Musharraf post-July 31 2009 —Dr Hasan-Askari Rizvi

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Revenge appears to be a consideration for the demand from some political parties and political circles to put Pervez Musharraf on trial for high treason. Such negative sentiments tend to surface in Pakistani politics from time to time; in most cases this trend has had negative consequences for the political process

The Supreme Court announced a history-making judgement on July 31 which rejected the tradition of providing legal cover to the military’s assumption of power under the Doctrine of Necessity. The fourteen-member bench declared that General (retd) Pervez Musharraf’s decision to impose emergency and replace the Constitution with provisional constitutional order (PCO) on November 3, 2007 was illegal and unconstitutional. All actions taken by the Musharraf government during the emergency period — November 3-December 15, 2007 — have been knocked out.

The major effect of this judgement is on the judiciary itself, especially on the judges who took oath under the PCO or were appointed by the then Chief Justice Abdul Hameed Dogar, whose appointment under the PCO has been declared null and void.

The judgement is not expected to cause any upset for the on-going democratic governments at the federal and provincial levels because these have been given legal protection. The same legal cover has been given to some other actions taken during and after that period. The government has been asked to seek parliamentary approval for various ordinances issued under the emergency.

A similar judgement was given by the Supreme Court in April 1972, declaring the military take-over by General Yahya Khan “entirely illegal”, and describing him as a “usurper.” However, the Supreme Court “condoned” four categories of actions taken by the Yahya regime, which protected most actions and orders of that government. The latest judgement has also exempted some specified categories of administrative decisions, judicial actions and routine measures. However, the protection is more limited than was the case in 1972.

This judgement will give momentum to the demand of some political parties and political circles for the prosecution of Pervez Musharraf for violating the constitution under Article 6 of the Constitution.

Article 6 of the 1973 Constitution describes high treason as any attempt, or direct or indirect help to an attempt, to abrogate or conspire to do so, or subvert the constitution “by the use of force or show of force or by other unconstitutional means.” In September 1973, parliament passed a law that provided death sentence or life imprisonment for subversion of the constitution as described in Article 6.

This article could not be applied to General Zia-ul Haq because his military take-over (July 1977) was legitimised by the Supreme Court in the same year. Later, the parliament, established in 1985, provided legal cover to his military rule under the 8th Constitutional Amendment. General Musharraf’s take-over in October 1999 was also given legal cover first by the Supreme Court in 2000 and then by parliament in the 17th Constitutional Amendment in December 2003.

Musharraf’s emergency in November 2007 was approved by the Supreme Court, reconstituted under the 2007 PCO, headed by Chief Justice Abdul Hameed Dogar. This reconstituted court under the PCO has been knocked out by the latest judgement. Parliament, then dominated by pro-Musharraf elements, passed a resolution in favour of the emergency; it did not give indemnity by incorporating the PCO and all actions there-under in the constitutional framework. The new parliament that came into existence after the February 2008 elections neither endorsed the November emergency nor formally rejected it.

Some lawyers, the PMLN, the Jama’at-e Islami, Pakistan Tehrik-e Insaf and some other groups want the government to invoke Article 6 to prosecute Musharraf with reference to the Supreme Court judgement on the November 3, 2007 emergency.

Revenge appears to be a consideration for the demand from some political parties and political circles to put Pervez Musharraf on trial for high treason. Such negative sentiments tend to surface in Pakistani politics from time to time, both under civilian and military rulers. In most cases this trend has had negative consequences for the political process.

Some political circles think that they can kill two birds with one stone by demanding the trial of Pervez Musharraf: disgrace Musharraf and at the same time apply political pressure on the present PPP-led federal government because the latter does not appear to be in favour of prosecuting Musharraf. Further, some political circles think that this would also provide them an opportunity to question certain political arrangements, including the National Reconciliation Ordinance (NRO), which enabled the PPP leadership to return to Pakistan in October 2007.

The key question is the correlation between the prosecution of Musharraf and the non-interventionary disposition of the military in the future. Is this a foolproof method of ensuring continuity and stability of the democratic process? Another issue is how much energy the political forces should spend on settling the past scores.

One should draw lessons from the past rather than become its prisoner or use it to seek political advantages in the present-day context. Over-indulgence with the past leads to neglect of current societal issues and problems, or it leads to the flawed thinking that the present situation cannot be improved if the perceived past mistakes are not rectified. If one has undergone tough hardships in the past, there is a tendency to take a blinkered view of the past which makes it difficult to focus on the present day issues, which may be more critical to political stability and democracy.

Musharraf’s conviction does not offer a credible guarantee against direct and indirect military intervention in Pakistani politics in the future. Military intervention is a complex phenomenon which cannot be explained by a single variable. Overambitious generals are a cause but not the only cause of the expanded role of the military. The future of democracy is also linked to quality of governance and political management on the part of civilian leaders.

Direct military intervention is not the only option available to the military. It can influence the nature and direction of change from the sidelines. That is more likely in countries where anti-military sentiments are strong but civilian government falters in performing its basic obligations towards its citizenry.

The government faces several acute problems that need to be tackled if it wants to ensure continuity and stability. Religious extremism and militancy are the most serious internal challenge to Pakistani state and society. A violent separatist movement in Balochistan threatens civic order and stability in that province. The writ of the state has to be enforced in many parts of Pakistan and the state should not allow religious extremists to function as religious vigilantes.

The second major challenge is a faltering economy, plagued by power shortages, decline in industrial output, rising unemployment and increased socio-economic inequities, and declining investment. There is heavy reliance on foreign economic assistance which limits Pakistan’s domestic and foreign policy choices.

Another set of challenges pertains to social under-development and poverty, education, health, drinking water, sanitation and other civic amenities. These areas need immediate attention so that ordinary people feel that civilian democratic institutions are addressing their problems.

The judgement is likely to discourage direct challenges to the constitution. However, the future of democracy depends more on the performance of the political government rather than on spending energy and resources on who did what in the past and who should be held responsible for past failures. Instead of getting bogged down in the past, more attention should be given to addressing the current problems with an eye to the future.

Dr Hasan-Askari Rizvi is a political and defence analyst

Reproduced by permission of DT\08\02\story_2-8-2009_pg3_2


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