Yesterday, a FIR was registered by the police against former President Musharraf on order of a sessions court judge. The FIR charges Musharraf with wrongfully confining certain Supreme Court justices when he declared the Emergency and impeding them from performing their functions. On the heels of a 14 judge bench Pakistani Supreme Court order that found the Emergency illegal, it seems that the judiciary has reconsolidated its power and clearly has Musharraf on the defensive. This Dawn editorial asks despite the FIR if Musharraf will actually be prosecuted, and more importantly if that is a good thing. It openly worries that Musharraf could just be the tip of the iceberg, and many of his powerful allies (including those in the military) could have charges brought against them opening up the possibility of the nation's attention being diverted by a series of politically high-profile trials. The editorial then questions if this is the best use of the country's energy right now with so many other pressing concerns.
This is not a new question to the law. Many countries have struggled with how to balance the need to punish former leaders for illegalities or rights abuses they perpetrated, while also avoiding the political turmoil caused by putting these former leaders on trial - a political turmoil that could potentially undercut and even topple a newly (re)established democratic regime. In this case, four alternative scenarios seem most likely to me (1) that he is not prosecuted at all; (2) that a political compromise is reached taking the matter out of the courts (maybe ironically Musharraf will follow the path he laid for Bhutto and Sharif into exile); (3) that he is prosecuted; (4) that he and many of his former allies are prosecuted. I read the registering of the FIR as giving the current government leverage to come out ahead in scenario 2. If negotiations around 2 fail, then there is a decent probability that the situation moves to 3 or 4 (although the latter seems to have too high political costs to be very likely). If the government becomes distracted by problems in the north or west, or Musharraf is able to get enough grumbling going in the military, then we'll probably head to scenario 1. If it goes to (3) or (4) the courts will end up playing a starring role, instead of a mere supporting one, and we see a lot more discussions about what role the judiciary should play in balancing the need to punish major political leaders past wrongs and fostering political reconciliation.