By Najam Sethi
June 28, 2013
The PMLN government has taken the plunge and fulfilled its electoral pledge to try General (retd.) Pervez Musharraf for treason under Article 6 of the constitution. The prime minister announced this decision on the floor of parliament earlier in the week and the Interior Ministry is readying to make a report that will form the basis of a FIR against General Musharraf on this count.
The ironies in the situation should be noted. Gen Musharraf is not liable to be charged for treason for staging the coup in 1999. That is because the Supreme Court of the time, which included the current Chief Justice, validated it by means of a Provisional Constitutional Order, which was subsequently ratified by General Musharraf's parliament via the 17th constitutional amendment. The 18th constitutional amendment by the parliament of 2008-2013 confirms protection to the PCO judges but is silent on the coup. Indeed, all those politicians and parties that supported the coup-maker were loudest in the current parliament in thumping their approval of the decision to slap Article 6 on their former lord, master and benefactor.
Ironically enough, the SC's judgment of July 2009 is the critical point of departure. It ignores the coup of 1999 and squarely holds General Musharraf, and only General Musharraf, responsible for the "coup" of November 3, 2007, wherein the SC was packed up and a state of Emergency was declared. The greater irony lies in the fact that the SC judgment does not charge those others who formed the core of the Musharraf regime and were explicitly named in the Declaration of Emergency as being co-sponsors of the November 3, 2007, action. These were listed as "Prime Minister, Governors of all the four Provinces, Chairman, Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and Corps Commanders of the Pakistan Army."
This means that the PMLN government will only charge General Musharraf for High Treason in 2007 and not 1999; that it will not charge the judges who legitimized his coup in 1999 or those who legitimized it in 2007; that it will not charge his co-conspirators among the military and civilians both in 1999 and 2007, despite the explicit naming of them in General Musharraf's order of 2007. If ever there was a carefully contrived legal justification for targeting one person alone, despite overwhelming evidence of wrong doing by many, this is it. If ever there was a mockery of the principles of the Nuremberg trials, this is it.
The problem is that the PMLN government's options have been reduced to zilch by the aggressive and singularly focused tone of the SC. Apart from providing the legal framework for holding General Musharraf guilty and others, including judges and generals, innocent, the SC has been adamant that General Musharraf must be brought to book. Indeed, the treason case is being launched because the government has been ordered, in so many words, to do so by the SC. Does that imply that General Musharraf's treasonable fate is sealed?
No. There are several reasons for thinking that this is one trial that will not see the light of day. First, the military is not going to allow a former army chief to swing from the rope. In fact, it has not allowed former chiefs to be held in contempt of court, a case in point being that of General Mirza Aslam Beg. Second, the army has reacted furiously against attempts by the civilians to hold retired generals accountable for corruption, misuse of powers or bad judgments. Third, the physical elimination of a prosecutor in the Benazir Bhutto murder case against General Musharraf, followed by the mysterious withdrawal of some cases against him by petitioners, doesn't leave much to the imagination. Fourth, the forthcoming retirement of the CJP, who is the driving force against General Musharraf, is bound to impact the treason trial in more ways than one. Fifth, we may safely assume that the Saudis, who played a critical role in securing the release of Nawaz Sharif in 2000 from General Musharraf's clutches, will play much the same sort of role in securing General Musharraf from the clutches of of Nawaz Sharif in 2014-15. This is a quid pro quo that Mr Sharif will not be able to deny the Saudis who have a powerful vested interest in remaining close to the Pakistan army that secures the defence of Saudi Arabia and its allies in the Gulf in more ways than one.
We may recall that the ISI case of rigging the general elections in 1990 dragged on for nearly two decades and ended with a whimper rather than a bang. Similarly, General Musharraf's trial will go cold after he is allowed to leave the country on some pretext or the other at the prodding of the Saudis. He will lead the rest of his life in exile like many other dictators in history.