May Issue 2013

For the politically naive, who do not understand the Machiavellian twists and turns of Pakistan’s politics, the trial of former military ruler Pervez Musharraf may appear to be an enigma.

How can a military coup, which overthrew an elected government on October 12, 1999 and violated the constitution, remain kosher, while the state of emergency imposed in the country in November 2007 become an act of treason for which only one person — General Musharraf — is being held responsible today?

Didn’t our honourable Chief Justice, Iftikhar Mohammed Chaudhary, who led the heroic struggle to establish the supremacy of the judiciary, and many of his colleagues not only endorse the October 1999 coup, but also continued to serve in the Supreme Courts for eight long years? During this entire period, the superior judiciary endorsed, accepted and gave “legitimacy” to the military takeover of power from an elected government.

These were the same judges who gave Musharraf and his team the right to amend the constitution after the 1999 coup and were seen as the main collaborators and arbiters of the unconstitutional step.

If the bloodless coup of 1999 was staged with the help and support of all the senior officials of the Pakistani armed forces and many civilians, so was the 2007 emergency imposed after consultation with the corps commanders of that time and civilian leaders.

It was only after the Chief Justice’s controversial removal in March 2007 that many of them were able to see the light and make the distinction between right and wrong.

However, the Supreme Court, which has taken many suo moto actions — all in the larger public and national interests — did not initiate a similar action against Musharraf or hold him for treason after he resigned from the office of president in August 2008 and continued to stay in the country for at least eight months.

But these are totally different times in Pakistan, and Musharraf is now in a completely changed political landscape where he is being dragged from court to court for treason, murder, terrorism and host of other charges.
In the treason case for the imposition of the 2007 emergency, his opponents in the legal fraternity and politics maintain that he acted alone. The reason: it appears that they do not want to drag the armed forces and sitting generals into the legal fray against the backdrop of reports of growing unease and anger across the ranks of the armed forces resulting from the way their former army chief is being treated by those who themselves have “tainted hands.”

“You cannot single out Musharraf for imposing the state of emergency,” says his lawyer, Ahmed Raza Kasuri. “Musharraf took this step after consulting the vice-chief of army staff and all the other top officials of the armed forces, the prime minister and the cabinet members of that time. It was a collective decision.”

Agreed that the suspension of the Constitution in November 2007 and Musharraf’s crackdown on the judiciary and media were miscalculated and wrong steps, but how can only one person be held responsible for a decision which was said to be a collective one?

Why are charges not being brought against all those who served in the government and facilitated him to assume and retain power? What about the Kasuris, the Legharis, the Tareens, the Chaudhries and other born-again democrats like them who were part of Musharraf’s brigade?

Additionally, why begin the process of accountability from 2007? Why not 1999? And why not 1977?
Wasn’t Nawaz Sharif one of the biggest beneficiaries of the other general, General Zia-ul-Haq, who ousted a democratically elected leader and seized power?
Just for the record, the constitutional definition of treason as given in Article 6, also includes:
(2) Any person aiding or abetting [or collaborating] the acts mentioned in clause (1) shall likewise be guilty of high treason.
[(2A) An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and a High Court.]

The other cases being pursued against Musharraf appear to be politically motivated and reek of partiality and vindictiveness. Of them the Benazir Bhutto murder case and the crackdown on the Lal Mosque must top the list.
If President Asif Ali Zardari or Mian Shahbaz Sharif cannot be tried for their failure to protect the Punjab Governor, Salman Taseer against terrorist threats following his support for a blasphemy case victim, Aasia Bibi, as also all other victims of terrorism and violence, similarly Musharraf cannot be held responsible for the terrorist gun-and-grenade attack on Ms Bhutto, who ignored the security briefs to reach out to the masses like an outstandingly brave leader.
If General Pervez Ashfaq Kayani can be deemed accountable for clearing Swat of the Taliban militants, then Musharraf and his aides — many of whom are still serving in the army — can most certainly be tried for the Lal Mosque operation against the militants holed up there, who were challenging the writ of the state. These well-trained militants, armed with grenades, automatic weapons and rocket launchers, were operating in the federal capital and killed 11 soldiers over the course of the eight-day siege. Could or rather, should any state have tolerated such a direct challenge to its writ and authority?

The case of Nawab Akbar Bugti has also been distorted by many politicians for their own vested interests. The fact is that the security forces swung into action against Bugti and his band of warriors after a prolonged stand-off. For months, Bugti’s followers were firing rockets on the natural gas installations and other important government targets, declaring a virtual revolt against the state. According to reports of security officials, Bugti is said to have died when he detonated a bomb inside a cave where he was hiding. Four military officers, who were negotiating his surrender, also lost their lives in that incident.

As for the trial itself, the manner in which some of the honourable judges are proceeding goes against their best traditions.

Take the case of the Honourable Justice Shaukat Aziz Siddiqui of the Islamabad High Court. He cancelled Musharraf’s bail in a bailable offence in the judges’ detention case, according to Musharraf’s lawyers.
“Getting bail is the right of a person in a bailable offence…even when the police knocks at your door, you can get a personal bail bond in a bailable offence,” argues one of Musharraf’s key lawyers, Ahmed Raza Kasuri.
“Judges never order arrest in the court, as was done in Mr Musharraf’s case…judges simply accept or reject a bail application. The rest is the job of the police,” he added.

Justice Siddiqui has had a long association with the Jamaat-e-Islami and he even ran in the 2002 elections from NA-54 (Rawalpindi) on a Muttahida Majlis-e-Amal (MMA) ticket. More significantly, he was also one of the lawyers of Maulana Abdul Aziz in the Lal Mosque case. Perhaps, the Justice should have done the honourable thing by stepping down from the case in order to avoid any accusations of being biased. “The bias of any judge sends a wrong signal to the world about Pakistan,” says Kasuri.

Ironically, the man who is being charged with terrorism is the man who played a key role in the global war against terrorism, and remains one of the most sought-after target of the terrorists. Musharraf narrowly escaped death twice, when terrorists tried to blow up his cavalcade.

It is not enough for the superior judiciary to dispense justice, justice must be seen to have been done — that is the challenge before them. Judges cannot and must not play to the gallery. They should not be influenced by a section of the rightwing media and cheerleaders of the Taliban and Lal Mosque insurgents. It can have a disastrous affect on Pakistan’s politics, which needs a healing hand and not the continuation of a cycle of revenge.

Some among the lawyers’ fraternity are only vitiating the atmosphere of the court and lowering its dignity by resorting to sloganeering and violence against Musharraf and his supporters during the general’s court appearances. Such provocation will not further the cause of justice and democracy; it will only serve as a black mark against an institution, that is held in high esteem.