Ending the gridlock on Musharraf’s trial

There could hardly be a more open and shut case of treason than the one against Musharraf for his attempt to overthrow the constitution in November 2007. The law states clearly that anyone who abrogates or subverts the constitution is guilty of high treason and that the offence is punishable with death. The facts are equally undisputable. The crime was committed before the eyes of the whole world and no elaborate evidence is required to prove guilt.
Yet, the case is so caught up in our opaque and labyrinthine judicial system that the chances of justice being done look increasingly bleak. There are several reasons. Trial proceedings are being hampered by behind-the-scenes pressure from the top army leadership, political expediency, government incompetence, a long tradition of impunity for the rich and powerful, especially for the military top brass, and the sheer crookedness of our political class. The civil society and the media are also responsible for failing to grasp how important the implementation of Article 6 is in order to uphold the supremacy of the constitution and to close the door to future adventurers.
Treason is the most heinous crime known to law and is punished with the severest penalty imposed by the state. The law also demands that an accused facing this charge should normally be held in detention like all common criminals while the trial proceeds. But Musharraf continues to live luxuriously in his home and is free to roam about with armed escort. He is also able to continue his political activities. A week ago, he announced that his party, the All Pakistan Muslim League (APML), would contest local government elections. He also directed his supporters to prepare for early parliamentary elections.
The fact that the ousted military dictator now exudes more and more confidence that he will escape justice, and even hopes to make a political comeback, is due in large part to the actual and perceived protection he enjoys from the country’s military. In an interview with a British newspaper last month, he thanked the army, which he called “my institution”, for having made all this possible. “I’m very proud of my institution,” he said. “Whatever they are doing to help me, to protect the honour and dignity of their ex-chief, I’m proud of that.”
This is not the first time after his forced retirement from the post of army chief in 2007 that Musharraf has used the first person possessive pronoun for the army. It is a sign of his yearning for the good old times when he was commanding the country’s most powerful institution. But Musharraf’s claim that the army is ‘helping’ him and protecting his ‘honour and dignity’ as he faces his treason trial is not something that should be ignored or lightly brushed aside.
The army of course has no business trying to save or ‘help’ a former chief who is being tried on the charge of treason. Interference with the judicial process is unacceptable from whichever quarter it comes, but when it comes from the army, it is also a sign that the bad old habits have still not been given up.
An equally big cause for concern are indications that the Nawaz government has given in to this pressure and has decided to adopt a ‘go slow’ mode in prosecuting Musharraf. There are even some worrying signs that the government may welcome it if the trial has to be halted because of legal technicalities. These speculations are being fed by the government’s silence and inaction in the face of the judicial gridlock resulting from two developments in Musharraf’s trial.
First, on November 21 last year, the special court in which Musharraf is being tried accepted his plea that his abettors should also be prosecuted. In a two-to-one split decision, the three-man bench ordered that former prime minister Shaukat Aziz, former law minister Zahid Hamid and former chief justice Abdul Hameed Dogar should be made co-accused in the treason case. After this decision, petitions were filed by the trio, widely seen as the main collaborators in Musharraf’s assault on the constitution, in the Islamabad High Court against the special court’s orders for their trial. But the government has neither challenged this decision, nor has it taken any steps to implement it.
Second, on December 23, 2014 a single judge of the Islamabad High Court granted a stay against the special court’s orders for the inclusion of abettors in the treason trial and restrained that court from proceeding further until the final disposal of the trio’s petitions.
Because of the Islamabad High Court’s stay order, proceedings in the special court for the trial of Musharraf have come to a virtual halt. Last Wednesday, in the absence of the three members of the bench, the registrar of the court adjourned the case for one more month till April 24 without any hearing.
The proceedings in the Islamabad High Court are also marking time. The court held its last hearing on the case on February 17 and gave the government three more weeks to file a reply. That period has since ended but the hearing has not been resumed.
To break this impasse, a petition was filed in the Supreme Court on February 26 challenging the authority of the Islamabad High Court to stop the special court from hearing the treason case. This petition has not yet been admitted for hearing.
The main reason behind the mess over Musharraf’s trial is the indecision of the Nawaz government. It is not prepared to risk alienating the army by pushing for Musharraf’s conviction. At the same time, it does not want to open itself to the charge that it allowed the former military dictator to escape justice. The result is a policy of drift, which has become the hallmark of the Nawaz government in other areas as well.
One press report, which has not been refuted by the government, suggests that the government would like the treason trial to drag on till a way can be found to shelve it under some pretext or the other. That explains also why the special court’s decision that the trio of Musharraf’s main collaborators should be tried simultaneously with him was not challenged by the government. The government has also been delaying filing a reply to the three petitions filed by them against the special court’s verdict in Musharraf trial.
Yet it is not the government alone that is trying to prepare grounds to let Musharraf off the hook. The other political parties, including those that applauded loudly when he was formally charged in December 2013, are also playing along. None of them has raised its voice over the unfolding plot, because they too want to keep on the right side of the most powerful institution in the country.
This is not the first time that the long-term interests of the country are being sacrificed by our political class for selfish short-term political gain. If they are allowed to succeed, we will be adding another dark chapter to the constitutional history of our country and undoing much of the good work done by Iftikhar Chaudhry in putting the country on the path of constitutional rule.
Not much good can be expected from our current set of politicians. When Zardari was in power, he even shamelessly promised to the Americans that he would give constitutional immunity to Musharraf for his misdeeds. Nawaz is now following a policy that will have the same end result. This is a point on which the PTI also agrees with the PML-N.
The best hope of bringing Musharraf to justice now lies with the judiciary. It is because of those judges who stood their ground in the face of the then military dictator’s madness that the supremacy of the constitution was restored. It is also because of the judiciary that Musharraf was brought to the dock and not allowed to decamp from the country. The judiciary can now play an important role in ensuring that the trial is brought to an early conclusion and justice is done.
The writer is a former member of the Pakistan Foreign Service.
Email: asifezdi@yahoo.com