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Opinion

Should Pakistan prosecute Musharraf?

Targeting only the former president would be unfair. But going after all guilty parties would destabilize the country. Parliament may just have to let the past be the past.

By Ali Wyne / September 2, 2009



Washington

Pressure is building in Pakistan to hold former President Pervez Musharraf accountable for constitutional violations. Failing to do so would cast doubt on Pakistan's prospects for establishing an independent judiciary. However, so would overlooking the comparable abuses of his contemporaries.

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In the name of fairness, Pakistan's Supreme Court needs to try Mr. Musharraf and all of those who committed or abetted crimes. The problem is that this could cause major instability in the country. That leaves the court with only one prudent option: Try none of them.

The case against Musharraf is clear. Among his transgressions: a takeover of power through force; his decision to suspend Pakistan's constitution; his introduction of the 17th amendment, which allowed him to serve concurrently as president and Army chief; his firing of Iftikhar Chaudhry, the chief justice of Pakistan's Supreme Court, and his imposition of emergency rule.

However, context matters. Many of those who are pushing for Musharraf to stand trial are themselves guilty of either committing unconstitutional acts or abetting them. For example, Chief Justice Chaudhry facilitated many of the general's abuses, and was, more generally, a strong ally of his for the better part of Musharraf's time in office.

Then there is Nawaz Sharif; he appears increasingly poised to become prime minister when general elections are held in 2012. Lest one take his recent statements about the rule of law at face value, he organized a mob of supporters to storm the Supreme Court on November 28, 1997, while it considered corruption charges against him.

He sacked the chief justice, Syed Sajjad Ali Shah, and appointed an "independent" panel that soon thereafter dismissed those charges. Shortly before the coup against him, Mr. Sharif pressured the Jang Group (Pakistan's largest group of newspapers) to discharge or downgrade several journalists who had chronicled his record of corruption. When the publisher refused, and won a verdict from the Supreme Court that criticized Sharif for employing intimidation tactics, Sharif impounded Jang's newsprint supplies.

There are many others who could be prosecuted if the Oct. 5, 2007, National Reconciliation Ordinance were overturned. That measure immunizes all government officials who served between January 1, 1986, and Oct. 12, 1999, when Musharraf came to power.

Ultimately, a decision by the parliament to go after only Musharraf would have two effects.

First, it would exculpate individuals who would probably be brought to trial if the criteria that the Supreme Court have applied to him were applied to them.

Second, and more discouraging, it would allow some of the individuals who are implicated in abuses of Pakistan's Constitution to deflect attention away from their records by presiding over this indictment.

Ideally, the parliament could bring to justice every individual, or at least the "big fish" who committed or abetted crimes during the National Reconciliation Ordinance's nearly 14-year window. However, such a move would probably destabilize Pakistan by pitting parliament against Pakistan's president, Asif Zardari, Mr. Chaudhry, Sharif, and others who have committed or abetted constitutional violations.

For all of the energy that the Pakistani government has invested in holding Musharraf to account, it has not displayed commensurate initiative in ensuring the other guilty parties' accountability. The reason? Such an effort would bring their own records under an unfavorable light.

While the public would probably not shed tears over prosecuting Zardari, who is highly unpopular, it would almost surely sound an uproar if the other two were brought before a court; Chaudhry and Sharif, after all, command strong popular backing. A power struggle between Zardari and Sharif, and a row between the parliament and the judiciary, would distract Pakistan from fighting the Taliban, reviving a struggling economy, and addressing myriad other domestic challenges. The international community has a vital stake in preventing that.

That's why it should urge the parliament to declare that the past is the past – and proceed with a firm resolve to punish any subsequent government criminality. It is hardly a satisfying course, and it would leave the current government vulnerable to the charge that it places expediency over principle.

However, the parliament would be able to prevent a power struggle, avoid the double standard of prosecuting one guilty party but not the others, and send a powerful message of impartiality.

The test of Pakistan's democratic potential will be whether it can establish a system of checks and balances to uphold that principle.

Ali Wyne recently completed a junior fellowship at the Carnegie Endowment for International Peace in Washington.

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