South Asia

In Pakistan, the Judiciary has Hit the Army Where it Hurts

The significance of Musharraf's conviction for high treason is not lost on anyone in the country since the coup he staged and the subversion of Pakistan’s constitution this involved were clearly not an individual’s action.

A little over 20 years ago, the Pakistan army launched a coup d’état against the elected prime minister, Nawaz Sharif, who had replaced the country’s serving Chief of Army Staff (COAS), General Pervez Musharraf, with a general of his choosing.

The coup was staged even as Musharraf was flying home from Sri Lanka. On arrival, the newly-minted dictator chose to address the nation though the state-owned Pakistan Television (PTV), as had been customary with the military rulers.

A former top executive of PTV, Akhtar Waqar Azeem, chronicles that when Musharraf arrived at the television station for the telecast, he was still wearing a suit. Azeem notes that Musharraf got an army commando to loan him his military uniform shirt to deliver the speech but kept his civilian slacks on. In the subsequent group photograph his trousers were dutifully kept out of the frame.

For his October 12, 1999 speech, Musharraf was accompanied by the commander of the Tenth Corps, General Mahmood Ahmed, Chief of General Staff General Aziz Khan, and the Director General Inter-Services Public Relations (DG ISPR), Rashid Qureshi. The subversion of Pakistan’s constitution was clearly not an individual’s action.

While Musharraf happened to be the COAS, he was still in the air when the coup was launched, and he merely consummated it in that borrowed but symbolic uniform shirt. Army is the chief, and chief is the army; they acted in unison. However, the army and its civilian allies, while defending Musharraf all these years, would want people to believe that he, and the three dictators before him, had acted alone.

Well, that bluff was called this week, when a three-member special court headed by the Chief Justice of Peshawar High Court Justice Waqar Ahmed Seth delivered a landmark judgement, which sentenced Musharraf to death. He had been indicted six years ago, not for the original coup but for a second putsch in 2007. The court has convicted Musharraf, currently a fugitive, in a 2-1 verdict, of high treason under Article 6 of the Pakistani constitution. This is unprecedented in Pakistan’s history. Two of the three earlier military rulers – General Ayub Khan and General Yahya Khan – died of natural causes, at home and in a military hospital, respectively, while the third, General Zia-ul-Haq, was blown out of the clear blue skies by a mysterious bomb on board his plane. None of these dictators ever faced the law.

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In fact, Article 6 only appeared on the books after the country got its first democratically drafted and unanimously adopted constitution in 1973. What really formed the basis of that article was another landmark ruling by the Supreme Court of Pakistan  in a 1972 case titled Asma Jilani vs. the Government of Punjab and others. It was the same Asma Jilani whom the world later came to know as Asma Jahangir — Pakistan’s foremost human rights champion – who had challenged her father Malik Ghulam Jilani’s arrest by the martial law authorities, through that petition. The SCP wrote:

“[A] person who destroys the national legal order in an illegitimate manner cannot be regarded as a valid source of law-making May be, that on account of his holding the coercive apparatus of the state, the people and the courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will remain illegal and courts will not recognise its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would-be adventurers.”

While many, myself included, vehemently oppose capital punishment, the special court has not only upheld the letter and spirit of the constitution but also completed the unfinished business of bringing to book the adventurists who have subverted the constitution. The framers of constitution intended for Article 6 – and the punishment included therein – to deter future putschists, which had remained elusive since the stricture was never applied before.

The wailing by the incumbent DG ISPR, Major General Asif Ghafoor, indicates that the judgment has really hit the army where it hurts. The army, which directly and through its henchmen, had made a living out of smearing as traitors, any individual who opposed its political role, now has one of its own tried and convicted for sedition.

For six decades, the army got away with subverting the constitution, imposing martial law and then coopting or coercing the courts and parliament to give it a legal and constitutional fig leaf. It wanted that for Musharraf’s martial law as well. Ever since he was eased out of power in 2008, the army had been apprehensive that a legal judgment convicting him of treason would not only get him but also potentially close the door on an overt martial law in future. It played the system with both carrot and stick to save Musharraf and helped him abscond to Dubai, where he still resides. In the process, the army orchestrated the weakening of Nawaz Sharif’s last government, for he was the one who had pursued the treason case against his nemesis. In fact, the junta was so livid with Sharif that it virtually stole the 2018 elections from him, to install their favorite Imran Khan as prime minister.

It was all a cloak-and-dagger show, however, with the army trying to appear above the fray despite calling the shots against the democratic dispensation. But the special court verdict has forced the army to come out nakedly and brazenly in defence of the former dictator. All pretence of keeping the outfit separate from an individual was dropped. The DG ISPR has proclaimed: “The Pakistan Army is not just an institution. It is a family … We know how to defend the country and also know very well how to defend the respect and dignity of the institution.”

