The announcement of a trial of Gen (retd) Pervez Musharraf for subversion of the Constitution by the Interior Minister has revived the old debate of whether there should be a trial, but apart from that eternal issue, opponents of a trial also argued that the announcement was timed to coincide with the government’s inaction, or at least delayed action, over the Rawalpindi Ashura tragedy. The trial will now depend on the incoming Chief Justice, rather than the new COAS, though the latter will determine whether the Army will protect General Musharraf.
Be that as it may, it must not be forgotten that the government acted only because it was compelled to do so by a Supreme Court decision. The Supreme Court had ruled that Gen (retd) Musharraf was to be tried under Article 6 of the Constitution, and had elicited from the Khoso caretaker government that it had no intention of prosecuting, leaving it to the government elected on May 11. The Nawaz government has no reason to love General Musharraf, and it has no desire to blot its copybook with the Supreme Court any more than it has done in the local bodies election case. Hence its writing to the Chief Justice of Pakistan to ask the High Court Chief Justices to nominate judges to the court that will try him. For the federal government, this beats having the Supreme Court nominate a court, appoint a prosecutor and begin a trial. It is true that the High Treason Act 1975, which governs such a trial, does not envisage such a role for the Chief Justice, but numerous judgements confirm that nominations of high court judges must be made by the chief justices, and the government’s seriousness was shown by this, for it did not want to give the defence the chance of objecting that the court was improperly constituted. It also showed the Supreme Court its resolve. It must not be ignored that the Supreme Court has become the primary audience for the federal government.
This also might help explain why it is choosing to prosecute only for Musharraf’s second imposition of Emergency, not the first. First, though there is naturally in Mian Nawaz Sharif an animus against General Musharraf for ending his term so abruptly, as well as among his many supporters, not to mention those who have returned to office after staying loyal to him during the Musharraf years, the question of animus cannot be raised as a defence against the prosecution. It might be used against the court itself, and Musharraf might try to put the entire judiciary on trial, as one of the reasons he gave for imposing his second emergency was the judiciary’s conduct. That brings up another difference between the first and second impositions of Emergency. The first was against the government of the day, the second was against the judiciary. As has happened historically, the judiciary has guarded itself against the Executive very jealously, and its clashes have been over this. It went to the extent of removing a Prime Minister, because he would not obey its orders. It may have sided with military coups in the past, but because these coups not only left the judiciary untouched, but sought validations for its deeds from it.
General Musharraf obtained that validation for his imposition of martial law, and it is possible that he will not be prosecuted for that, because of the validation it received in Syed Zafar Ali Shah’s case. The validation given in the Sixteenth Amendment, in the form of an indemnifying article, was repealed by the Seventeenth Amendment. However, the Supreme Court judgement may be still held to hold the field. The second imposition of Emergency was not validated by either the Supreme Court or Parliament, and there is nothing to stop the judiciary (through the trial court) from examining its validity.
It is also noticeable that the argument used when the decision was first made, that a trial would involve virtually all officials of state at the time, particularly those that Musharraf had claimed to have consulted before taking the step. The permanent officials have retired, as have many of the elected. However, this fear does not seem to be having as much effect this time round, with the nation seemingly ready to have the Great and the Good explain their conduct. It should be noted that consultation, if proved, will not justify the imposition, it will merely establish the consultee as an accomplice.
This would not be the first trial of high officials in the Muslim world. The Ergenekon trial concluded in Turkey only this year, in which flag officers of all three services were convicted. Ergenekon was a secret organization which was guilty of stirring unrest to carry out coups. It is perhaps not entirely a coincidence that Musharraf is in the Turkish mould, having spent part of his childhood there, and imitating its military not just in falling in with the US regional agenda, but also regarding its secular outlook under the rubric of ‘enlightened moderation’ as not just correct, but also the path on which he was destined to bring Pakistan.
The Supreme Court wants to operationalize Article 6 of the Constitution, which declares any subversion, abrogation or suspension of the Constitution to be high treason, punishable by death. Trial procedure was left to Parliament, which duly passed the High Treason Act 1974. However, neither article nor act were enough to stop two COASs from taking over, and the four men holding the office between them and the one after Musharraf (the present incumbent) of being suspected of hankering to take over. One reason for this may indeed have been the failure of any authority to hold the first coupmaker accountable.
The paradox is that the military mind is very legalistic, and perhaps puts legal authority on a higher pedestal than the average civilian. Yet the military takes over, so far without fear of punishment. This legal issue was clear from the time of the first takeover, by Ayub Khan in 1958, when the Supreme Court ruled that legal authorities had a choice between leaving or obeying. (it is perhaps no coincidence that Musharraf was commissioned under Ayub’s Presidency). Though there is available to the defence the argument that when the takeover occurred, Article 6 did not mention ‘holding in abeyance the Constitution’, and he cannot be tried retroactively, he should also be aware that court martial verdicts are determined in advance, with the presiding judge finding out the wishes of the officer ordering the trial. Provided that appropriate evidence is adduced by the prosecutors, no clever legal arguments are allowed to get the accused off. However, civilian courts work differently, and issue second imposition of Emergency of whether the constituted high treason, will depend on just such legal arguments.

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