The indictment finally

Source: Published in Current Affairs on Monday, April 7, 2014

THERE is no reason to be neutral about the Musharraf trial. This trial is as much about Musharraf as it is about who possesses the power to alter the compact between the citizen and the state in Pakistan. The crisis of public morality and ethics in this country is caused not because we are too judgmental in public matters but because we are not. Our judgement is reserved for matters mostly private. Why should citizens who bear allegiance to the Constitution not have a view on the Musharraf trial?

In the interest of disclosure, there is nothing neutral about what follows. Musharraf is rightly being tried for treason. If convicted, in accordance with due process, he must be made to serve his sentence. The prescribed punishment for treason is death or life imprisonment. As someone opposed to the death penalty, one would like to see Musharraf behind bars for life. Not because Musharraf is evil, but because what he did was unconstitutional and how we deal with him will shape the kind of country we want our kids to grow up in.

None of the arguments made by Musharraf’s apologists support the view that Musharraf is innocent or deserves to be accorded preferential treatment. If you delve deeper there are essentially two arguments in his support. One, that Pakistanis are not fit for democracy. We deserve to be dealt with a stick and it is in our own interest to be subjected to ruthless authoritarianism. Thus there was nothing wrong with what Musharraf did. His flaw was that he wasn’t ruthless enough.

And two, Musharraf’s trial is not about rule of law, constitutionalism or justice. It is about revenge. Sharif and the judges are meting out victor’s justice. But we are essentially an opportunistic and morally corrupt lot who will dance to the tune of whoever assumes power by any means, fair or foul. We lionised Ayub and Zia, and also Musharraf post-1999. And we are doing it again to please the new masters by beating up on a poor general whose chips are down. In other words, let’s continue being the sordid hypocritical lot that we are and let Musharraf slide as well.

The predictions that Musharraf will be taken off the ECL and allowed to flee or else will be granted pardon by Sharif if convicted, are based on such appraisal of our leaders and nation. We seem comfortable with manifestations of elites being more equal than commoners. A former army chief who ruled this country for almost a decade, Musharraf is no ordinary man. So Pakistan’s universe — foreign friends, guardians of ‘ideological and territorial borders’, the ruling elite across institutions — will conspire to ensure that Musharraf is not reduced to a commoner.

The remaining arguments are all in favour of holding others accountable instead of letting Musharraf off the hook. Can two wrongs make a right? If 1999 was the original sin, why not pressure the PML-N into holding those saboteurs of the Constitution accountable instead of asking it to let Musharraf be? Judges who decided the Zafar Ali Shah case wronged the Constitution when they eagerly handed over to Musharraf the authority to amend the Constitution, which they neither possessed nor was theirs to give.

Can’t Musharraf call them as witnesses and argue that he was made to believe by judges themselves that the Constitution wasn’t something sacred that an all-powerful general couldn’t tinker with? If we have a checkered history of neither standing by the Constitution nor defending the principle of democracy, can’t we start now? If Musharraf or other army chiefs blundered in the past, must the present high command justify a wrongful past? If our judges and politicos were once complicit, must the present lot be stopped from treading a corrective path?

“No one pretends that democracy is perfect or all-wise,” Churchill had famously said. The world settled for democracy after all other forms of government were tried and found wanting. If Zardaris and Sharifs are running a rotten show, shouldn’t we push to heal our state of democracy instead of justifying what Musharraf did? Opposition to the Musharraf trial is fuelled by Pakistan’s upper middle class’s veiled disdain for average Pakistanis, a lot it finds unfit for democracy and in need of being civilised by authoritarian messiahs.

If Musharraf were an Allah Ditta and not a general no one in their right mind would even fathom the idea of letting him off the ECL. Those in support of his name being taken off are not arguing that he is not a flight risk, but that he should be enabled to flee in the ‘larger national interest’. Musharraf’s lawyers would need to be creative with legal arguments in a court to establish that keeping him on ECL is an abuse of authority, especially after his established conduct of refusing to appear before the court willingly.

In a world that isn’t made up of angels, ‘let he who has not sinned cast the first stone’ is essentially a claim for impunity by the powerful. Do we not hear such moral objections in the hundreds of cases decided by courts each day? It is about time we begin developing a consensus in Pakistan that all authority must flow from the Constitution and anyone who refuses to profess allegiance to it is as much of a traitor as someone who refused to profess allegiance to kings in the age when men ruled, not law. n

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Written by Babar Sattar

Author Information: The writer is a lawyer.

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