Comment: Musharraf in the dock

Published April 1, 2014
Gen (retd) Pervez Musharraf  before leaving hospital for appearing in special court . — Photo by INP
Gen (retd) Pervez Musharraf before leaving hospital for appearing in special court . — Photo by INP

After an interminable game of cat and mouse, retired Gen Pervez Musharraf finally stands charged with subverting the Constitution and thus committing the offence of high treason. He is accused of five distinct acts of subversion of the Constitution.

Firstly, in his capacity as chief of the army staff, he issued the initial Proclamation of Emergency Order on Nov 3, 2007 whereby he proclaimed emergency throughout Pakistan and declared that the Constitution would remain in abeyance.

Secondly, in his capacity as COAS, he issued a Provisional Constitution Order No 1 of 2007 in which he empowered the president of Pakistan — an office he was simultaneously enjoying — to amend the Constitution. This order also placed several of the constitutionally guaranteed fundamental rights under suspension. Thirdly, in his capacity as president, he issued an Oath of Office (Judges) Order 2007 which provided that all judges of the Supreme Court and High Courts would cease to hold office unless they took a fresh oath promising to abide by the Proclamation of Emergency and the Provisional Constitution Order.

Fourthly, in his capacity as president, he issued the President’s Order No 5 of 2007 making various amendments to the Constitution.

Fifthly, in his capacity as president, he issued the President’s Order No 6 of 2007 making various other amendments to the Constitution.

Naturally, none of the above acts were within the constitutional powers of the COAS or the president of Pakistan. These five “legal” instruments were intended to take effect — and did, in fact, take effect — regardless of the provisions of the Constitution. The nation was, de facto, governed under these instruments until such time as Gen Musharraf himself withdrew the Proclamation of Emergency. Clearly, therefore, the issuance and implementation of these instruments constitute subversion of the Constitution.

What next? Like in any other criminal case, after framing of charges, the prosecution is required to prove that the accused has actually committed the acts alleged in the charge and that he committed them willfully. If the prosecution is successful in proving this, the accused then has the burden of showing that such acts were legally justified for some reason or another.

Thus far, Musharraf’s legal team has not disclosed any real defence to the charges against him. Their impassioned rhetoric about the failure to prosecute coup-leaders in the past and the failure to prosecute his co-conspirators is not a legal argument and not much of a moral argument either. Neither our law nor our sense of morality permits a thief to avoid prosecution simply because previous thefts have gone unpunished or because his accomplices have escaped.

The non-disclosure of a real defence may, of course, be part of Mr Musharraf’s legal strategy. Most criminal defence lawyers prefer to remain silent at first and see if the prosecution can discharge their initial burden of proof. Having said that, in most cases the criminal act is not committed by the accused on camera in a nation-wide address made on state television. The classic “it wasn’t me and let the prosecution prove its case” strategy is unlikely to bear much fruit here.

The truth is that no one on Mr Musharraf’s team thought the matter would get this far. You don’t need to formulate a legal defence when you plan on making a deal long before trial. Their focus has always been on trying to delay the case — whether through guile or plain bullying — and somehow get Mr Musharraf out of Pakistan.

When the media reported that Justice Faisal Arab had recused himself in frustration, it seemed those defence tactics had borne fruit. Luckily, wiser counsel prevailed. As a result, for the first time in Pakistani history, charges for high treason were framed against an accused for subversion of the Constitution.

Inevitably, the framing of charges against Mr Musharraf will give rise to a chorus of voices arguing that the point of civilian supremacy is made and further proceedings would only smack of vengeance and cause destabilisation in these already uncertain times. Let him go to his ailing mother and be banished to those shores forever — these voices shall say.

Actually, the continued stability of Pakistan depends upon the establishment of the rule of law. Pre-trial deals and special treatment for law-breaking generals and NROs for law-breaking politicians are anathema to the rule of law. Let Gen Mr Musharraf’s trial continue and let his legal team actually start thinking of a legal defence.

The writer is the president of the Karachi Bar Association.

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