’s decision to try former president and army chief Pervez Musharraf for subverting the constitution has given rise to both hopes and fears. The decision to initiate the trial, the first of its kind in Pakistan, is being widely seen as a message in so many words that abrogation or subversion of the basic law of the land will no more be tolerated. On the other hand, many apprehend that the proceedings against the retired general may unleash a series of events potentially fatal for the government or the democratic order. Someone is in the line of fire. But who?

The PPP government (2008-2013) bequeathed several severe problems to its successor, including those of a precarious security situation, a weak economy and the energy crisis. Of course, the PPP can claim that those problems were not of its making and that the party only inherited them like a Greek gift. The genesis of such problems apart, the PPP government also left its successor with two difficult decisions to make, each enormously significant. One was whether to go ahead with the Pak-Iran gas supply project, the other being the trial of General Musharraf under Article 6 of the constitution.

Musharraf stepped down from the office of the president in August 2008 and left the country in November that year. During those three months, he remained a free man. For a full five-year tenure of the PPP, he didn’t come back despite giving dates on more than one occasion. The common explanation for Musharraf’s continuing self-exile was that he wouldn’t return unless given iron-clad guarantees as to his freedom and security.

Musharraf’s decision to stay abroad made it easier for President Zardari and his party men to duck the demand for instituting his trial on treason charges, which only the federal government is entitled to do. The former president came back within a week of the expiry of the PPP government tenure as if he was waiting for it to happen. This suggests that more than the quest for the iron-clad guarantees, Musharraf’s decision to stay back can be put down to some understanding reached between the two sides. Their earlier understanding or deal had given birth to the National Reconciliation Ordinance, without which the PPP wouldn’t have landed in the corridors of power.

Musharraf has the dubious distinction of subverting the same constitution twice (October 1999 and November 2007). The second subversion was different from the first as well as earlier such successful attempts by his predecessors in at least three respects. One, the November 2007 proclamation of emergency was singular in describing judicial ‘interference’ in the affairs of the government as its raison d’etre. Two, the federal and provincial legislatures and the elected governments were not sacked; instead the axe fell on the judges. This is understandable as the challenge to the Musharraf regime emanated not from the politicians but from the members of the superior judiciary.

Three, neither the judiciary nor the parliament put its seal on the unconstitutional act; instead within hours of the November 2007 proclamation, the Supreme Court had declared the act null and void-although a ‘new’ apex court of Justice Dogar legitimised it. Subsequently, there was no constitutional amendment, like the 8th or the 17th to indemnify the subversion of the constitution. After the deposed judges had been reinstated, the Supreme Court in its July 2009 judgement (the Sindh High Court Bar Association case) declared the November 2007 proclamation unconstitutional and null and void ab initio.

In the wake of the apex court judgement, only two things were needed to try Musharraf: his presence in Pakistan so that he’s given a fair trial; and the decision by the federal government to institute treason proceedings against him under Article 6 of the constitution and the High Treason (Punishment) Act 1973. The first condition was satisfied with the ex-general’s return in March this year, while the second condition has been met with the announcement to this effect by the prime minister.

The issue at hand is not whether Musharraf subverted the constitution-this has already been settled in the Sindh High Court Bar Association case-but what would his trial entail and its political implications. A look at the text of Article 6 would make this clear. The article describes attempting or conspiring to abrogate, subvert, suspend or hold in abeyance the constitution as an act of high treason. Any person aiding or abetting or collaborating the aforementioned acts is also declared to be guilty of high treason. Through his emergency and making subsequent orders to give effect to the same, Musharraf upset the constitutional order and therefore subverted or suspended the constitution. By what about the persons who had aided and abetted or collaborated with him in this regard?

The word ‘collaborate’ as defined by the Webster’s Dictionary, means “to work with another person or group in order to achieve or do something.” Thus the question is: are the high officials – that may make up quite a long and distinguished list – who helped Musharraf in successfully subverting the constitution also guilty of high treason and thus open to trial under Article 6? Musharraf’s advocates answer the question in the affirmative and warn that the trial will open the proverbial Pandora’s box, the implications of which will be too serious to handle as some of these people are still holding critical positions. Worse, it’s feared, the highly respected institution of the armed forces may get dragged into the high treason proceedings as the retired general had acted in capacity of army chief.

How things will take shape in that event is anybody’s guess. But if it will be exceedingly difficult for the ex-general to validly claim that he had only acted on the advice of the people around him, it may not be that easy either for the latter to go scot-free.

Article 6 is an innovation of the 1973 constitution. The previous two constitutions, of 1956 and 1962, did not contain any such provision. Tormented by the memory of abrogation of the constitutions twice (in 1958 and 1969), the authors of the 1973 constitution believed that provision of a constitutional safeguard against subversion of the basic law would deter generals from stepping into the political arena. However, subsequent events exploded that naïve belief and the constitution was subverted three times: on July 5, 1977, October 12, 1999, and November 3, 2007. This means that incorporation of Article 6 into the constitution did not make any difference.

The counter argument, however, is that Article 6 didn’t make any difference because it was never invoked. Now that an elected government has made that difficult decision, let the judicial process take its course. The rule of law strengthens rather than emaciates democracy.

Musharraf, once Pakistan’s most powerful person, is already implicated in some other high profile cases including the murders of Benazir Bhutto and Nawab Akbar Bugti and confinement of judges. Also facing life threats from extremists, he’s really in the line of fire. Why did he leave a comfortable life abroad to put himself in such a difficult predicament at home? Out of bravery? Out of the passion to set the record straight? Or simply because he misread the situation? Let’s wait; for only time will shed light on this.

The writer is a freelance contributor. Email: hussainhzaidi@gmail.com