Who Is on Trial? Musharraf or Pakistan Army?

Who Is on Trial? Musharraf or Pakistan Army?
By Dr Shakil A. Rai
Los Angeles, California

 

There is a persistent effort in the media to portray Musharraf’s trial as an attempt to humiliate and disgrace the Pakistan Army in the eyes of the people, the world, and above all in the eyes of the military personnel themselves. They are trying to show as if the former Chief of Staff and the Pakistan Army are synonymous and the two cannot be viewed, or put on trial, separately.

A group of junior military officers from the Command and Staff College, Quetta, led by a colonel met the Chairman o f the Senate Standing Committee on Defense and “expressed their concerns over the treatment of Musharraf and the perceived humiliation of the military.” According to a media report attributed to the Senate sources, “The military officers were of the opinion that under the Constitution, the armed forces could not be criticized." They were concerned at the "ridiculing of the army as an institution". 

Those who think Musharraf can be saved from his legal troubles only by hiding behind the Army are warning of dire consequences. One of them said, “Pakistan's higher judiciary, the politicians and the media are entirely focused on their own narrow interests and settling of old scores….. If they continue their business as usual…., it's quite probable that they will see the first-ever bloody coup in Pakistan's history with very negative long-term consequences…” Dangerous words, betraying desperation! 

The Musharraf sympathizers do not realize, or may be, they do not care that by doing so they are holding the Pakistan Army responsible for all he did as civilian president of the country. Even those illegalities and political blunders he committed after relinquishing the command of the army are being placed at the door the Pakistan Army. Can Pakistan Army be held responsible when Musharraf signed his political death warrant by entering into a deal with Benazir Bhutto? And he felt confident enough to relinquish the Army command and become a proper civilian president. Not realizing that by giving up the uniform he was knocking down the very power base that had brought him there and sustained him in that position. Is army accountable for the emergency declaration of 2007, dismissal and incarceration of sixty judges of the superior judiciary? Was Pakistan Army responsible for the security or lack thereof for Benazir Bhutto, or the pursuit and death of Akbar Bugti? Musharraf’s legal troubles stem from these four cases, and Pakistan Army was not involved in any one of them in any manner.

Is anyone questioning Pervez Musharraf’s decisions in the military affairs as Chief of Army Staff? No. What is being questioned, investigated, and tried is all related to his decisions in the civilian sphere as a civilian ruler. How then the military as an institution gets involved in this saga? When a military officer has a legal dispute in a civil or criminal court, as a claimant or respondent, does his involvement amount to the involvement of the military of which he happens to be a member? No. When there is a property-related case, an inheritance dispute, a family dispute, or an injury or murder case that for example occurred in the officer’s home town, will it be treated as a military case? No. The officer is there in his individual capacity as a member of the civil society, and not as a military officer. And there he is at par with other civilian respondents. 

A case where the military high command could be held accountable, both collectively and individually, was the military takeover of October 1999. That issue is not being touched. The obvious reason is that it would bring the army high command before the court of law, and bring them into disrepute for overthrowing a lawful government in violation of the Constitution. We are pretending as if that coup d’état never happened, and hence no question is being raised. 

There is no question that General Musharraf must face legal and logical consequences of his deeds if Pakistan has to get out of the vicious cycle of military interventions. If civilian chief executives can be arrested, tried, exiled, and even executed why there should be an exemption for someone who happens to have a military background. After all Musharraf claimed to have won presidential election through a free and fair democratic process. He insisted on his civilian credentials as head head of state, even when he was also an Army Chief. There is no justification to claim that by trying Musharraf in a civilian court for his alleged wrongdoings as a civilian ruler, the esteem and reputation of the Pakistan Army is being endangered. 

There is however danger in the manner the court proceedings are conducted, and the way the former president is treated by the bench and the bar. Humiliation, real or perceived, of General Musharraf can have negative consequences. The judges have to go an extra length to prove that they are not motivated by personal vendetta, and are only trying to uphold the law by giving a fair and transparent trial to the accused. 

To begin with Justice Shaukat Aziz Siddiqui, judge of the Islamabad High Court, should not have sat on judgment in a case where he had an accused in the dock who was his erstwhile tormentor. The judge cancelled General Musharraf’s bail, ordered his arrest, and asked the prosecution to add Section 6 of the Anti Terrorism Law to the case, thereby making the offense non-bailable. Attorney Shaukat Aziz Siddiqui as a leader of the Rawalpindi Bar Association was one of the leading voices against the dismissal and incarceration of the judges in 2007, and he was imprisoned by General Musharraf for his vociferous campaign. 

Judicial ethics demand that in a case like this the judge should have recused himself and had let another judge preside over. It is only appropriate that a judge should recuse himself if he has a personal bias or prejudice concerning a party to the lawsuit. There is perceived bias not only in the case of the personal background of the judge and the accused, but also in the nature of the case. The case for which General Musharraf appeared before the court was the same dispute that had led to the imprisonment of the Attorney Shaukat Aziz, Siddiqui who is now a judge. The situation demanded to be doubly careful in the dispensation of justice: Justice must not only be done, it must be seen to be done. Perception of the truth matters as much as the truth itself. 

Second, the conduct of the ‘janissar lawyers’ is conduct unbecoming. Their rowdy behavior has won them no friends, nor enhanced their stature as upholders of juristic values. By adding insult to injury the boisterous bunch among legal fraternity may have proven their uncalled for loyalty to some on the bench but have served to sober purpose in advancing the rule of law. It is incumbent upon the bench to restrain the bar when the accused is harassed at their hands and that too within the court premises. 

The military leadership has conducted itself with a dignified detachment from the court proceedings. They have maintained their distance the former chief who is in trouble with the law for non-military matters. However, if the shadows of personal bias lengthen, and the perception of vendetta gains more ground, there can be more than a murmur in the ranks. It is imperative that the trial of General Pervez Musharraf is conducted in a manner which is fair, transparent, and proves his guilt beyond a doubt, or acquits him honorably. 

The trial of a former President of the Republic and the Chief of Army Staff is a great challenge, and an equally great opportunity. An honorable, professional, and fair conduct of this trial will win respect for Pakistan, and its judiciary, whose legal history is known for little more than inventing the law of necessity to cover every major act of illegality. 

A lot has changed since the execution of Zulfiqar Ali Bhutto, and the justification for the latest military takeover in 1999. At a time when the Pakistan Army is fighting terrorism and insurgency at home, bracing itself for a new situation that emerges in the region with the withdrawal of the NATO forces from Afghanistan, and when the country is so close to a historic general election, a military coup is unlikely. This perception and expectation should not be taken as a license to unleash our baser selves to heap insult on an accused whose word was law of the land, not so long ago. 

e-mail- drshakilrai@gmail.com