While the army is merely a department of the Ministry of Defence, it chooses to call itself an “institution”, indicating the delusion of grandeur it operates under. It was this faux grandiosity that came tumbling down with the recent verdict. The unimaginable had happened. The veneer of invincibility had been flayed open, sending the generals scrambling. But a lot of water has flown under the bridges since the last overt martial law two decades ago. Despite the current dispensation being a hybrid regime where the praetorian guard rules with a civilian face, the army simply could not muster the courage to impose martial law.

Just days ago, the Supreme Court of Pakistan had delivered another major blow to the army by suspending the government’s decision to extend the term of the incumbent COAS Qamar Javed Bajwa by three years. The court directed the government to have parliament regulate the service rules, to define the term of the COAS. The court allowed Bajwa to have only a six-month extension in the interim. While a chief is the chief till his last day in the saddle, Bajwa was palpably weakened by the SCP verdict and may very well become the first COAS who could not complete an extended tenure, even if the parliament were to regularise his extension. There is chatter that some in the army’s general staff are displeased with the extension proposition and might be nodding to political players to make their move. Add to this the deep resentment against the army’s machinations against Nawaz Sharif, who remains popular in his home province Punjab, and one virtually has a lame duck COAS. None of this is lost on the country’s superior judiciary, including the members of the special court, who perhaps saw this as an opportune moment to assert that the only thing worse than betraying one’s country to an external agent is to betray the oath of allegiance to its constitution – and hence the term high treason.

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The special court, however, could have done without a rather obnoxious paragraph written by the presiding judge, which states: “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 03 days.” While this is clearly an obiter dictum, which is not the binding or operative part of the judgment, it has rightly opened an otherwise air-tight judgement to criticism. The army and its civilian front, the Imran Khan government, have launched a frontal assault on this non-operative part of the judgment. The Imran-Bajwa hybrid regime is threatening to take the presiding judge to the country’s Supreme Judicial Council to have him declared insane and unfit for the superior judiciary.

The army, and Musharraf, who had incarcerated dozens of judges, including five chief justices and their families, have suddenly discovered a new-found reverence for the judiciary and the rule of law. Justice Waqar Seth could have easily done without the grand-standing lines. While hyperbole is a norm rather than an exception in the Pakistani judiciary, the impugned lines are a serious distraction from an otherwise stellar judgment, and fly against progressive values. One wishes that such a primitive and gory prospect had not even been contemplated, let alone penned down. Posthumous punishment has no room in modern law, even if intended as a deterrent.

Be that as it may, Musharraf and his outfit – after six years and about 125 hearings – have yet to deny the charges against him. In fact, Musharraf has dismissed the constitution as a piece of paper that belongs in the dustbin. The ailing former dictator does have legal remedies available to him, however, including appeals and reviews, but that would entail appearing before the courts, which he is unlikely to do. But some manner of judicial review will be sought by the Imran Khan government to assuage and appease its army masters.

While the Supreme Court of Pakistan can and probably will review the special court’s judgment, and purge its repugnant remarks, it appears unlikely that it would quash it in toto. Aside from the myriad legal and constitutional reasons, the simple fact is that people are fed-up with the army’s blatant, in-your-face interventions into everything civilian. A wise former DG ISPR, Brigadier A.R. Siddiqui, had written in his 1996 book, The Military in Pakistan: Image and Reality: “The frequent use of the military for internal security duties had first led to an expansion of its image and then to its progressive contraction or disfiguration. The popular belief in the inexhaustible resourcefulness of the military eroded through excessive use and overexposure, which made it all too familiar a sight and deprived it of much of its awe and majesty”. This is even more true when the army plunges itself into politics and governance matters, whether in the form of a martial law or a hybrid regime. The blatant meddling into politics by the army since and despite Musharraf’s inglorious ouster, has overexposed it and busted its domestic impregnability myth. Essentially, the army has overplayed its hand. A pushback was inevitable, and finally came in the form of the special court judgment.

The judiciary is currently pitted directly against the army. A new Chief Justice of Pakistan is scheduled to take oath shortly. Would he and the courts he would preside over, roll back the verdict against Musharraf? It won’t be easy to do so. But the ultimate onus is on the country’s political parties to capitalise on the opening provided by the special court’s judgment, and further the case for civilian supremacy. In democracies, the heavy lifting has to be done by the political parties. But so far, they remain conspicuous by their absence. The judiciary has dealt some hefty blows to the army’s political role, but they are not fatal. Unless the political leadership rises to the occasion, the junta would try to wrestle back the space it has lost.

Mohammad Taqi is a Pakistani-American columnist. He tweets @mazdaki