Here are the legal, political and procedural arguments being proffered by our ‘Pakistan-first’ Musharraf. His substantive legal defence is that he never subverted the Constitution because the Constitution of 1973 is not a constitution at all. The entire country might have been living under the false illusion since 1973 that we have a sacrosanct fundamental law. But the entire country is wrong. The Constitution of 1973 was not passed by a valid constituent assembly and thus didn’t bind Musharraf at all.
The gist of the argument is that Pakistan is a free for all. Anyone who has power can grab control of the state. Imagine if this argument were actually accepted by the court. What is our case against the Taliban or the Baloch separatists? If there could be an argument more vicious than the doctrine of necessity or that a successful revolution legitimises itself, it is this. Who knew the wily old Pirzada will never get rusty!
Musharraf’s appeal to patrons in the West made by his UK lawyers is that it is time to recompense. Musharraf unconditionally supported the US-led war on terror and in lieu of his services and loyalty the West must stand beside him. Really? Was Musharraf’s confession in his book about being the bounty hunter who handed Pakistanis and foreigners to the US without due process not damaging enough, or later revelations that Musharraf handed drone-aiding airbases to the US?
Is Musharraf inviting the US and UK to interfere with our justice system and arm-twist the PML-N government or the army to bully the court into not trying Musharraf? Should the US declare that release of payments due to Pakistan would be contingent on suspension of the Musharraf trial, just as it has linked such release to the release of Dr Shakil Afridi? Would such foreign interference be in the best interest of the country, its sovereignty, rule of law and institutional evolution?
Musharraf’s procedural argument is that he should be court martialled and not tried by a civilian court. Never mind that Article 6 states that anyone who subverts the Constitution is guilty of high treason (the only offence defined by the Constitution itself). Never mind that parliament promulgated the High Treason Act, 1973 that authorises the federal government and not the army to initiate a treason trial.
Never mind that the Criminal Law Amendment (Special Court) Act, 1976 states that anyone accused of high treason is to be tried only by a special court comprising three high court judges constituted by the federal government. Never mind that special law prevails over general law and between two special laws the later in time prevails, and consequently the High Treason Act and the Special Court Act override the Army Act, 1952 even if the latter said that a khaki can never be tried by a civilian court, which it doesn’t.
Forget the law for a minute. Imagine if the special court was to concede the court martial argument. Would you want a panel of junior officers trying and punishing a former army chief? If they gave him a clean chit of health, would such order be deemed credible or just? Would it serve the army’s institutional interest to be dragged into the centre of this controversy in full media gaze when the role of being a bystander is stressful enough?
Arguing that the government ought not have initiated the treason trial as and when it did is one thing. Arguing that the trial should just dissipate after it has begun is another. Whatever realpolitik arguments might have existed for not initiating the trial are irrelevant now. Unsavoury compromises to bend the law and save Musharraf from being indicted or tried at this stage will hurt the integrity of the government, the judiciary and the army.
Musharraf needs to be tried not to deter others or strengthen democracy. He needs to be tried simply because he got caught breaking the law. Let him submit to the special court. Let him admit that he wronged the Constitution and apologise to the people of Pakistan instead of subjecting this country and the army to the ignominy of a protracted trial. Rule of law demands certainty and not severity of punishment. Let Musharraf confess and then be pardoned in the interest of moving on without compromising principles.
