WE are a strange people. We welcomed Musharraf as a saviour in 1999. He did what most rulers do: focused solely on self-aggrandisement.

He got us riled up enough by 2007 that we rose up against him in the name of rule of law and democracy when he threw out the chief justice in March 2007 (who frankly not many liked at the time).

By 2009, his transformation from saviour to villain was complete. When he tried his second coup in November 2009, we would have none of it. Eventually he became a liability for everyone, including the khakis, and had to leave the country.

In April 2013 he decided to return. For the first time in our history we had a coup-maker in our midst whose subversion of the Constitution had not been granted ex post facto legal cover by parliament or judiciary. But as we saw Musharraf defending himself before the courts like politicians and ordinary people do all the time (without the farmhouse jail and military security of course), it was suddenly revenge and not accountability. Still remorseless, Musharraf went from being villain to victim who needed to be saved from bloodthirsty judges, politicos and extremists.

When Musharraf was lording it over us we spoke about how nations with spine and grit make examples of despots. We spoke of how the corpse of Oliver Cromwell was dug up, hanged and beheaded by Royalists in England. This is not to argue that Musharraf should be hanged for his crimes (or any human being for that matter), but to note, with regret, that we are a mawkish reactionary lot, guided more by emotion and spite than principle.

Musharraf’s basic crime is not that he joined the war against Al Qaeda or leased bases to Americans or came up with the notion of good and bad Taliban or was a hypocrite who spoke of enlightened moderation while injecting life into the politics of maulvis.

Musharraf should not be convicted because many are opposed to his policies or how the Bugti or the Lal Masjid operations were carried out. Any ruler of Pakistan, whether legitimate or not, could have gotten those choices wrong.

Musharraf’s basic crime was that his rule was unconstitutional. He had no basis to rule except by virtue of his monopoly over use of force as army chief. He abused that monopoly, subverted the Constitution and forcefully appropriated state authority. How he exercised such authority is a separate question and of no relevance to the treason trial. But we are still confused about trying Musharraf for treason not because we doubt whether he subverted the Constitution, but because we are not completely sold on the idea that our Constitution is sacrosanct.

The arguments now emerging against the treason trial is a mishmash of nonsense. Why is he not being tried for the original sin of 1999 but for the lesser offence of 2007, goes the refrain. Would you try a repeat offender in an open and shut case or one that is near impossible to prove? There is no court ruling blessing the acts of 2007. There is no constitutional cover afforded by parliament. And there is an order issued by Musharraf in his capacity as army chief that suspended the Constitution. The story of 1999 is legally more convoluted. The then not-so-righteous Supreme Court gave Musharraf a pat on the back in the Zafar Ali Shah case. Through the 17th Amendment parliament afforded his coup constitutional cover. While the Sindh High Court Bar Association case declared Musharraf a traitor liable to be charged under Article 6 for his 2007 acts (and overruled the Zafar Ali Shah case) and the 18th Amendment erased the cover provided to Musharraf’s 1999 acts by the 17th Amendment, retrospective application of an amended law is fundamentally unjust.

So the argument being made is this: if you cannot punish someone for the first premeditated murder, punishing him for consequent homicides is wrong. The linked aider-and-abettor argument is even more wayward. When Musharraf subverted the Constitution in 1999 no one in this country seemed to mind much and so everyone was an abettor. Now if you are not going to try active or passive abettors, why try the prime accused? So should those opposed to his trial for the 2007 crimes also be tried as aiders and abettors?

Sharif’s problem with the 1999 subversion is that it was personal to him. If he opens that up some of us will lynch him for being a mean revengeful man and some for being the hypocrite who was also nurtured by a dictator. So the conversation will go back to 1977.

If you start talking 1977, it will go back to 1958 and Cromwell-type solutions. In this mode of reasoning we’ll soon find ourselves talking about Cane and Abel without an agreement that a general who subverts the Constitution must be tried for treason because the Constitution says so.

We don’t want to try Musharraf for reasons that are wrong: because it will vindicate Sharif, our good-for-nothing third time prime minister; because it will please the chief justice, who might himself be evolving from saviour to villain; because that might inadvertently strengthen bigoted right-wing forces already breathing down our necks; because how dare someone think of trying the chief of an army without which this country cannot exist. But we don’t want to try Musharraf mostly because we don’t think the Constitution is sacrosanct.

All arguments about flawed democracy and failing state that coup-makers employ are also being employed by the Tehreek-i-Taliban Pakistan (TTP). There is no principled difference between what dictators do and what the TTP is trying to. When use of force succeeds, everyone around falls in line.

There are no aider and abettors, but survivalists — some more expedient than others. If we refuse to defend the Constitution because we hate Sharif or the CJ more than Musharraf today or out of a sense of camaraderie for a former commander, we have no other common basis to defend the Pakistan we have today.

The writer is a lawyer.

sattar@post.harvard.edu

Twitter: @babar_sattar