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Analysis: Trying the king and his men

Updated April 16, 2014

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File photo.
File photo.

The political has given way to the legal, though it is not clear if this will change the course of retired General Pervez Musharraf’s trial for high treason.

During Tuesday’s proceedings, the bulk of arguments made by his counsel Barrister Farogh Naseem revolved around legal points. Naseem referred to a Special Court judgement issued on March 7, 2014 which said “as and when evidence on material was brought on record that the accused was aided, abetted and collaborated by others, the Court would then decide the issue in that regard”. To prove that there was material evidence available, he claimed that the official inquiry report by the Federal Investigation Agency, which became the basis for the registration of the case, “contained a dissenting note by one Mr Hussain Asghar”. That dissenting note, said Naseem, suggested that “Musharraf alone should not be sent to trial and that his aiders and abettors should also be made co-accused”.

The other piece of material evidence that he mentioned was the Proclamation of Emergency, as published in the official gazette. It showed the then prime minister, all the provincial governors and the members of the military leadership were all consulted, Naseem contended.

A decision on the merits of his argument is the court’s jurisdiction. His contentions, however, raise three questions open to debate. First, have Musharraf and his lawyers given up the hope of defending him against the charge of high treason? By shifting the focus of the argument to aiding, abetting and collaboration, have they conceded that he is guilty of subverting the Constitution? Secondly, is this an effort to bring into the ambit of the trial some retired — and perhaps even serving — military officials? Will the military ever allow that? Thirdly, what constitutes aiding, abetting and collaboration under Article 6? Of course, as Lahore-based lawyer Saroop Ijaz remarked, you cannot try a non-commissioned officer doing guard duty on a road in Lahore on November 3, 2007 as an aider, abettor and/or collaborator of Musharraf. Who could then be an aider, abettor or a collaborator and who could not be?

Let us take up the last question first. Naseem contended that “all those who had the power to stand up and say no but they did not will be aiders, abettors and/or collaborators” in this case. The Supreme Court verdict in the famous Asghar Khan Case reiterated the legal principle set during Nuremberg trials of Hitler’s Nazi regime that the officials of the state were not bound to obey the “unlawful command” of their superiors, Naseem told this writer. So, he seemed to suggest, anyone obeying Musharraf’s command to impose emergency would be an aider, abettor and/or collaborator. Isn’t the lawyer conceding that Musharraf is guilty of issuing an unconstitutional, unlawful command? More on that later.

Asad Jamal, another lawyer in Lahore, said the courts in many verdicts in criminal cases had interpreted what aiding, abetting and collaborating with a criminal meant. Do those interpretations apply to a constitutional offence? Jamal believed that the judiciary might have to settle this question as well even when it did try Musharraf’s aiders, abettors and/or collaborators.

As far as the second question is concerned, according to Ijaz, “a state must be fully prepared if it wants to carry out a meaningful trial of a former dictator”. Our state, or at least some part of it, he added, “is definitely not prepared” for Musharraf’s trial. “The most powerful part of the Pakistani state — that is, military — is certainly unhappy with the trial and the inclusion of more current and former military officers as aiders, abettors and/or collaborators in the proceedings will certainly increase that unhappiness,” said Ijaz. In this context, Naseem’s argument looks like an attempt to make an already difficult case almost impossible to handle by the judiciary and the government.

Lastly, Musharraf’s offence of imposing emergency and subverting the constitutional order does not become less offensive if he had aiders, abettors and collaborators and if there had been other usurpers of power in the past. The state’s inability or unwillingness to try his supporters did not exonerate him, argued Ijaz, neither was there weight in the argument that others who subverted the Constitution all went unpunished.

The lawyers defending Musharraf until recently were clear on this and that is why they never wanted him to be tried in the first place. Their argument was a political one: Musharraf derived his power from the military and to try him is to try the military. Forget about legal and constitutional niceties.

His new counsel, Naseem, also seems to know that there is no going around the fact that Musharraf imposed emergency. But rather than focusing on the military’s power he is trying to make a legal argument. The problem is that the purpose of his legal argument is the same as the purpose of the political one made by his predecessors — imposition of emergency was an institutional decision and not an individual one.

Even before he succeeds or fails in underscoring this point, it is clear that the outcome of the trial is predicated on answers to two interrelated questions: are the judiciary and the government willing and ready to take on the most powerful part of the state — the military? And is the military flexible and convinced enough to allow Musharraf’s conviction and punishment?

The writer is the editor of Herald.