December Issue 2013

The PML-N government’s decision to indict General Pervez Musharraf for treason under Article 6 of the Constitution has set in motion forces that may well lead to unforeseen or unintended consequences, that may not bode well for the country. Certainly it will polarise society, with the purists and pragmatists ostensibly taking issue with a small bunch of diehard Musharraf loyalists. Moreover, there is the prevailing perception, even among those not exactly fond of Gen Pervez Musharraf, that the indictment is motivated by deep-rooted, personal vindictiveness. Why has this issue been raised suddenly after five years, they ask.

Prima facie, Pervez Musharraf is guilty of treason. On November 3, 2007, he held the Constitution in abeyance. His actions were malafide, intended to remove the Supreme Court (SC) judges, who were about to declare his contesting of the presidential election in uniform as illegal. At the behest of the PML-N government, the Supreme Court has set up a trial court. Incidentally, Chief Justice Chaudhry, along with some sitting judges, were victims of Musharraf’s November 3 act, which was subsequently overturned by the Chief Justice, once he was restored in 2009. Can one then expect a hand-picked court to overturn Justice Chaudhry’s verdict?

While one does not doubt that in taking all those extra-constitutional steps, Musharraf is guilty as charged, but chances are that as the trial begins, the defence will raise questions about the composition of the court — Justice Tahira Safdar is an ad hoc judge; Justice Yawar Ali is a nephew of former Supreme Court Judge Justice Khalilur Rehman Ramday; and the presiding judge, Justice Faisal Arab, had refused to take oath under the Provisional Constitution Order (PCO) issued by the former military ruler, but he was later restored, along with the Chief Justice of Pakistan, on March 16, 2009. In public perception, the general may emerge as a victim rather than the perpetrator of a constitutional misdemeanour.

Then there is the question of whether Musharraf acted alone, or in cahoots with the army and the civilian government. Musharraf’s associates at that time now claim that they were not consulted prior to his November 3 action. In fact, some of them even claim that they were opposed to it. However, none of them have a satisfactory explanation as to why they continued to stay with him if they were against it. The truth is that the entire federal cabinet, including former prime minister Shaukat Aziz, did approve this illegal actions post-facto, and it now appears from evidence recently uncovered that Aziz even cited reasons for so advising Musharraf, in writing. It could be that he was asked to do so, and in the circumstances prevailing then, he did not have the courage to refuse.

Those on board in the senior military hierarchy included the then Vice-Chief of Army Staff, General Pervez Kayani, who gave orders to the Triple One Brigade to enter the SC to remove the SC judges and Chief Justice Iftikhar Chaudhry. The Manual of Pakistan Military Law (MPML) states that if you believe something to be an “unlawful command,” then you have every right to refuse to obey such a command. However, in actual practice, it takes a brave man to say no; even in the earlier martial laws, there were no “conscientious objectors.” In order to create a balance in the application of justice, Musharraf’s collaborators, whether civilians or from the army, must be charged along with him, as accessories to his November 3 actions.

A few days after the November 3 action, those SC judges who had taken oath under the Provincial Constitution Order (PCO) 2007, and subsequently removed Chief Justice Iftikhar Chaudhry for nearly five months till March 2008, ratified Musharraf’s November 3 measure as legal. Subsequently, the reinstalled Justice Chaudhry-led SC judges held the PCO-installed (PCO-2) judges as illegal and all of them were made to resign. Technically, the CJ himself was a PCO (PCO-1) judge and a member of the SC Bench that termed Musharraf’s coup in 1999 as legal. It is ambiguities such as these that make the issue potentially controversial. Public opinion is generally in favour of prosecuting Musharraf, but the timing of his prosecution (and the mode thereof) has led to sharp differences of opinion.

