General (retd) Pervez Musharraf may have fallen from grace, and may have had to undergo arrest. But, perhaps, more damaging is the fact that his arrest, comfortable as it might be, has sent a signal to all officers that their immunity is not to be assumed.
Perhaps, there are lessons to be seen in the only other chiefs to be detained: Ayub Khan, Yahya Khan and Tikka Khan. Two were former Presidents as well, and both settled in Rawalpindi after leaving office. Both were not allowed to leave their houses, just as General Musharraf is not allowed to leave his Chak Shahzad farmhouse.
Tikka Khan, like Musharraf, had entered politics. However, whereas Musharraf had founded a faction of the Muslim League, the All-Pakistan Muslim League (APML), Tikka had entered the PPP, where he was to become Secretary General. After retirement in 1976, he had been appointed PM’s Adviser on Defence, which meant that when Zia imposed martial law he was a member of Bhutto’s team that was placed under house arrest. However, that detention had not been by police, but by soldiers, and any complaints they had were passed up the chain of command, and the CMLA himself took up the matter with General Tikka. Another thing Tikka had in common with Musharraf was that both were gunners, and indeed were the only two officers so far from the Corps of Artillery to have made Chief.
The peculiar horror with which the episode was seen is not just because it was unprecedented, but the army officer’s horror of involvement in criminal cases is well known. It meshes with the general middle-class horror of such involvement, for it means an end to government service that is a staple for the middle class, and certainly to promotion, which is so important for the armed forces. Though presumably Musharraf can attain no further promotion, the horror remains, as well as the disgrace, even though the experience itself did not go beyond what previous ex-Chiefs who were also ex-Presidents went through.
Musharraf is not the first retired COAS to have had a run-in with the courts, though it is true that he is the first to be accused in a criminal case. General (retd) Aslam Beg was actually convicted of contempt of the Supreme Court, being sentenced to confinement until the rising of the court, back in 1993. Beg thus received the same sentence that led to Yousuf Raza Gilani being ousted from membership of the National Assembly, and thus from the Prime Ministership, last year. General Beg was thus convicted of a serious enough offence, but at no time did he face the prospect of having capital charges levied against him. General Musharraf does.
It is also noticeable that Musharraf is the first Army Chief against whom criminal charges have been brought for happenings during his presidency. This may be because previous military rules were condoned by a provision of the 1973 Constitution. General Musharraf also had a condonation passed in the 18th Amendment, and then it was removed by the 19th Amendment.
The caretaker government has refused to take any action against Musharraf under Article 6, among other reasons because it requires action it feels should be left to an elected government, and secondly, because it is required by the High Treason Act that the federal government be the complainant. No official has been designated to act as complainant, or judge. However, that does not apply to the murder charges.
Will trying General Musharraf, or his experiences so far, mean that Pakistan might no longer be able to find a COAS? Highly unlikely. Will it mean that no future COAS will risk becoming President?
It must not be forgotten that the presence of Article 6 did not stop coups in 1977 or 1999. However, this is the first time there has been any talk of trying a coup-maker. As the constant effort to give legal cover to the various coups show, military men a deeply concerned with legality, and require legal cover for their actions. This is deeply ingrained, and contributes to the horror of arrest or trial, especially by civilian courts, that military men have.
Apart from the legal implications, there are the political. Despite having enjoyed dictatorial power from 1999 to 2003, and despite presiding over an elected system till 2013 where the Prime Minister was no more than his subordinate, there was no wave in favour of Musharraf on his return, or arrest. Whatever he or his party may say now, the APML was not going to be more than a bit player in the next Assembly, assuming it got there.
One is irresistibly reminded of Lieutenant General Hussain Mohammad Ershad of Bangladesh, a coup-maker who later entered politics. His Jatiyo Party was third in the Assembly, and though he was easily elected, his party was destined merely to be a partner of the Bangladesh National Party headed by Begum Khaleda Zia.
While obviously, Musharraf would be worried by the absence of any evidence of a mass following, it should also serve as a reminder to all military men that retirement is, indeed, the end. Opponents of military rule would take the lesson that the Pakistani people are now irretrievably opposed to military takeovers.
If this is so, it would be because military takeovers are as bad at solving the problems of the ordinary man as elected governments. However, that means the rule of law, which means avoiding all extrajudicial interventions. If any are carried out, they will have to be punished. Of course, in that event, the ability of the military to carry out a coup will be compromised. This means that those who look to the military for salvation from their situation, will not.
One of the consequences of adopting the rule of law is that no individual or institution is above it. Any arrest ordered by a court, has to be carried out. India, through the caste system, has a long history of applying the law differently to people, depending on status. The British privileged those natives who served in its armies, in terms of court appearances. The military has its sense of privilege from that era. General Musharraf’s arrest may be seen as a personal calamity for a proud man, whose critics accuse of vanity, but actually it is part of that process.
The caretakers are the executive. While they should not take steps that would lead to any intrusion into the domain of the elected government, they must execute the orders of the judiciary without fear or favour, and irrespective of who is affected. If any objection lies, it must be decided by the courts, just as much as the present case must be decided there, and nowhere else.
One of the arguments for letting off Musharraf is that it would open a Pandora’s Box. True, a lot of people, at least those who carried out the actual detention of the Prime Minister and the takeover of sensitive installations, would have to be tried, especially when it is recalled that at the time of the coup, General Musharraf was in the air. A lot of officers, and even other ranks, will find themselves on trial. Many will by now be retired. However, that might be needed if future takeovers are to be avoided.
The writer is a veteran journalist and founding member as well as executive editor of The Nation.