That the trial of former President Pervez Musharraf for treason should arouse interest should be expected. The trial is not only on a capital charge, but is being conducted in a special court. That court consists not of a member of the subordinate judiciary competent to impose the death sentence, but by a three-member Bench composed of judges drawn from three of the country’s high courts. However, the interest of the trial is centred upon the fact that a former COAS is under trial , and that too on a charge which the military has always assumed to be its peculiar prerogative.
Article 6, the constitutional provision under which the trial is being conducted, is not some borrowing from the 1935 Government of India Act, which is the source of so many other constitutional provisions, but is the constitution-makers’ response to the two martial laws imposed in 1958 and 1969 prior to the passage of the Constitution in 1973, while the change made by the 18th Amendment in 2010 were in response to the martial laws imposed after, in 1977 and 1999. However, there has been little attention paid to the fact that this trial means that a former President is being tried. It is interesting that immunity is not being claimed for him on this ground.
It should be remembered that General Musharraf is not being tried for his original coup, but for his imposition of Emergency in 2007. The difference between the two actions is that in the first he was not the President, and took over the government, while in the second, he not only was, but left in place the government. However, the second imposition of Emergency was clearly aimed against the judiciary, and was meant to remove the then Chief Justice of Pakistan, Mr Justice Iftikhar Muhammad Chaudhry. Going back even before the Dosso case, in which the Ayub Martial Law was upheld, in Maulvi Tamizuddin’s case, in which the Supreme Court upheld the Governor-General’s 1955 dissolution of the National Assembly, it showed concern about the administration of justice, noting that the courts were allowed to continue functioning. In the Dosso case itself, it also noted with approval that the judiciary was left to do its work.
Thus a deal was established between the military and the judiciary, that the former receive from the latter validation of any martial laws it might impose, provided that it could show a breakdown of the constitutional machinery. That might explain why elected governments have gone so far as declaring any criticism an ‘invitation to martial law’ and a ‘threat to democracy’.
Musharraf appears to be basing his defence on this: at the time of the imposition of Emergency, he has already said, the judiciary was out of control. True, he has not identified how, even if this was true, under what legal authority he imposed it. Implicit in this is the argument that the trial will drag in many former, and more pertinently, serving members of the armed forces. Musharraf’s extraordinary pre-trial statements, that the Army was upset by the holding of the trial , and that he left it to the COAS to determine how the trial would go, are part of this.
Implicit in this is what the trial is really about: the ability of the Army to carry out a coup. That ability is based on the argument that the Army somehow has a higher duty than its oath to the Constitution. It assumes that when the Army judges that the elected leadership is running the country into the ground, the military is bound to take over. That this leads to military men taking up political offices is not supposed to be a temptation. This view of the Constitution does not put military men alongside the Islamic fundamentalists, but it puts them close. If Islamic fundamentalists view the Constitution as un-Islamic and thus oppose it, to the extent of trying to sabotage the last elections, the traditional military view of the Constitution has been that it is mutable, and that the COAS has the right to oppose his judgement to it.
The judiciary, in its various rulings on martial laws, has backed this view. However, the Supreme Court, under the Chief Justiceship of Iftikhar Muhammad Chaudhry, has taken the view that the Constitution has given the judiciary its right to exist, and thus it cannot treat any attempt to denigrate it as worthy of being backed, for whatever reason.
Another thing that should give Musharraf pause is that, as has been noted by several commentators, the very fact that the trial is happening at all, indicates that the Army is behind it. The government would know this from the COAS, who has only recently been appointed. This is the same COAS as Musharraf is appealing to. As Musharraf would well know, a COAS cannot impose his own opinions. He merely acts as a conduit for the opinions of the majority. His personal opinion only matters if there is a division of opinion within the military.
One more thing that blocks Musharraf’s escaping trial is that Turkey has undergone the Energekon trials with success, which saw senior officers from all three services convicted and sentenced. Among several cultural and historical similarities that Pakistan has with Turkey, one is the reverence of the military, and the role it is seen as having with reference to a hostile state, in Turkey’s case Greece, in Pakistan’s India. Also, the Turkish military, in its Kemalist, post-Caliphate, form, has been perhaps more obedient to the US than Pakistan. Part of the compact has presumably been the immunity of the military from the law. If Musharraf is indeed the admirer of modern Turkey, where he spent his childhood, that he says he is, he must also be aware that the country has been dominated by the military ever since the Caliph was removed by Mustafa Kemal in 1924. The military in turn has been closely aligned with the US, to the extent that Turkey is a NATO member, and was a CENTO member at a time when the US was trying to contain the USSR and China with its alliances. The Energekon trials must have gone ahead with US permission, a sign that the US can sell out supporters.
Musharraf’s attempts to get the Army involved and to avoid personal attendance because of the militant threat to his life are signs that he (or his lawyers) are worried. His non-appearance is part of the same strategy. However, the trial must go on. The facts are not in dispute. What is at stake is whether or not the Army has the right to save the state by acting beyond the Constitution.

The writer is a veteran journalist  and founding member as well as executive editor of The Nation.