We also have the long-pending Air Marshal Asghar Khan case, where MI (not ISI) officers distributed funds among politicians to help them in the elections and keep out Benazir’s PPP. The COAS, General Aslam Beg is on record that President Ghulam Ishaq Khan ordered it and there is sufficient evidence to suggest that an Election Cell headed by Lt Gen (Retd) Rafaqat was functioning in the presidency. The controversy here is about whether this was a “lawful” or “unlawful command.” Most of the funds were accounted for but people must be held accountable for funds that have disappeared.

The rank and file may not have sympathy for Gen Aslam Beg (or for Gen Pervez Musharraf) in the cases and may well feel that they should face the consequences. But the troubling question is, how will they react upon seeing their former chiefs being dragged through civilian court rooms and humiliated by the judiciary and the media? Incidentally, generals Aslam Beg and Pervez Musharraf are not as popular in the rank and file as Kayani is, his two brothers notwithstanding, but if push comes to shove, Musharraf will drag Kayani into the courtroom as an accessory to Nov 3.

Already a motivated few in the informed ranks are busy casting aspersions that this is not genuine application of the rule of law but a deliberate conspiracy by the politicians and a subversive media to harm the army and this feeling could grow. The Nawaz Sharif government’s intention may not be malafide; they may simply want to make an example of one general to block the way for any future adventurers. While this may well be the case, it still puts the Pakistan Army on trial by default.

What then? Should the case be handled by the army itself?

There have been several cases of senior officers retiring without benefits, following administrative action against them. In the NLC case, three generals are said to be facing a court martial. Since they had to be charge-sheeted and face military judicial action, they were brought back from retirement. Was this simply a legal ploy by General Kayani to take a scandal involving the army out of the glare of the media and the public eye? Whatever the reason, it is in the interest of the army that the defaulters be tried, and either cleared or punished. If the government is really hell-bent on trying Musharraf and Aslam Beg, it is in their best interests to let the army do the job by applying military law to them, instead of dragging them through civilian courts.

At the moment, both terrorism and sectarian strife are undermining the government’s strenuous efforts to revive the economy. If the sectarian problem spins out of control, the army may be called in to aid the civilian law enforcement agencies (LEAs), that are already stretched to their limits. The country always turns to the army as a last resort. And if there is simmering discontent within the army’s ranks, because of the Supreme Court’s judicial activism, could it spill over? The remarks Chief Justice Iftikhar Chaudhry has been making within the exalted halls of the SC against senior uniformed officers have rankled with them.

Through the last decade, the army has been engaged, full-time, in counter-insurgency. It has rendered tremendous sacrifices: 4,000 soldiers killed and nearly 2,000 wounded. Without the army’s significant counter-insurgency operations and sacrifice thereof, the collateral damage (40,000 civilians dead) would have been multiple times more. I believe that the single most important factor for peace and stability in Pakistan is a strong, stable army. It is in our self-interest to sustain and motivate this fine institution and not resort to self-flagellation. Criticism, if any, should be well-conceived and objectively targeted without slurring the reputation of the army as a whole.

While morally and legally the government is right in indicting Gen Musharraf for treason, pragmatism must outweigh the necessity to be morally and logically correct.

On October 16, 1999, four days after Musharraf’s takeover, in a newspaper article, ‘Inevitable Power Play,’ I had said, “Anybody who supports a takeover by the army is not in his (or her) right mind. Pakistan has many external and internal threats that the armed forces have to confront; involvement in the governance mode will have a debilitating effect on the performance of their primary mission of defending the integrity and sovereignty of the country. A small coterie will always believe in total management in uniform, but the country’s (and the army’s) good is always best served by the armed forces staying away from running the country on a day-to-day basis. However, circumstances beyond their control were forced onto the army. When the die was cast, there were no options left except to either act or sit back and see a split in the army lead to possible civil war. While democracy is always preferable to the most benign military rule, it is better to have military rule than to have no country at all.”

My strong advice to Nawaz Sharif’s government is to leave well enough alone. If Musharraf, or anyone in uniform (or now out of it), has to be tried for treason, it must be by a military court. As I suggested in an article of mine 25 years ago, “Leave the army alone.”