In the evolving course of history, nation states, from time to time, are faced with the choice of confronting their own darkness. South Africa, after decades of apartheid, had to come clean in the Truth and Reconciliation Commission; United States, in the face of an every growing power of the Presidency, had to make amends after the Watergate Scandal; and Germany, after years of bloodshed and violence, had to confront the horrors of the War at The Nuremberg Trials. Painful as these episodes were for the respective nations, they provided people with an opportunity – in a moment of human honesty – to bury the burden of a regretful past, and set sails for a brighter future.
In a country where military generals have frequently abrogated the Constitution, and ruled for almost half of the nation’s 67 year history, the trial of General Musharraf is an opportunity to confront the mistakes of our past and resolve never to repeat them again.
Over the past some years, Pakistan has been flirting with the idea of trying a military General for the charge of High Treason. And this desire, while muted in the past, has reached a clamoring pitch over the recent years, as resurgent democratic institutions, including the judiciary, once again take center stage in national politics. Supported by a civil society that is ever more cognizant of its rights, and fueled by a fiery media, the demand for trying Musharraf for high Treason, finally spilled over the brim last week as the PML-N government announced its intention to commence the trial under a Special Court constituted for the purpose.
To this end, in accordance with directions of the honorable Supreme Court, the Federal Government, through the FIA, had earlier concluded that there exist sufficient prima facie grounds to charge Musharraf with treason, per Article 6 of the Constitution and The High Treason (Punishment Act, 1973, for his actions on 3rd November, 2009. For the purposes of the High Treason trial, per section 4 of the Criminal Law Amendment (Special Court) Act, 1976, the Federal Government is required to “set up a Special Court”, to be “composed of three persons each of whom is a judge of a High Court”. Pursuant to this requirement, the Federal Government approached the honorable Supreme Court, and requested the Chief Justice to nominate three judges. Demonstrating political maturity, the Chief Justice asked the respective High Courts to nominate one judge each, for possible inclusion in the Special Court, and forwarded all five names to the government to pick any three from amongst them. The government, and specifically the Prime Minister, picked three of the five recommended judges, and announced that the Special Court shall conduct General Musharraf’s trial in Islamabad, at the premises of the Federal Shariat Court. Also, to complete all modalities, the government has appointed Akram Sheikh, a vocal loyalist of PML-N, to serve as the Special Prosecutor for this trial.
The process has, almost naturally, been criticized by the Musharraf camp, which has (reportedly) decided to challenge the constitution of the Special Court, on the ground that the nominated judges hold a deep bias towards the retired General, and cannot be expected to do justice in his case. But this challenge only seems notional in nature, and is not expected to result in a change in the constitution of the Special Court.
Also, the government has had to face some criticism about approaching the Chief Justice for nomination of the Special Court judges, as opposed to exercising its own prerogative to do the same. In this regard, while approaching the Chief Justice is not a requirement of any law, this cautious move of the government is reflective of two ideas: 1) that appointment of judges to the Special Court is not seen as some vindictive exercise by the government against a historical enemy, and 2) that involving the Supreme Court in this process, from the very outset, lends a certain degree of protection against subsequent challenges to the constitution of the Special Court.
With the stage set, it is time that Musharraf’s trial be taken to its logical conclusion: not only in fulfillment of the mandate of the Constitution, but also in recognition of the fact that if we do it right – in a manner free of fear or favor – this trial will be cathartic in nature, shedding light on the mistakes of our past, and serving as a cautionary tale for any aspirant savior generals of the future.
It must be recognized that this trial holds the possibility of breaking several deeply held myths of our democratic dispensation. Through this trial, we can demonstrate, once and for all, that Military Generals, and their assaults on our constitutional fabric, do not exist outside the gates of law. That in our country, regardless of one’s institutional backing or might, everyone is equal at the altar of law. That no one shall be allowed to violate the sacred covenants of the Constitution. That the Constitution and its provisions are not some meaningless words written of some obscure text, never to be implemented in practice. Instead, the letter and sprit of the Constitution forms the very ethos of our everyday lives. Through this trial, we can conclusively demonstrate that the culture of striking behind-the-door ‘deals’ is finally over. That justice in this land, is done in the light of day, and not through some settlement struck in the unseen rooms of GHQ. That law and the Constitution are larger and more powerful than any individual or institution in this country.
In so doing, however, we must be careful, however, to ensure that this exercise of national healing is not tainted by vindication of the politics, or for that matter, of the judiciary. The desire to see Musharraf behind bars (or hung?) cannot be allowed to disregard the mandate of law or principles of natural justice. The retired General deserves the full protection and compassion of the law, to the extent available to any other citizen in his place. We must remember that in Turkey, the conviction of Adnan Menderes and Abdullah Öcalan in high treason proceedings were, 20 years later, declared to be a violation of the European Convention of Human Rights.
We must resist the temptation to make similar mistakes. The national and judicial resolve, in regards to the due process of law, is tested the most when applied to those who we despite as a nation. Still, the endeavor of law is to ensure that justice, to the most vile, is not turned into a lynching exercise. And that the letter and spirit of the law be followed, even more conscientiously when trying the villains. This, is the real test of ‘let justice be done, though heavens may fall.’

 The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.

saad@post.harvard.edu
 @Ch_SaadRasool