The departure of Gen (retd) Pervez Musharraf abroad after his name was finally taken off the Exit Control List means that, at least until the next election, due in 2018, this particular cause of friction between the civilian government and the military, has been disposed of.
General Musharraf is someone on whom there are capital charges, and he has gone abroad as an under-trial accused on bail from the various courts trying him. He is also not just a former Chief of Army Staff, but one of the four heads of the Army to have taken over the government, and the offences for which he is being tried all relate to that period of rule. Indeed, the high treason charge which he faces was directly related to his having been COAS. It should be noted that his avoiding conviction for this particular offence would mean that future holders of the office of COAS would be relatively unrestrained by Article 5 of the Constitution, which defines any subversion, abrogation or attempt or conspiracy thereof, of the Constitution as high treason, and asked that Parliament prescribe a punishment. It did in 1974, in the High Treason Act, under which General Musharraf was being tried, and which prescribed death as the mandatory punishment.
By not having a coup equated with high treason, the door is left open for military rulers to claim they had acted in the national interest. There have been loud calls heard for the current incumbent, Gen Raheel Sharif, to take power. His oblique refusal, in the form of announcements of his intention to retire at the end of his tenure, which takes place towards the end of this year, has been interpreted as an act of forbearance rather than the routine inevitability it is supposed to be. At the same time, even though General Musharraf has been helped to avoid or delay trial on medical grounds by Army medical establishments, General Raheel’s tenure has seen two high-profile cases which indicate that there will not be any tolerance for corruption within army’s ranks. First, the NLC case saw two generals convicted and stripped of their rank. Admittedly, they did not do any jail time. Then former COAS Gen (retd) Ashfaq Pervez Kiyani’s brother was sought in the Lahore DHA land scam. True, while being the ex Chief’s brother was no guarantee of immunity, the ex Chief’s person remained sacrosanct. Thus it seemed clear that the military would not prevent any action being taken against General Musharraf for corruption, it would not allow him to suffer for anything else. This implies that the national interest argument remains.
This shows that the devotion to the national interest, which will reach its 50th anniversary in 2008, is an objection to personal enrichment, not bad decision-making. Corruption leads to bad decision-making, such that the interest of the taxpayer is not kept uppermost, but it is possible for a decision to be entirely honest, based on accepted criteria, but at the same time to be entirely wrong. Therefore, past military rulers are absolved of responsibility for their mistakes, so long as it can be shown that they did not make money by that decision.
However, the episode shows once again that having held high military rank confers immunity. It seems the objection is not so much to the punishment, as to the indignity inherent in it. The military does not claim that coup-making is legal; but it does claim that a former COAS must not be put on trial. The only previous example is that of Gen Tikka Khan, who was put under house arrest after the 1977 coup (he had been a PM’s Special Assistant, an office he assumed after retiring as COAS in 1976). A small Army detachment was assigned to guard him, and he swore at it roundly repeatedly. The det commander complained (informally, of course) up the chain of command, and the incumbent COAS, President Ziaul Haq himself, telephoned General Tikka personally, and requested, not ordered, him to speak less brutally to the det. Even if an ex-COAS opposes military rule, the Army will handle the matter. The idea is that the military has its own well-set procedures of accountability, and will not allow any civilian interference in this. By this token, General Musharraf should be penalized only after a military court has exercised jurisdiction over him. There has even been objection to the ‘high treason’ label attached to the charges. Treason is supposed to be something like passing military documents to a foreign power, not a COAS looking after the national interest.
This leads to a paradoxical conclusion, that the military actually underwrites the Constitution. It should be noted that the two times there has been a military takeover despite the 1973 Constitution being in place, apart from the provisions concerning the legislatures and the formation of the executive, the Constitution has been kept in place, with the Legal Framework Orders of 1977 and 1999 both using the 1973 Constitution’s provisions as far as possible. Also, though apparently so different, both Zia and Musharraf restored the 1973 Constitution.
That General Musharraf was brought to trial, that the charge of high treason was framed at all, is sanction enough. Even if the trial had meandered into inconclusiveness before his departure, an inconclusiveness made more certain by his departure, it has still had a deterrent effect. There does remain the matter of the punishment being meted out, but the military has already established that punishment can only come from the Army itself. Only when the COAS has no hope (or intention) of taking over, will he initiate the process of punishing a predecessor. That might well mean that Pakistan will have to suffer further military takeovers in the future. There is a sleight of hand involved: the military underwrites the democratic constitution, to the extent that it will take over if the political parties do not play by the rules. At the same time, its intelligence agencies have penetrated the parties, and make sure they do not. This allows takeovers.
General Musharraf thought in 2013 that he could do well in elections, if not necessarily be elected to office, at least to have enough seats in Parliament to play a significant role in government formation. At the time, he faced charges of the murders of PPP chief Benazir Bhutto and JWP chief Akbar Bugti. However, the high treason charge was added by the Supreme Court. It should not be forgotten that the Nawaz government, which let General Musharraf go abroad, was merely fulfilling orders of the Supreme Court by prosecuting him. While political leaders, especially Mian Nawaz, are counted as losers because of this departure, it seems not enough stress has been placed on the failure of the Supreme Court to ensure the protection of the Constitution. The Army has saved its former Chief, but at the expense of the Constitution. The impression of impunity being extended to any takeover has again been created, and it has been shown that no general, no matter how retired, will be forced, not even by a civilian dispensation, to face trial in a civilian court.

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

By not having a coup equated with high treason, the door is left open for military rulers to claim they had acted in the national interest.