Should he be tried or not tried under Article 6 of the Constitution, that is the question under fresh focus. That the court is determined to try him is more than obvious. A three-member Supreme Court bench hearing petitions seeking General Pervez Musharraf's trial for high treason has said the Article 6 would be applied to him even if the sky falls down. Deterrence against military intervention would come with the implementation of Article 6 of the Constitution, observed an honourable member of the bench.
During last week's proceedings, Justice Jawwad S Khawaja remarked that the interior ministry secretary had to file a formal complaint against General Musharraf under Article 6 read with High Treason (Punishment) Act, 1973, for subverting/abrogating the Constitution. And Justice Arif Hussain Khilji warned that if those responsible for fulfilling their responsibilities failed, the court would do the needful. Fulfilling that responsibility may be the executive's prerogative, yet the court's decision is to prevail.
Even though the government has indicated it'd rather deal with the more pressing issues of terrorism and economic revival than to start, at this point, a treason case against the former military ruler, it says it would follow court orders. The reluctance, though, has little to do with either the order of priorities or lack of desire to hold the general to account; it is about fear - fear that trying a former army chief would be seen by the men in uniform as an attempt to break the myth of military honour vis-à-vis civilians, personified by all senior officers, that needs to be protected to promote both individual and institutional interests. Also, the general has the backing of some influential foreign countries in his domestic political battles.
Those in the habit of making unsavoury compromises have been pointing fingers at the judiciary for having validated military takeovers in the past, including General Muhsarraf's October 1999 coup and authorising him to amend the Constitution - something outside the apex court's own jurisdiction - to pour contempt on the judges for their insistence to hold him to account now. (Legal experts argue that his second subversion of the Constitution had no legal cover and hence he can be tried for it.) But then we must not forget that an elected parliament too indemnified his acts in 2002, and two years later passed a person-specific law entitled "President to Hold Another Office Act, 2004," providing him with a legal cover to occupy, in blatant violation of the relevant constitutional provision, both the offices of Chief of the Army Staff and President of Pakistan. The next PPP-headed coalition government was all set, once again, to indemnify his second imposition of November 2007 martial law, and under it second subversion of the constitution, but for the PML-N-led opposition's refusal to play along. Clearly, no player comes out smelling of roses out of our messy political history. There is no point therefore in raking up past misdeeds of one or the other person. We need to deal with our present travails as best as we can so as to move ahead to build a better and brighter future.
The line between our dark past and a new beginning was drawn the day Chief Justice Iftikhar Mohammad Chaudhry refused to obey the generals' command, deciding instead to resist. What followed was an unprecedented two-year long movement, launched by lawyers and supported by civil society and the media, for judicial independence and rule of law. The rest, as they say, is history. That watershed event should be the guiding light for determining our future course. Instead of fear, rule of law must prevail.
Some well meaning opinion leaders too advise restraint. Wait, they say, like Turkey - where military staged three coups and ousted an Islamists-led government from office during the last fifty years - till democracy is strong enough. Notably, about three years ago, Prime Minister Tayyip Erdogan initiated trial of over three hundred military officers for plotting to overthrow his government. Three former generals were sentenced last year to 20 years, each, in jail while 275 individuals, including senior generals, naval commanders, army officers, lawyers, academics and journalists are being tried for their alleged role in a failed coup plotting.
No two situations are exactly alike. Still, democracy in Pakistan is stronger than ever before. People power has returned General Musharraf's nemesis to power, and landed him in jail even if within the confines of his comfortable home. An increasingly assertive judiciary goes to any lengths for the establishment of rule of law. The media is playing its due role as society's watchdog, while a robust civil society remains on guard to defend democracy. The time seems to be right to deal with the ever present threat of army interventions once and for all.
Fear mongers have been saying trying Musharraf on treason charges will open the proverbial Pandora's Box. He did not act alone, goes the argument, and therefore his former colleagues could do anything to save him in order to save themselves. Indeed, clause 2 of Article 6 states "any person aiding or abetting the acts mentioned in clause 1 shall likewise be guilty of high treason." The Army, however, operates under the 'unity of command rule' - General Musharraf's favourite line in public discussion of political issues - while a democratic dispensation follows the opposite grassroots-to-top principle for decision-making regarding most governance matters. Senior officer's orders, in the present case, the Army chief's, are to be obeyed without question. That may absolve his co-defendants of aid and abetment charges. If not, so be it. Like Turkey, let them face accountability for their acts of omission or commission.
The purpose must not be to subject any individual(s) to death penalty the crime of high treason carries. Death penalty, in any case, is an uncivilised act by the state and an affront to dignity of life. Once the process of accountability is over, the door to forgiveness can open. If and when that happens, the civilian government should show magnanimity. The presidential power of pardon should be invoked to grant forgiveness. The important thing is to establish that no one is above the law.
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