Why Musharraf deserved better

General Pervez Musharraf made his share of mistakes. As the army chief, he entered a near-war without informing the government of the day and seeking the approval of his prime minister. The deterrence held barely when he devised space for a near or limited war with India in Kargil. It compromised Pakistan’s strategic refrain that, “no war is possible between India and Pakistan for fear of a nuclear confrontation”. India on the other hand, looking for space for a limited war to assert its conventional arms superiority over Pakistan, found it an opportune example to follow; consider India’s doctrine of cold-start was meant for exactly this purpose and her aggression in IOK and the February 25 and 27 encounters of this year. Musharraf, thus, punched a hole in Pakistan’s strategy and scored an own goal.

He then forced Nawaz Sharif, his prime minister, out of power on October 12, 1999. For three long months after Kargil, Nawaz had dithered from taking the hard decision to sack Musharraf for exceeding his powers and putting Pakistan in harm’s way. The entire country hung by a tether. Eventually, a silly misstep gave Musharraf the opportunity to oust NS and assume control of the country. Musharraf abrogated the Constitution — an act of treason — but had that enjoined by a judicial decree permitting him to act as the chief executive and amend laws as necessary. Iftikhar Chaudhry sat on that bench. Later, the Parliament too sanctified the decision in violation of its own statutes by another amendment exonerating Musharraf by name. Most senior legislators today also served Musharraf’s parliament. Talk of a legal, constitutionally enabled armed coup.

His tenure as the head of state was benevolent. Perhaps more democratic than most democrats. He opened the society to greater freedom and transparency with media-freedom unseen in this country. He re-invoked the Constitution and ran a parliamentary government even as he sat above it in uniform as its president. He founded an effective local bodies system which enabled a wider participation of the people in governance at the grass-root level. He reformed the police through an exhaustive 2002 Police Order. The country and the economy did reasonably well under him as is historically inclined to under men in uniform. But then like all unrepresentative power wielders he met his day of reckoning.

Musharraf’s came by two mistakes: when he attempted to sack Iftikhar Chaudhry, the chief justice of the Supreme Court, on complaints by the Shaukat Aziz government of his unnecessary meddling in executive affairs which backfired into an institutional stand-off; and second, when unable to control the judiciary and its perceived overreach — especially staying Musharraf’s induction as the president for a second term through procedural delays which Musharraf imputed mala fide — he proclaimed an Emergency. An Emergency is constitutionally provisioned but suspends some fundamental rights and bestows special powers to the government to undertake measures to stabilise an inherently disruptive development. Musharraf included asking justices to take another oath of office under the PCO. Most including the CJ rebelled and were summarily removed. Hurdles removed, Musharraf went on to take his oath of office as the president for a second term under a new CJ.

The declaration of Emergency was a perfectly legal measure provisioned under the Constitution and the law. But for Musharraf to do so as the army chief rather than the president that he was, was patently illegal — something his detractors have held on to as the premise to indict him. He was at least careful in “suspending” the Constitution than “abrogate”, a term which constituted the offence under Article 6. Though subsequent governments closed on to him via the 18^th Amendment in 2010 when the word “suspend” and “held in abeyance” too was added to the list enabling his netting-in for treason under Article 6. The article was thus applied retrospectively in his case when he was indicted in 2014 under a law which was expanded in 2010 to include the nature of excess ascribed to Musharraf, for a crime which could at best be located in 2007, if not 1999. One of the judges poignantly observed the same, terming it mala fide amounting to miscarriage of justice in this case. The majority judgment and the sentence are thus patently unfair, fail the test of probity and violate the principles of jurisprudence.

Some disaggregation is in order. Declaration of Emergency is a legal act. Whether it was right under the circumstances is a matter of judgment. At worse, it was Musharraf’s mala fide to get back at those whose mala fide he suspected. The same Supreme Court had authorised him to contest the election which office when won by him was now being denied to him. Surely, the declaration would have been challenged in the courts and debated in Parliament, both perfectly within the ambit of law and Constitution, and may have been adjudicated against in all probability. He thus acted expediently in signing it off as the army chief. He should have been better advised. He risked his chances against the CJ and said so in a statement.

Musharraf’s original sin was to remove a democratic government and hold the Constitution in abeyance. That was treasonous. Declaration of Emergency was not. Yet that is what his treason is based upon. Legal and constitutional acts do not make for treason. The modicum of its application was wrong but to indict for treason, with the penalty of death, and then with an intensity directed in the detailed order betrays long-held venom than a decision based on legal argument. What was really incriminating has gone scot-free.

The Supreme Court’s full bench under Iftikhar Chaudhry ruled against the removal of judges under the PCO and annulled the decision; it declared the NRO null and void ab initio; it could have declared all provisions condoning the Musharraf martial law in the Constitution null and void and made Musharraf a criminal of the public and the Constitution. As it stands, the framed case and its weak premise, the lack of due process, and the alacrity in the nature of the decision and its intensity and the manner of its statement only smell of the distasteful and unsavoury. Such disregard for the tenets of justice can only be disruptive and preys on engendering institutional disharmony.

Musharraf has an attitude which irks many. He was a commando for whom opportunities slipped by without the chance for him to prove his mettle. Convinced he was destined for greatness he never could touch the zenith. Controversy shadowed him all along. He didn’t do too badly except for Kargil; that was self-destructive. He surely exhibited a swagger but doggedly fought the corner for Pakistan even when sick and frail. The widespread perception of being unfairly treated at the hand of the judiciary has only added sympathy and support for him across the country. Musharraf deserved better. He is no traitor. He can be faulted for judgment but not for being treasonous.

Published in The Express Tribune, December 22^nd, 2019.

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