General in his labyrinth

The indictment of Pervez Musharraf for high treason asserts the civilian government’s supremacy over the military.

Former Pakistani President Pervez Musharraf when he arrived at an anti-terrorism court in Islamabad on April 20, 2013.

A new chapter has been opened in civilian-military relations in Pakistan with the indictment of General (retd) Pervez Musharraf, former President and Chief of the Army Staff, on March 31 for high treason. The five charges against him include his decision in 2007 to declare a state of emergency and hold the Constitution in abeyance. Speculation was rife that the special court constituted to try him would not even be able to indict him, but a non-bailable warrant issued by Justice Faisal Arab, who heads the three-judge Bench trying Musharraf, as a last resort in case he failed to appear in court was able to achieve the desired result. With security cover stretching from the Armed Forces Institute of Cardiology in Rawalpindi to the National Library building in Islamabad, Musharraf reached the court before the scheduled hour of 9-30 a.m.

Surprisingly, the legal team that had started his defence was nowhere to be seen. Instead, a Muttahida Qaumi Movement (MQM) senator and lawyer, Dr Faroogh Naseem, told the court that he would be arguing the case. His plea for an adjournment so that he could read up on the case was turned down, and Justice Arab was firm that the charges would have to be read out to Musharraf this time.

After the charges were read out, Musharraf asked the court’s permission to speak. The thrust of his over-20-minute address was that he was not a traitor, that he had won a gallantry award in the 1965 war, and that he was ready to shed his blood for the country. He also made the point that he was not alone in deciding to declare the state of emergency on November 3, 2007, and it involved the then Prime Minister, the Cabinet and other stakeholders. He also spoke of the progress, prosperity and dignity he had restored to Pakistan and claimed that his tenure had been better than the preceding years.

The court did not rule on his plea to go abroad to meet his ailing mother and also seek medical treatment. On April 2, the federal government refused to take his name off the Exit Control List (ECL) amid speculation that safe passage was in the offing.

The only other time Musharraf made it to court was after he was apparently given an assurance that he would not be indicted if he made an appearance for form’s sake. Musharraf did not appear in court several times despite summons, citing security risks. This was later borne out by a letter circulated by the Interior Ministry. A bomb exploded on a footpath after his convoy crossed it on the morning of April 3, but the former President had reached his farmhouse by then.

The case

Last year, after obtaining bail in some high-profile cases, including the Benazir Bhutto and Akbar Bugti assassination cases, Musharraf was all set to leave the country when he was rearrested in the Lal Masjid case, which relates to the death of a cleric when the Army stormed the mosque. The Nawaz Sharif government decided to prosecute him for high treason after it directed the Federal Investigation Agency (FIA) to prepare a case against him. The four-member team of the FIA constituted to probe the declaration of a state of emergency, the detention of judges and the holding of the Constitution in abeyance submitted its report on November 16. In December, Interior Minister Chaudhry Nisar Ali Khan announced the formation of a three-member special Bench and a special public prosecutor for the trial.

Musharraf admitted in subsequent television interviews that this was a move he had not anticipated. Against the advice given to him by top intelligence and military friends, he came back to the country from his self-imposed exile abroad only to find himself disqualified from contesting the general election and later slapped with many cases.

According to law, the Interior Department Secretary has to file a complaint on behalf of the government in the special court for a trial on charges of high treason under Article 6 of the Constitution, which says, “Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.” The offence of high treason is punishable by death or imprisonment for life.

In July 2009, the Supreme Court decided that Musharraf’s decision on November 3, 2007, to declare a state of emergency was unconstitutional and illegal. It also disposed of some petitions that had sought the filing of charges of high treason against Musharraf and put the onus on the government to make its move.

