File photo: Pervez Musharraf. Photograph:( Zee News Network )
Any judicial harm coming to Pervez Musharraf could leave his successors vulnerable to similar judicial action.
Two judgments by the Pakistan judiciary – one questioning the extension of tenure of the incumbent army chief and the other awarding death sentence to former chief Pervez Musharraf for high treason- have attracted considerable attention because of being utterly out of character for the army dominated Pakistani polity. Do they signal the advent of a new dawn in Pakistan?
PM Imran Khan’s decision to grant the second tenure of three years to army chief Qamar Javed Bajwa was not unprecedented. Aside from the self- granted extensions of their tenures by army chiefs turned military dictators, the PPP government had given the second tenure of three years to the then army chief, Ashfaq Parvez Kayani in 2010. However, three days before Bajwa was to embark upon his new tenure, a Supreme Court bench headed by Chief Justice Asif Saeed Khosa took up a petition challenging his continuation in office and suspended the government notification issued for the purpose.
During the tense three-day hearing, the judges questioned the government decision both on account of the utterly inept procedural handling of the matter and the absence of any legal or constitutional basis for it. At the end, in order not to precipitate a crisis, they ruled that Bajwa could continue in his post for a further period of six months and his continuation thereafter would depend upon adoption of suitable legislation by the Parliament concerning the appointment and terms and conditions of service of the Chief of Army Staff.
Subsequently, a special court, constituted by the Supreme Court and comprising a judge each of the Lahore, Peshawar and Sindh High Courts, has given a 2-1 verdict, awarding death sentence for high treason to the former military dictator Parvez Musharraf for his action in declaring an emergency and suspending the constitution in early November 2007, when he was President and Chief of Army Staff. The court relied on Article 6 of the Pakistan Constitution that stipulates that any person who abrogates or subverts or suspends or holds in abeyance the Constitution by force or unconstitutional means shall be guilty of high treason.
The treason case was filed by the Nawaz Sharif government in November 2013 and the Supreme Court agreed to set up a special court to try Musharraf. Within a few months, the then army chief Raheel Sharif indicated that he was against the trial and said that the army “Would preserve its own dignity and institutional pride.” With the army backing him, Musharraf dodged the trial and was able to secure an order from the Supreme Court in March 2016 to go abroad for medical treatment and has not returned to Pakistan since then, even though the special court gave him six opportunities to make his statement.
Finally, when the court decided to hear the case on a daily basis in October 2019, Imran Khan’s government sacked the entire prosecution team! With no further inputs coming from the prosecution or Pervez Musharraf’s defence lawyers, the special court concluded its proceedings on November 19 and said that it would give its verdict on November 28. Caught by surprise, Musharraf’s defence team challenged the special court’s decision to announce its verdict in the Lahore High Court.
Strangely, the government also approached the Islamabad High Court to restrain the special court from going ahead with its verdict. The High Court granted the request and directed the special court to listen to all the parties and complete all legal formalities before pronouncing its judgement. It also directed the government to appoint a prosecutor by December 5. The special court stated that it was not bound by the decision of the Islamabad High Court.
When it convened on December 17, both Pervez Musharraf’s lawyer and the prosecution tried to stall the proceedings, the former by saying that Musharraf must be given an opportunity to make a statement before the court and the latter making an attempt to widen the scope of the trial by bringing in charges against some alleged collaborators of Musharraf, including former Prime Minister Shaukat Aziz. The special court rejected these pleas, ruling that Pervez Musharraf had foregone repeated opportunities to make his statement and the Supreme Court had decided that the case be proceeded with against Musharraf only. It then pronounced its split verdict to sentence Musharraf to death.
The Pakistani judiciary has, with a few exceptions, acted as a handmaiden of the army and helped them in subverting democratic processes. A recent example is its collaboration with the selective accountability process against Nawaz Sharif to rule him out of the 2018 election. Facilitation of his departure for medical treatment abroad by the judiciary seems to be the result of a nod from the army, keen to see him leave the country, in return for an end to his and his daughter’s strident campaign against them.
The last time the judiciary mounted a challenge to the army was under the maverick Chief Justice Iftikhar Chaudhry, who reopened the case of financing of the Nawaz Sharif led Islamic Jamhoori Ittehad by the ISI during the 1990 election to defeat Benazir Bhutto, hauled up a few retired generals on corruption charges and took up cases of forced disappearances in Baluchistan and the tribal areas. However, in the face of the resistance of Pakistan army, the court did not make much headway.
Why Chief Justice Khosa, who is to retire later this month, took up the case of Bajwa’s extension has been a matter of speculation. Some observers ascribe it to his annoyance at Imran Khan’s criticism of the judiciary in letting Nawaz Sharif go abroad without the stringent conditions imposed by his government and the consequent desire to get even with the Prime Minister by showing the functioning of his government in a poor light in the matter of army chief’s extension. Others believe that the court might have been encouraged by senior army officers, whose promotion prospects would be marred by the continuation of Bajwa in his post. As for the special court, one of its members, Chief Justice Waqar Ahmed Seth of the Peshawar High Court has had a record of bold decisions, setting aside trials by military courts.
What do the above judgments mean for Pakistan’s democracy?
The continuation of Bajwa as army chief beyond the six months period approved by the Supreme Court would be more a function of his control over his senior army commanders than of the political dynamics within the Parliament. Should he be able to ensure cohesion within the army’s senior ranks, politicians in the government and opposition could be expected to bend over backwards to provide the legislation required for his continuation. The army and Imran Khan government have already rallied against the death sentence awarded to Musharraf. The army spokesperson has issued a statement that the special court judgment has been received by the rank and file of Pakistan armed forces “With a lot of pain and anguish”.
He adds that Pervez Musharraf, who served Pakistan for over 40 years and fought wars for its defence “can surely not be a traitor” and complains that due legal process seems to have been ignored “including constitution of special court, denial of fundamental right of self-defence, undertaking individual-specific proceedings and concluding the case in haste.” He expresses the expectation of armed forces that justice would be dispensed in line with Pakistan’s constitution. This plea for justice in keeping with the constitution for a man who blew to pieces all constitutional tenets sounds bizarre, to say the least! The army would go to any length to thwart the judgment. Though Musharraf’s successors have not resorted to the extreme steps against constitutional governance that he did, the army leadership has continued to act well beyond its remit in violation of constitutional norms, including interference in elections. Any judicial harm coming to Musharraf could, therefore, leave his successors vulnerable to similar judicial action.
Musharraf’s lawyer has said that he would file an appeal in the Supreme Court. The government has expressed its intent to support Musharraf during the appeal process. With the possibility of reversal of the special court judgment by the Supreme Court and power of the President to grant pardon, should the apex court uphold the judgment and no likelihood of Musharraf returning to the country, the death sentence remains largely symbolic and it is deterrent effect uncertain.
Pakistan is nowhere close to redressal of its civil-military imbalance. However, even if, as expected, the army leadership manages to overcome the hurdles thrown up by the above judgments, its inability to prevent the judges concerned from pronouncing them is a reminder of a sizeable body of opinion in Pakistan that does not see eye to eye with the army’s ways of functioning. This opinion, which the army has managed to keep under subjugation through heavy-handedness, must gain in strength if Pakistan is ever to become a normal state.
(Views expressed above are the personal views of the author and do not reflect the views of ZMCL)