Musharraf Alone is Indictable under Article 6 of the Constitution

By Usman Khalid

http://www.rifah.org/site/musharraf-alone-is-indictable-under-article-6-of-the-constitution/

General Musharraf often talked about the benefits of ‘unity of command’ that held him high in his perch in power for nine years. The “Unity of Command” is a universal

Pervez Musharraf - faces indictment for high treason. Returning to Pakistan is not the first wrong decision he made

principle that guides the conduct and accountability of the armed forces all over the world. But, what does it mean? It means that every serviceman and every unit and formation of the armed forces has a designated commander whose orders – verbal or written - are obeyed without question. It also means that the commander alone is responsible for the conduct of the troops under his command. That subordinate commanders are sometimes consulted and that senior military officers do hold meetings of subordinate commanders and take into account the consensus in such meetings does not dilute the principle of unity of command. The commander is under no obligation either to develop a consensus or to abide by it.

The military discipline requires that the commander is obeyed regardless of the reservations or disagreements that the subordinates might have. Every one in the armed forces knows that quite well. That is why reservations are often not expressed or voiced mildly. Disagreements expressed strongly carry a cost. Many senior officers have been compulsorily retired by Generals Zia and Musharraf when they expressed thoughts opposed to their plans. All protests or disagreements by army officers have been ineffectual and yet they carried a huge cost with no countervailing recognition by the society. The only recourse that military personnel have is to report the matter to the next senior commander or the Service Chief.  When the complaint is against the Service Chief, or Service HQ, there is no practical avenue for redress. No revolt or coup d’état has ever been successful at a level below the Army Chief. But the Army Chief has (thus far) been above law. Even the armed forces personnel hold the view that needs to change.                

General Musharraf and his attorney – Ahmed Raza Qasuri – contend that all those consulted or informed by the General of his intention to suspend the constitution are his collaborators and are therefore indictable under Article 6 of the Constitution. That is incorrect. Although a subordinate official has a duty to disobey an unlawful command, he must have the ability and opportunity to disobey. The person who signed the PCO was General Musharraf. The corps commanders who attended the meeting but did not express their reservation did not commit the offence of abetment. Expression of reservation was not effective action; it could be easily ignored. And the corps commanders were not required to DO anything; they were not given an unlawful command they were duty bound to disobey.

When General Musharraf expressed his intent to suspend the constitution and to dismiss sixty or so judges of the Supreme Court and the High Courts, the corps commanders must have understood they could not restrain him without a coup d’état that is itself unlawful. The only persons whose refusal to endorse the General’s scheme would have been effective without any cost being borne by them were the Prime Minister and members of his cabinet. They were not subordinates of the General or members of a civil or military bureaucracy. Unlike the corps commanders and senior bureaucrats whose ability to restrain their political masters is limited, the members of the parliament – particularly the PM and the Cabinet – are under no constraints and had a duty to prevent the suspension of the Constitution. The civil and military bureaucrats were helpless in preventing a crime. But helplessness is not a crime; abetment is an action, not inaction.

In 2007, General Musharraf was an “elected President”, elected by the National and Provincial Assemblies of Pakistan. Electing a soldier in uniform to political office was a heinous travesty which was committed by the parliament. There was an elected Government in the country complete with a Prime Minister (Shaukat Aziz) and a huge cabinet of sixty or so members. It was they who had the ‘ability and the opportunity’ to stop General Musharraf from suspending the Constitution, promulgating a PCO and incarcerating almost the entire high judiciary. The members of the armed forces and civil servants have not been required to take a fresh oath when a new PCO was promulgated. It is only the high judiciary who were asked to take a fresh oath of allegiance. Many refused and in consequence earned the respect of their profession and the country. But civil or military officials have no profession or sector of the economy to go to which is not under the influence of the Government. The ‘idiots’ like me who resigned in protest against the ‘judicial murder’ of Prime Minister Zulfikar Ali Bhutto were treated by the society as just - ‘idiots’ And corps commanders are anything but. To accuse them of ‘abetment’ as Altaf Hussain (leader of MQM) is doing, is ridiculous.  General Musharraf was the only beneficiary of the decision to suspend the Constitution in 2007. He knew that unlike the parliament, which was ready and willing to do anything to curry favour of Musharraf, the high judiciary was NOT going to endorse his re-election as President in uniform.

The noise in the media about the justification or wisdom of the trial of General Musharraf under Article 6 of the Constitution is so well orchestrated that it gives the impression of being a ‘conspiracy’. The refusal of the ‘caretaker government’ to initiate proceedings under Article 6 of the Constitution against General Musharraf is just as sinister as the failure of the PPP-MQM-ANP coalition to initiate proceedings when he was declared a ‘usurper’ by the Supreme Court in 2009. Musharraf’s defence has been that he was not alone in making the decision. The number of accomplices being large is no defence. He took all the decisions as a military commander who insisted on staying in uniform as Army Chief (COAS) even after being elected the President. He drew his authority from his uniform and he said so many times. His being the President did not give him the authority to suspend the Constitution and promulgate a PCO. He promulgated the PCO in 2007 as the Army Chief. As Army Chief no one shared responsibility or authority with him; he alone committed the crime under Article 6 of the Constitution.      

It is evident that General Musharraf alone carries responsibility for suspending the Constitution; dismissing and incarcerating sixty or so members of high judiciary. The crime of high treason under Article 6 of the Constitution is no ordinary offence. Trial of the usurper is ‘defence of the constitution’ and the trial of General Musharraf is essential to the full restoration of ‘rule of law’.  It should not be compromised by including many alleged abettors with him in the trial. He should be tried alone and for one offence – violation of Article 6 of the Constitution. However, there is clear case  against former Prime Minister Shaukat Aziz and members of his cabinet for abetting the crime of ‘Suspension of the Constitution’ in 2007.

 It is the effort of the Indo-Zionist agents in the media to make the trial of Musharraf a trial of the military. The fact is that the military discipline has held up in the face of extreme provocations and a sustained campaign to demonise the armed forces. If the present or the future government submitted to that pressure and allowed the trial of Musharraf to become a campaign against the military, the effects would be dire. Instead of burying the prospects of another military take over, the trial may well precipitate it. At the moment, the military are just as keen as the rest of the nation that General Musharraf be tried for treason. But a campaign led by Asma Jehangir, Hamid Mir and their likes supported by the media and legal fraternity could succeed where the TTP and ethnic nationalists failed. ++