Five charges

Ironically, the statement of formal charges was read out to Musharraf by Justice Tahira Safdar of Balochistan, where the Army had carried out an operation to curb Baloch nationalists during Musharraf’s tenure. Musharraf was indicted on five charges. The first is that on November 3, 2007, in Rawalpindi as the Chief of the Army Staff, he issued the “Proclamation of Emergency Order, 2007”, held the Constitution of 1973 in abeyance, and thereby subverted the Constitution. This is an offence of high treason punishable under Section 2 of the High Treason (Punishment) Act.

On the same day, he issued a “Provisional Constitution Order No.1 of 2007”, which empowered the President to amend the Constitution from time to time and suspended the fundamental rights enshrined in Articles 9, 10, 15, 16, 17, 19 and 25 of the Constitution. Third, he issued the “Oath of Office (Judges) Order, 2007”, which required a judge to take an oath to abide by the provisions of the proclamation of emergency and the provisional constitutional order. This order resulted in the removal of numerous judges of the superior courts, including the Chief Justice of Pakistan.

Fourth, on November 20, 2007, as President he issued Order 5 of 2007, “Constitution (Amendment) Order, 2007”, amending Articles 175 (relating to the establishment and jurisdiction of courts), 186A (power of the Supreme Court to transfer cases), 198 (jurisdiction of the High Court), 218 (appointment of an election commission), and 270B and 270C (relating to elections), and adding Article 270AAA, which reaffirmed and validated all of his orders and ordinances, to the Constitution. Fifthly, on December 14 the same year, he issued Order 6 of 2007, “Constitution (Second Amendment) Order, 2007”, amending the Constitution of 1973.

The statement of charges said that these criminal acts of subversion of the Constitution were personal acts of Musharraf for the purpose of “personal aggrandisement and a consequential vendetta”. At no point of time did Parliament validate these changes in the law.

While the government has been firm on prosecuting Musharraf, his lawyers spoke of the safe passage offered to him even before the trial started. The behaviour of his former defence team did not endear itself to the judges who at one point rose for the day in disgust. There are also reports of his being asked by the government to sign an apology.

However, after the indictment, the government made it clear in the National Assembly that the law would take its course and the government was not about to soften its stand. Although in some quarters there is a feeling that the government is pointlessly pursuing Musharraf’s case, in others its move has been welcomed. Lt Gen. Talat Masood, chief coordinator of the think tank Pugwash, says: “I think obviously the monopoly of power which was held by the military in the most part has ended and new centres of power have emerged.” This shows that the judiciary and the executive and the politicians are trying to bring about the assertiveness of the civil over the military.

According to him, the indictment has set a precedent and given a warning to the military that it cannot keep taking over and running the country. This also sets a closure on the past in a way, he points out. The move has profound implications for Pakistan in terms of strengthening its democracy and the relations between the civil and the military in the long term, he adds. Like many others, he feels that this will be beneficial to the country and that it is very possible that Musharraf will even be sentenced and ultimately pardoned but the process of accountability will continue.

Ever since 1958, Pakistan has seen military strongmen take over from civilian governments. Inam R. Sehri writes about the events of 1958 in his book Judges and Generals in Pakistan (Volume two): “Unfortunately, the political stability could not be achieved and frequent changes of the government, apathy on the part of the legislators to the problems of the country, killing of the Deputy Speaker of the East Pakistan Assembly, beating up of the Speaker and desecration of national flag in Dacca led to the abrogation of the 1956 Constitution and imposition of first martial law in the country in October 1958. The central and provincial governments were dismissed, the national and provincial assemblies were dissolved, the political parties were abolished and Gen. Muhammad Ayub Khan, the Commander-in-Chief of the Army, took reins of the country as the Chief Martial Law Administrator, who later became the Field Marshal. It was declared that a Constitution more suitable to the genius of the Muslim people would be devised.”

Pakistan has lived with a sense of deja vu ever since, but two successive democratically elected governments have turned the tide in a significant way. Now it is all about the Army and the government being on the same page. Musharraf’s trial for high treason is an attempt in a way to reverse past excesses. The government, which seems to have asserted its authority for now, must be doubly cautious to ensure that history does not repeat itself.