The trial of Gen (retd) Pervez Musharraf for high treason is not getting underway, especially after his failure to appear before the trial court has meant that the formal indictment, an essential part of the process, has not yet been issued. His suffering of heart pains is not apparently enough to take him go abroad, but has so far got the special court set up to try him involved in a procedural matter, instead of getting down to the real case.

Musharraf’s refusal to appear before the court may seem a little childish. Yet it goes to the heart of the case against him. Though the excuses used so far have been derived from the civilian criminal law, behind their acceptance is the fact that the accused to be indicted is a former Army chief. That he is also a former President does not seem to be an issue, for behind that office was his position as COAS. Within that context, his silent refusal to acknowledge the court that is trying him for a capital offence seems understandable.

Both the reasons he has given for not appearing so far have been rejected by many as mere excuses. It is perhaps symptomatic of a common attitude towards the law courts: that anyone accused will inevitably use excuses to get off. There are numerous cases of the accused producing a medical certificate, and the chest pain excuse is well known. The idea is to claim an ailment serious enough to prevent a court appearance and need hospitalization, but which cannot be ruled out even if the standard diagnostic tests show nothing wrong. Pains in any part of the body are like that.

Accused may not have claimed bombs on the way to court, but the threat to life is known. That IEDs were found on both the occasions Musharraf was to go to court might be an excuse, but may equally result in his death. Militant groups are perennially after him, having attacked when he was President, and apparently viewing his current moving out of his Chak Shehzad farmhouse as an opportunity. One reason why the government may wish him out of the country is that abroad he would be safe. As a counter-argument, there is the fact that Musharraf has been back in the country for almost a year, and these are the first attempts on his life. He is either not as high-value a target as he thinks, or the militants are not as efficient as is supposed.

There are two apparently contradicting arguments at work. One is that Musharraf is not getting a fair trial. The second is that he is a former COAS, and thus the trial is particularly sensitive. That the trial may not be fair is based on the view that he should be tried not just for the 2007 Emergency, but for his previous imposition of Martial Law. Indeed, the question then arises of trying all past Martial Law dictators. That might be difficult, for the 1958 Martial Law was imposed 55 years ago, and anybody in service at the time, would have long retired. That would also be the case with the Yahya Martial Law of 1969, imposed 44 years ago. As a matter of fact, any trial for those, or the 1977, Martial Law, might fail for lack of defendants. There is also the problem that this argument is akin to a murder accused asking for acquittal on the ground that other murders have not been brought to trial.

However, it must be remembered that the present trial is not being conducted because of governmental discretion, but on orders from the Supreme Court. Therefore, while the government may choose to institute cases against earlier abettors of Martial Law, it is not obliged by any court orders, as it is in this case. The willingness or otherwise of politicians to support Musharraf may be worth some posturing before the gallery, but may not be legally relevant. Can any amount of consultation justify any violation of the Constitution?

The case may be sensitive, but does the concept of loyalty include preventing an ex-COAS from facing trial? If the Army was indeed to move and impose martial law, would the trial stop? It probably would, but there would also be a public fallout. There would be the impression that the martial law was imposed to save one man. At the same time, the trial is about precisely this right: that the military can take over.

The trial is not about the fact. The raw ability to overthrow the Constitution will exist even if Musharraf is found guilty of high treason. However, the right of the Army to intervene if its chief feels that government is being conducted badly enough is being threatened. The concept of the COAS as a breed apart, is also being challenged.

However, the idea that a former COAS cannot be tried, may well rest upon the Raj-era exemption to all its soldiers from having to appear personally in court in civil cases. There is also the Army Act provision which makes soldiers accused of offences under the Penal Code, triable by a court martial, not a civilian court. That this does not apply to offences for which a special court, does not seem to count. This might also explain the apparent air of entitlement, with which Musharraf is trying to escape appearing before a civilian court. It might also explain the threats, perhaps deliberately kept vague, to bring others before the court, as if there is some equivalence between a civilian summoned as a witness, and a retired general in the dock.

It is also worth noting PML(Q) chief Ch Shujaat Hussain’s pleas that the references to treason be eliminated because an Army chief could not be guilty of treason. While indeed it is unheard of for an Army chief to be engaged in photographing documents surreptiously, or putting a microfilm in a hole in a wall, or engaged in any of the mundane tasks of espionage, Ch Shujaat shows that he has not understood that treason also covers betrayals of the Constitution.

The argument advanced by Musharraf’s lawyer, the redoubtable Ahmad Raza Kasuri, that Musharraf may be guilty of violating the Constitution, but not treason, shows that they may be missing the point: violating the Constitution is treason, and high treason for that matter. But then, Musharraf seems to wish, in this trial, to show to the institution he headed his right to its sympathy.

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