Political rhetoric aside, I don’t think anyone really wants to indict Musharraf. It will be supremely ironic if parliament now grants Musharraf indemn

The 31st of July, 2009, was not just any Friday: on this day, the Supreme Court of Pakistan delivered a landmark judgement on the actions taken by General-President Pervez Musharraf on, before and after November 3, 2007, which related to changes in the Constitution brought about through the issuance of PCOs, as unconstitutional and invalid. The judgement has been widely hailed as a victory of democracy, and is being interpreted to mean different things by different people, according to their individual inclinations.

Ejaz Haider was absolutely right when he commented in a recent article that in any country with democratic traditions, this would be nothing remarkable, but then we are not living in an ordinary country.

To briefly recall Musharraf’s shenanigans of November 3, 2007: having lost the battle in his self-created judicial crisis, when he attempted to sack the chief justice, he decided to regain his waning power in one fell swoop. On November 3, 2007, in his capacity as chief of the army staff, Musharraf declared an emergency and issued a PCO, requiring all judges to take fresh oath or be sacked. Further, he granted himself indemnity for all subsequent actions that he took in his capacity as president. A farcical comedy, had it not been so tragic!

That his actions were malafide, unconstitutional and illegal goes without saying. Nonetheless, as expected, the chief justice appointed under the PCO legitimised Musharraf’s farce under the usual and hackneyed Doctrine of Necessity. The July 31, 2009 decision declared this court unconstitutional, and thus its decision invalid.

There is far more to this decision than meets the eye. The issue before the court was fraught with politico-legal complications and pitfalls. I must admit that I cannot but appreciate how adroitly the court has avoided these; and how carefully it has avoided getting involved in political issues, so as not to be sullied. In its own way, this historic judgement is no less bound by the ‘doctrine of necessity’ than the many previous and infamous ones have been.

While setting aside a number of Musharraf decisions, before and after November 3, 2007, the court has ruled that these, including the infamous NRO, will be deemed to have come into effect as of July 31, 2009 for a duration of ninety days, during which parliament will either enact them into law, or not, or simply allow them to lapse by failing to do anything. Further, the judgement says that the decision to try Musharraf for treason rests with the parliament.

What does this mean?

To our Advocate General, it means that “simple majority in parliament is sufficient for Musharraf’s trial”; to our prime minister, it “signals the end of dictatorship”; though that conclusion is certainly moot. However, I wonder whose dictatorship he is referring to, since it could well refer to Zardari’s dictatorship as well!

To me, it means, first and foremost, that the ball is now firmly in parliament’s court. While Musharraf must be concerned, I wonder if he is conscious of the irony that this judgement has ensured that, whatever parliament decides, the days of blaming Musharraf for everything will become a thing of the past!

It will be parliament that will decide whether to enact the NRO or not. In either eventuality, there are bound to be repercussions. If parliament decides to enact the NRO, it will be parliament that has granted selective amnesty to the hundreds of beneficiaries of this ordinance, not Musharraf. In fact, by doing so, not only will the PPP-led government find its face covered with egg, it will exonerate Musharraf.

If they decide not to enact the NRO, what will be the fate of the hundreds of beneficiaries, many of them in exalted positions, including no less a personage than our worthy president? And let us not forget that among the beneficiaries are many senior members of the MQM.

Even if the government decides to accept the egg on its face, can it find the numbers to turn the NRO into law?

The PMLN has been baying for Musharraf’s blood. Its leadership was hoping that the Supreme Court would go a yard or two further and declare Musharraf’s acts treason. However, while declaring his acts unconstitutional, the SC has shifted the burden of indicting the ex-president or granting him indemnity by not doing so to parliament; an unexpected, but wise and constitutionally sound decision. Even while hailing the SC decision, the PMLN has suddenly gone silent on the issue of Musharraf’s trial. Obviously, it will open another Pandora’s Box, with most uncomfortable repercussions for both main parties.

Once again, it will be parliament that will decide whether to indict him or not. If parliament enacts the NRO, it will have no moral standing to indict Musharraf — you can’t benefit from one of his most controversial acts on the one hand and indict him for others.

Political rhetoric aside, I don’t think anyone really wants to indict Musharraf. It will be supremely ironic if parliament now grants Musharraf indemnity by not indicting him. I don’t know if the CJ enjoyed passing this judgement, conscious of the ensuing discomfiture to parliament and the politicians. I enjoyed reading it!