Our Musharraf problem

Legal eye
The writer is a lawyer based in Islamabad.
Our Musharraf problem is much larger than the person of General Musharraf. The debate might be framed in terms of meting out justice to a dictator or protecting the due process rights of a general and defending him from personal vendetta. But this is essentially a continuation of the conversation between transitionists and transformationists kicked off during the lawyers’ movement by friend Ejaz Haider.
This conversation is still about civil-military relations, about strengthening democracy and about divergent views on whether a trial will rupture an already tense relationship or if it will help balance an otherwise lopsided relationship.
In terms of legal merit, Musharraf doesn’t have a case. He broke the law, molested the constitution and issued a PCO as army chief on November 3, 2007. He locked up judges, bullied the media and beat up lawyers and civil society activists. But for a whole set of reasons – irrelevant at the moment – he failed to pull off this second coup. He also failed to coerce or cajole the newly elected parliament into granting protection to his unconstitutional acts. Musharraf’s proponents can bandy around legalese all they want, but their only argument is this: constitutional subversion has a long history in Pakistan; let’s let this one go as well.
But this is probably the first time that we have the opportunity to try a dictator who is reckless enough to be around even when his unconstitutional acts haven’t been sanctified by a constitutional amendment. There is no argument of principle or law that comes to General Musharraf’s rescue. His only shield is that the fact that he is a former army chief. An army chief, as we know, enjoys no legal immunity. When in service his immunity flows from his control over brute force. And after retirement it flows from a sorry sense shared by khakis that a general and his ‘grace’ are more important than commands scribbled down in the constitution.
You’ll hear the civilian argue that if one prime minister can be tried and hanged and another locked up in jail like a petty criminal and then forcefully exiled, why can’t a former army chief be tried? You’ll hear noises emanating from other arms: if a naval chief can be punished, what is so special about an army chief? You find legal purists insist that equality is the foundational right upon which is built the edifice of a just order and that a constitution can produce no justice if it can’t be uniformly applied to all. These may be reasonable arguments but the disquiet of even the most reasonable khakis over Musharraf being ‘dragged’ in courts has been palpable.
Trying Musharraf is no God-sent opportunity for Nawaz Sharif to get even with his tormentor. Sharif might never forget the treatment meted out to him by the general. But he is prime minister today and the general is locked up in his home outside Islamabad. It is Musharraf who insisted on returning to Pakistan at a time of his own choosing. What has transpired since is certainly poetic justice. But Sharif is between a rock and a hard place. He already has a rickety relationship with the khakis. If he seems eager to try Musharraf and seek his punishment, the khakis will call it revenge and blame Sharif for being a small man trying to shame the army.
But if he decides to let Musharraf go scot-free, the rest of us will yell and cry that Musharraf’s trial is about the supremacy of the law and not something you can barter for brownie points with the khakis and his and your foreign patrons. Musharraf’s trial is essentially about the nature of the state and the society that we are. Are we a place where who gets to break the law and get away with it is decided in foreign capitals? If the decision on Musharraf’s trial is going to be made on the recommendations of the Americans or the Saudis or other Arab monarchs, can we formulate economic and national security policies without their interference?
Are we a place where cases pending in the Supreme Court, two high courts and an anti-terrorist court can still all be ‘managed’ on the dictates of khakis? There was certainly a time not long ago when we knew that the ‘powers-that-be’ could decisively intervene and resolve any matter that was of interest to them. Are we still that place where the judiciary, the media, the lawyers and civil society and the politicos can all be managed with a stick? Are we a polity where the doctrine of necessity has been declared to be dead and buried by the apex court, but in reality it is alive and well and what is buried is just its smirking façade?
Are we a country whose national interest and national security needs will be served by a powerful army that believes it is not subservient to the constitution and the laws of Pakistan? Are we still the place where ‘miscreant’ lawyers demanding Musharraf’s trial will be ‘roughed up’ (read severely beaten) in broad daylight to send home the message that khakis still know how to protect their own and the rest will just look away? Will Pakistan be a stronger country capable of defending its security needs more vigorously because its generals continue to nurture a sense of entitlement that they are more equal than the rest?
Musharraf’s trial is not just about Musharraf, Nawaz Sharif, Justice Iftikhar Chaudhry and the khakis. It is about the rest of us as well. The kind of polity we think we are and the kind of polity we wish to be. Rule of law is not just about dispersion of power and recognition amongst older actors that the Supreme Court has also emerged as a new locus with a permanent seat at the head table and will need to be taken on board while cutting deals. It is about a mindset shared by all public officials – civil and military – that the law will be applied to their conduct without exception and visible normative behaviour where all organs of the state seek to be law abiding.
It is unfortunate if the popular sentiment within the army still is that Musharraf shouldn’t be tried for his crimes against the constitution. As a private citizen one wishes he had never returned to Pakistan to put a constitutional democracy in its formative phase and a powerful military struggling to adjust to changing realities of Pakistan in this conundrum. But now that Musharraf has elected to be here, he must be tried in accordance with the law or else we will prove to ourselves that we are still the retrograde elite-captured state where the law is only a means to entrench power and not a means to check its abuse.
Nawaz Sharif should try to improve civil-military relations while simultaneously seeking to rebalance them. He should do so by ensuring that civilian control over the military does not manifest itself in attempts to interfere with promotions or postings of military personnel to key positions. Instead control should flow from clear national security and foreign policies formulated in consultation with the military and from promulgation of laws to regulate intelligence agencies that introduce accountability within these vital state organisations without undermining their operational efficiency.
In the present geo-strategic environment we need our civil and military leaders to be on the same page to effectively address our security challenges. Building bridges is a good idea, but appeasement is not. So long as the PML-N government does its own job well and the fruits of democracy trickle down to the Average Joe and Nawaz Sharif meticulously abides by principles and the law he need not look over his shoulder to see if the khakis are pleased.
Email: sattar@post.harvard.edu