Musharraf’s Conviction Puts Judiciary and Military on Collision Course
Pakistan’s former military dictator Pervez Musharraf opens his memoir, In the Line of Fire, with an account of his multiple near-death experiences. “I only pray that I have more than the proverbial nine lives of a cat,” he noted.
On 17th December his luck seemed to run out, when a special court found him guilty of high treason and sentenced him to death for subverting the Constitution after a six-year-long trial. Musharraf, a former general, came to power in a bloodless military coup in October 1999, against an elected government. In November 2007, he declared a state of emergency in the face of an impending Supreme Court decision that was likely to bar him from seeking reelection as president while he was also serving as army chief. During this time, he suspended the constitution, put senior judges, including the chief justice under house arrest, and took TV stations off the air. He was finally deposed after losing general elections in February 2008. In 2013, a high treason case was initiated against him under a constitutional provision punishing “any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means,” and a special court was set up to try him.
Despite his conviction, Musharraf is unlikely to be executed any time soon. The court allowed the ailing strongman to leave Pakistan for medical treatment in March 2016 (in May 2016 it also declared him a fugitive after he failed to return), and he is currently in self-imposed exile in Dubai. He has the option of appealing the judgment to the Supreme Court, but to do so, he’d have to return to the country and surrender himself to the law, something he’s unlikely to do under present circumstances.
Whatever the case, though, the court’s decision is a watermark in Pakistan’s history. The judiciary has traditionally validated military coups under the notorious “doctrine of necessity” (even Musharraf’s 1999 military coup was validated by the judiciary, allowing him to stay in power). The judiciary has been complicit in the 33 years of military rule in Pakistan since the country’s first coup in 1958. This judgment therefore, may represent a break from the past and a new hope for judicial independence.
This judgment may represent a break from the past and a new hope for judicial independence.
This may however put the judiciary on a collision course with Pakistan’s powerful military. Even before the judgment was delivered, the Pakistani government (apparently under pressure from the military) tried (and failed) to prevent the bench from announcing its decision. (The current government is different from the one that initiated the high treason case against Musharraf six years ago.) Soon after the decision was announced, the military’s media wing issued an unprecedented statement criticizing it. “An ex-Army Chief, Chairman Joint Chief of Staff Committee and President of Pakistan, who has served the country for over 40 years, fought wars for the defense of the country can surely never be a traitor,” it said. “The due legal process seems to have been ignored including constitution of special court, denial of fundamental right of self defense, undertaking individual specific proceedings, and concluding the case in haste.”
Special operations forces of the Pakistani army
The court probably did itself no favors with part of its judgment. In paragraph 66 of its 169-page judgment, head judge Waqar Ahmad Seth wrote in a minority opinion, not endorsed by the other two judges in the case, that “We direct the law enforcement agencies to strive their level best to apprehend the fugitive/convict and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk, Islamabad, Pakistan and be hanged for three days.” (The D-Chowk is a central area in Islamabad, close to Parliament and the Supreme Court.)
Critics of the court’s verdict were quick to pounce on the medieval overtones in this paragraph. The military’s media wing said the verdict “transgresses humanity, religion, culture, and other values.” Pakistan’s attorney general Anwar Mansoor Khan called the verdict “unconstitutional, unethical, inhuman, and was given an individual whose sanity is questionable.” The government also announced it would bring proceedings against the judge at the Supreme Judicial Council, which is empowered to hear cases of misconduct involving judges of the higher judiciary.
The military’s media wing said the verdict “transgresses humanity, religion, culture, and other values.”
The Musharraf case is actually the second occasion in less than a month in which courts have demonstrated an unprecedented assertiveness in military-related matters. Earlier last month, the Supreme Court took up the matter of the current army chief’s extension. The army chief, Qamar Javed Baja, is just two days away from finishing his term, and the government has decided to extend his tenure for another three years. Not only did the apex court rule that there are no legal grounds for granting him an extension, it also questioned the validity of extensions granted in the past. It directed the government to settle this issue through Parliament in six months. These developments raise the possibility of the cases of past coups being reopened for judicial review.
The Supreme Court blocked the extension of the current army chief’s tenure
The stage seems to be set for a confrontation between the judiciary, which is trying to assert its independence, and the military, which fears an end to its impunity. Even if Musharraf doesn’t return to appeal, a long legal battle is likely to ensue over the decision in the coming months. The current government, which has been accused by the opposition parties of being beholden to the military, may hesitate or even refuse to enforce court orders to avoid antagonizing the generals. The military establishment itself has shown itself unwilling to acknowledge the role it played in undermining democracy and the Constitution. On the other side, most opposition parties and Pakistan’s vocal legal community have indicated support for the courts on this issue. How this confrontation plays out, whether Pakistan’s budding judicial independence flourishes or is crushed under a military boot will determine whether the country becomes a vibrant democracy or a banana republic.