Dr Mubashir Hassan’s plea to seeking the disqualification of General (retd) Pervez Musharraf from participating as a candidate in the elections under Articles 62 and 63 has not been entertained by the Supreme Court (SC). The petitioner’s argument is that Musharraf had violated the constitution by imposing an emergency on November 3, 2007 and suspending the constitution. The petitioner’s counsel, A K Dogar, cited the July 31, 2009 verdict of the SC to argue that the constitution could not be held in abeyance at the will and whim of a COAS. This, according to Dogar, was subversion of the constitution and constituted high treason. There existed a declaration against Musharraf in the SC’s judgement, he went on, and thereby he stands convicted. A raft of other petitions are flowing into the SC against the former dictator, ranging from the Lahore High Court Bar Association’s plea for a treason case to two petitions asking for his name to be put on the exit control list. This is quite apart from the cases against Musharraf on the Akbar Bugti and Benazir Bhutto assassinations and the Laal Masjid operation. The SC’s three-member bench headed by Chief Justice Iftikhar Mohammad Chaudhry held, however, that the SC was not the appropriate forum for such a plea and the petitioner should address the election commission’s returning officers regarding the appropriateness or otherwise of the candidature of Musharraf. It must be noted that the court has not as yet addressed the treason charge.
It is interesting to ask the question that looms like an elephant in the room. Nobody is inclined to charge Musharraf with the crime of carrying out a military coup in 1999 that overthrew the elected government of Nawaz Sharif. The latter has not approached the SC on this burning but forgotten issue, nor have the petitions discussed above. Why is this? Logically, that coup was the fountainhead of all that followed, including the imposition of emergency in 2007. Could it be that even Musharraf’s sworn enemies are reluctant to stir a pot that might end up raising embarrassing questions about the SC itself? After all, the SC endorsed the coup, went so far as to give Musharraf a three-year stint as Chief Executive, and even bestowed its generous largesse on him by allowing him to amend the constitution. The present Honourable Chief Justice too came to his office in 2005 under Musharraf’s dispensation. Any delving into these prickly events therefore has the potential of embarrassing questions being raised about the conduct of the SC and its relationship with the coup maker in the past. Admittedly, the SC has since vowed to forget the controversial track record of the judiciary in the past vis-à-vis military coups and dictators, but does this not conveniently brush the issue under the carpet? Can the SC find the moral strength to reverse those decisions so as to prospectively block for all time to come the path of future Bonapartes? Of course that would imply going against the most powerful institution of state, the military, which has thrown its weight behind Musharraf’s safe return (through protective bail) and urged the government to provide him foolproof security. Difficult as it is, the expectation from the judiciary is that it would grasp this nettle to lay the ghost of coups and coup makers to rest permanently.
Meanwhile Musharraf is waxing eloquent in his defence. He says in a press conference the other day that he has not returned under any deal (perhaps because he himself was a deal-maker while in power), challenges his opponents to do whatever they can against him since he is not afraid, brushes aside al fears of assassination, etc. He also justifies the Laaal Masjid operation and Kargil, denies responsibility for Bugti’s killing, and looks to the MQM for a seat or two. Pakistan’s nascent democracy, faced with the challenge of conducting a peaceful democratic transition from one elected government to the next also arguably faces, but is not so far addressing, the sordid past of military coups in our history, and has yet to find the courage to put those responsible in the dock of history and the law. *