JURIST Contributing Editor Ali Khan
of Washburn University School of Law says that the new Pakistani parliament should prosecute Pervez Musharraf for crimes committed against the constitution and people of Pakistan, and resist any pressure to pardon him directly or indirectly by law or by promise of safe passage into exile, perhaps in the United States...
akistan's newly-elected Parliament meets on Monday, March 17, to form a new government. Monday is "democracy day" ending the eight years of military rule. Former Army Chief Pervez Musharraf, however, refuses to step down and claims to be the nation's lawful President. Close to a two-thirds majority of the Parliament and an overwhelming majority of lawyers of Pakistan see Musharraf as a usurper. Facing a hostile Parliament and an uncompromising Bar, Musharraf would offer to make a deal. He would relinquish power if he could safely leave the country (and perhaps fly away to the United States).
This essay argues that Pakistan's Parliament must not pardon Musharraf, openly or secretly. The people of Pakistan want their day in court. Musharaff's Crimes
The lawyers of Pakistan see Musharraf as a criminal who unlawfully occupies the nation's highest office. Musharraf has committed numerous crimes. Two, however, stand out. On November 3, 2007, Musharraf suspended the Constitution exercising the non-existent powers of the Army Chief. Neither the Constitution, national laws, nor the Military Code confers power on the Army Chief to proclaim emergency and suspend the Constitution. Musharraf has presumptively committed the constitutional crime of high treason and his continuing occupation of the office of President is unlawful.
The Constitution mandates that the Parliament "by law provide for the punishment of persons found guilty of high treason." In exercising this power, however, the Parliament must respect international standards and the national criminal justice system that confer numerous rights on criminal defendants. Article 10 of the Constitution, which Musharraf suspended during the November 2007 Proclamation of Emergency, requires that the person in custody be "informed of the grounds for such arrest. . . and not be denied the right to consult and be defended by a legal practitioner of his choice."
In addition to perpetrating the crime of high treason, Musharraf committed the crime of massacre. In July, 2007, after prolonging a manufactured showdown with seminarians in the Red Mosque located in Islamabad, Musharraf ordered the killings of innocent men, women, and children trapped within the Mosque. In asserting the rule of law, the Supreme Court ordered an investigation of the massacre. Compounding his crime, Musharraf charged the Supreme Court with supporting terrorism. And exercising the non-existent powers of the Army Chief, Musharraf fired and arrested numerous top judges of the high courts, including the Chief Justice who still has not been freed. Musharraf's lawyers will have to explain to the trial court whether the Army Chief, in committing the crime of massacre, has the authority to openly subvert the integrity and dignity of the judiciary. Resisting Foreign Pressure
In prosecuting Musharraf for high treason and other crimes, the new Pakistani government might come under some foreign pressure to pardon Musharraf. Except for the United States, however, many nations would see Musharraf's criminal prosecution as Pakistan's internal matter. European nations will not support a despised dictator. China rarely caters to losers and is unlikely to raise the issue with the new government. Saudi Arabia will not rescue a self-appointed reformer of Islam. India will only harm Musharraf if it supports him.
That leaves the United States in the field alone. The Bush administration may pressure Pakistan's new government to pardon Musharraf. Soon after the February elections, Bush encouraged Musharraf to stay as Pakistan's Head of the State. That commitment has now dramatically weakened, and rightfully so. The United States cannot risk alienating the people of Pakistan and the new government for the sake of a former dictator who has lost the military uniform, popularity, and constitutional legitimacy. For pragmatic American policymakers, Musharraf has outlived his utility; and the time is ripe to ditch a useless operator.
As a possible favor to Musharraf, the Bush administration might ask the new government for his safe exit to the United States. Many in the Bush administration, however, will vote against pressuring the new government to do so because Musharraf has been a duplicitous ally, frequently caught running with the hare and hunting with the hounds. Certainly Musharraf has killed Muslim militants in Pakistan but not in sufficient numbers to have earned a White House medal of gratitude.
Suppose the Bush administration coerces the new Pakistani government to furnish a safe passage for Musharraf. In such a case, Pakistan's democracy must resist pressure, assert its sovereignty, and persuade the Bush administration that Musharraf's prosecution for high treason will support and not hurt US interests. If Musharraf is prosecuted for constitutional subversion without American interference, the people of Pakistan will appreciate American commitment to democracy in the Muslim world. If persuasion does not work, saying no to Bush is good for America and a matter of self-respect for Pakistan.
In sum, strong democracies punish constitutional subversions but week democracies do not. And by punishing constitutional subversions, democracies are further strengthened. Pakistan needs to make a strong decision. Fortunately, the usurper is positioned as a sitting duck. He has lost all covers that shielded his raw powers. He is no longer the Army Chief, and cannot order the armed forces to stand behind him. The "King's Party" that propped his lawlessness for years cannot help for it has been thoroughly defeated in the general elections. The Constitution cannot guard Musharraf because Musharraf, as the President's oath requires, did not "preserve, protect, and defend the Constitution of the Islamic Republic of Pakistan." He should be called to account.Ali Khan is professor of law at Washburn University School of Law in Topeka, Kansas, and the author of the book, A Theory of Universal Democracy (2003). Many of his publications are available here.