Zardari has done it again. For the second time, he has reneged on his solemn commitment to restore the dismissed judges within the agreed timeframe through a parliamentary resolution. On the last occasion, he wriggled out saying the judges could not be restored without a constitutional amendment. We have not heard from him yet why he has broken his word again, but according to reliable media reports, he has linked the question of restoration of the judges with immunity from prosecution for Musharraf and possibly his own candidature for the office of president and has again raised a linkage with constitutional amendments.
Zardari has not explained what the restoration of judges has to do with an amnesty for Musharraf or why Musharraf should not be brought to justice for his deeds. But there is a simple explanation, which can be summed up in three letters: N-R-O. Although Zardari has been acquitted under the NRO on a whole raft of corruption charges, he knows that the validity of this ordinance is highly questionable and could be overturned by an independent judiciary. Therefore, if the Dogar court, which has upheld the ordinance, is to make way for a properly constituted Supreme Court, the least that Zardari would like is that the judgements of the PCO judges and the validity of the NRO should be protected. That was the principal aim of Naek’s constitutional package, though it was camouflaged – poorly – as a measure to restore parliamentary democracy. Since these proposals have not been adopted, the attempt of the PPP leadership now is to give validity to the ordinance through the back door under cover of immunity from prosecution for Musharraf which validates all his unconstitutional acts under the PCO and the NRO.
In advocating immunity for Musharraf, some of our politicians have drawn a parallel between the move to impeach him and the pardon given to US President Nixon in 1974 after his resignation when faced with the near certainty of impeachment and conviction. True, both Musharraf and Nixon faced impeachment. But the similarity stops there. Nixon’s sin was that he ordered a cover-up of illegal campaign contributions, wiretaps and break-ins. Another American President, Clinton, was impeached on grounds of perjury and obstruction of justice and was acquitted. The alleged offences of Nixon and Clinton are juvenile pranks compared with the misdeeds of Musharraf, which include high treason, the most heinous crime known in criminal law.
Article 6 of the Constitution declares that anyone who subverts the Constitution is guilty of high treason. The punishment for this offence is laid down in the High Treason (Punishment) Act, 1973. It was precisely for military usurpers like Musharraf that this Article was inserted. To allow him to escape now without answering for his alleged crimes would make a complete mockery of the Constitution; and it would encourage future military adventurers by sending the signal that there would be no accountability for them. This would be a blunder for which future generations might have to pay the price. Musharraf’s trial, on the other hand, would deter others of like mind by serving notice that you can run but you can’t hide.
Musharraf did it not once but twice. Through the 17th Amendment, he sought to give himself immunity for his first coup. Article 270AA (4) says that no person can be prosecuted for any act done in pursuance of Musharraf’s first martial law. But since this Article does not stipulate that it is to take effect “notwithstanding anything contained in the Constitution” – as in so many other places where there is a departure from the general provisions of the Constitution – it is at least arguable that the language of Article 270AA is only meant to protect lower level functionaries and does not overrule the specific language of Article 6 for the coup leader. In any case, there is no legal hindrance to Musharraf’s prosecution for the second coup.
It is being claimed by some of Musharraf’s former aides that he had obtained promises of legal immunity from the ruling coalition before he agreed to resign. However, Naek has denied that, saying there had been “no deal” with the retired general. We do not know which side is telling the truth. But even if an amnesty was promised by Zardari, it is invalid because that would be unconstitutional.
The demand that there should be no revenge against Musharraf is absolutely right. There must be no show trial like the one that he orchestrated after seizing power. He must be given the best legal advice and a completely fair hearing. If his former legal advisers (the Pirzadas and Qayyum) now abandon him, the government should pay the fees of any other lawyer of his choice.
One of the ugliest features of the last days of Musharraf’s rule was the way he tried to get the army to take his side in a possible resort to Article 58(2)(b) and sought the support of foreign countries (US, Saudi Arabia, even Britain) to save him form the wrath of the people. He also sought Dogar’s support but about that, the less said, the better.
It is more or less confirmed that the message from the army chief that it would not take Musharraf’s side if he dissolved the National Assembly played a decisive part in his decision to quit. The Sunday Times reported last week that the military also tried to broker a deal that would allow Musharraf to retire with immunity from prosecution and that it would not allow its former chief to be “humiliated”. The army passed its first test by telling Musharraf that it would stay neutral if he resorted to using Article 58(2)(b) — however, there will be more tests coming, particularly if Musharraf is put on trial. It would regain a lot of the public standing it lost under him if it stays out of any deals to protect him from legal process.
In his desperation, Musharraf also did not shrink from involving foreign countries in Pakistan’s domestic politics, bringing discredit upon the country. He asked for a written agreement, to be signed by him, Zardari and Nawaz Sharif and guaranteed by at least two foreign governments, to give him immunity from prosecution. He tried to telephone Bush and “other senior administration figures” (presumably Rice). (They refused to take his calls, the media reported.) A former British ambassador to Pakistan and the Saudi intelligence chief were also involved by Musharraf in his search for a safe exit.
He has now reached the end of the road. He may be free in a technical sense but the only safe place for him outside the former Army House where he is now confined is exile. Abandoned by friends, reviled by the people and facing an uncertain future, he now joins the other former military dictators (Ayub, Yahya, Zia) in the dustbin of history. Like them, Musharraf too came as “saviour” and left the country’s institutions in chaos: a constitution that has been put through the shredder twice, a judiciary that is dysfunctional, a military that became deeply entangled in domestic politics and a system of accountability of the political class that stands completely discredited. Musharraf’s much-vaunted economic miracle has burst like a bubble. In place of the promised “enlightened moderation,” there is rampant terrorism, sectarian strife and insurgency.
The task of rebuilding the institutions crippled by Musharraf must begin immediately. The first priority should be the judiciary but Zardari’s delaying tactics are a bad augury. Now comes some more bad news: his possible candidature for the office of president. If Zardari became president, that would be harmful for parliamentary democracy because a president who heads the largest political party will also be the most powerful figure in the country. That would undermine further the position and authority of the present Prime Minister who notionally heads the government. Besides, Zardari’s habit of concentrating decision-making in his own hands and ruling through a small coterie of loyalists without regard to competence and institutional structures will take cronyism to new heights and emasculate parliament.
According to the Constitution, the president represents the unity of the Republic. Therefore, he has to be a man of high moral standing who is above party politics. Zardari is hardly the person whose name springs to mind in this connection. There is also the likelihood that if Zardari becomes president, the PPP may not pursue the constitutional amendments necessary to restore the system of parliamentary democracy to which the parties committed themselves in the Charter of Democracy. That would mean more political strife, something we can ill-afford in the present conditions.
The writer is a former member of the Foreign Service of Pakistan. Email: firstname.lastname@example.org
Source: The News, 27/8/2008