By Mir Jamilur Rahman
Prime Minister Gilani has virtually conceded that the government will not put the chief executioner of the constitution on trial as written in the law. The prime minister told the National Assembly a few days ago that his government was ready to try Musharraf if parliament were to hand down a unanimous resolution to that effect. He did not say from which authority or law he had derived this condition. More importantly, from where he got the idea that for the resolution to bear fruit it should be passed unanimously?
Parliament passes laws by simple majority of those members who care to be present in the house. It could amend the constitution if two-thirds of the total membership of parliament votes for it. The president could be removed if a resolution is passed at the joint sitting by the votes of not less than two-thirds of the total membership. Mr Gilani has written history by floating a novel idea that he will put Musharraf on trial if parliament's 445 members vote for his trial.
In fact, there is no provision in the law that requires the government to seek parliament's approval, unanimous or otherwise, for the trial of a person accused of high treason or other criminal act. The Supreme Court has opened a window for instituting the case against Musharraf but the Zardari-Gilani government finds Musharraf too hot to handle. Mr Gilani says that he needs unanimous parliamentary vote in order to try Musharraf and the spokesman for the presidency rules out trial on the premise that it is a political issue. It means that subverting and suspending the constitution are merely a political game and not serious enough offences that call for prosecution by the state!
Pakistan does have the tradition of trying civilians and khakis for sedition. First, the Rawalpindi Conspiracy case in 1951, the accused included Faiz Ahmed Faiz. Second, the Agartala conspiracy case in 1969, the main accused was Sheikh Mujeebur Rehman. Third, the Hyderabad Tribunal in 1975, the main accused was Khan Abdul Wali Khan. All these cases were taken to court by the government without referring them first to parliament for its approval.
It has been reported often that the US and the UK are not in favour of putting Musharraf on trial for murdering democracy. If it is true then it is strange as well, because, the foreign policy of a big power is not dictated by sympathy for the fallen friends who had acted ultra-loyally to the US in the aftermath of 9/11.
People are in a dilemma. They want Musharraf punished after due process of law but the government doesn't. People want him in the court to discourage other anti-democracy elements. This issue has the potential of creating a great divide between the people and the government. Prime Minister Gilani instead of putting conditions that are impossible to fulfil, except in a dictatorial and one-party regime, should come clean and tell the people why he is hesitant to put Musharraf on trial. If his argument serves national interest, people will believe him and stop demanding Musharraf's trial.
Instead of seeking parliament's unanimous consensus the government may also endeavour to ascertain people's thinking by holding a referendum. Referendum is a constitutional provision. Its application in this issue would be legal and trustworthy unlike the fraudulent referendum of Musharraf which he won as president easily because he was the only candidate. There is no reason for the army to block justice to protect a disgraced retired general. If Musharraf committed treason, then he must pay for it.