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EFSAS Commentary

Death sentence of former military ruler Musharraf is yet another blow to the Military Establishment


A three-member bench of a special court on 17 December handed former Pakistan Army Chief General Pervez Musharraf, who overthrew the elected Prime Minister Nawaz Sharif in a coup in 1999 and went on to rule the country for the next 8 years, the death penalty for high treason. The bench was headed by Waqar Ahmad Seth, the Chief Justice of the Peshawar High Court, and comprised Justice Nazar Akbar of the Sindh High Court and Justice Shahid Karim of the Lahore High Court. The courageous verdict of the court has been described as unprecedented, historic and groundbreaking, and represents the first instance in Pakistan’s over seven-decade history that an Army Chief, whether serving or retired, has been brought to book for his misdemeanors, instances of which there have been many. The verdict threatens to disturb the balance of power that has been brutally imposed by the military establishment in Pakistan, and can be expected to have telling repercussions on the politico-military landscape.

The army, which has dominated the political scene in Pakistan throughout its history, is incrementally finding itself in the uncharted territory of its power and influence being challenged by political leaders and the judiciary alike, as had been underscored in the EFSAS Commentary of 29-11-2019 titled, ‘The saga of General Bajwa’s extension and the erosion of the sheen of the Pakistani Military Establishment'. What remains to be seen is whether the army adopts the highly improbable course of flowing with the current and resigning itself to a highly truncated role and place, or it fights back the only way it knows, by bullying the judiciary into submission and trampling upon the politicians. The ever-present danger of a coup in Pakistan may, however, mercifully not figure in the establishment’s present plans, as it has already armed itself with the “democratically elected” puppet government headed by Prime Minister Imran Khan, who has been giving the distinct impression of being more keen to fight the army’s judicial and political battles on its behalf than the army itself.

The high treason trial of the former military dictator related not to his ousting of Sharif in 1999, at which time the Pakistani higher judiciary preferred to legitimize Musharraf’s actions in the hope of sharing in the spoils of power, but to Musharraf’s imposition of a state of emergency and placement of several senior judges under house arrest. The case was filed in 2013-end, and Musharraf was indicted on 31 March 2014. Despite the prosecutor tabling the entire evidence before the special court in September that year, the trial moved along at snail’s pace. Disheartened by the insipid response of the populace to his attempts to resurrect a political career, Musharraf left Pakistan in 2016 with the stated purpose of seeking medical treatment abroad. Despite his promise at that time to return to Pakistan within a few weeks, Musharraf has spent his time in the United Arab Emirates and the United Kingdom ever since. As unlikely as it was that he would return when he left in 2014, the death penalty has ensured that he will spend the rest of his days abroad. That may render the verdict symbolic as far as Musharraf is concerned, but it will not be so for this and future generations of Musharraf’s uniformed brethren in Pakistan, who will have to contend with its fallout.

Ironically, it was the military establishment that invented the shield of treason to protect its hegemony. It has, over the years, labeled practically every dissenting politician and journalist a traitor. Article 6 of Pakistan’s Constitution, under which the death sentence was handed to Musharraf, reads, “Any person who abrogates or subverts or suspends or hold in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance the Constitution by use of force or show force or by any other unconstitutional means shall be guilty of high treason". As per the High Treason (Punishment) Act, 1973, the price of high treason is either death or imprisonment for life.

Just a week before the verdict was delivered, the 76-year-old Musharraf, who had been admitted to a hospital in Dubai after deterioration of his health, described the treason case against him as “absolutely baseless”, adding that “I have served my country for 10 years. I have fought for my country. This is the case in which I have not been heard and I have been victimized”. Given that he was a Mohajir from New Delhi who had been taken to Pakistan as a toddler at the time of India’s partition and the creation of Pakistan, Musharraf was never going to be protected with the same zeal and vigour by the military establishment as a General from Pakistan’s dominant Punjab would.

Musharraf’s legacy as Army Chief of having brought loss of face and embarrassment for Pakistan through his ill-conceived and short-sighted intrusion in 1999 into the Indian-Administered Kargil region of Jammu & Kashmir (J&K) with the aim of internationalizing the J&K issue has also not been forgotten in Pakistan. As per figures quoted by BBC in a July 2019 article by M. Ilyas Khan, while India lost over 500 people in the localized war, estimates of Pakistani losses ranged from 400 to about 4,000. In addition, while most of the people displaced by the war in India returned to their homesteads after Pakistan was forced to announce a unilateral ceasefire on 4 July 1999, tens of thousands of innocent villagers in Pakistan-Administered J&K who were rendered homeless in the conflict remain displaced to this day. As Ilyas Khan wrote, “About 20,000 people from the Kharmang valley had to leave their villages. Twenty years on this displaced population has doubled - and 70% have not returned”. He quoted Wazir Farman, a Skardu-based lawyer and member of the independent Human Rights Commission of Pakistan (HRCP), as explaining why, “This is mainly due to the absence of any government-led rehabilitation programme, or because their lands have been taken over by the army”. Given such a legacy, the near absence of protests and demonstrations over the verdict is not surprising.

While the Pakistan army may not have been overly keen on shielding Musharraf, it certainly was in no mood to tolerate yet another intrusion into its own hallowed turf or the consequent erosion of its authority that the special court verdict translated into. The prospect of being impeded from staging coups at will or sacking inconvenient judges by the fear of potentially facing the gallows at a later stage is, quite expectedly, absolutely unpalatable for the military establishment. Such a state of affairs would take away all the biting teeth that the establishment possesses and free the political leadership and the higher judiciary of the dread that they have historically been weighed down by. Little wonder then that the military establishment first tried hard to delay and scuttle the verdict by using PM Imran Khan and his legal team as the front. There is little else that can explain why the PM, an erstwhile vocal proponent of bringing Musharraf to book, changed colours, and weeks before the verdict was delivered, began serious efforts to undermine and delay the treason case.

The establishment wasted little time in flexing its muscles after the verdict was delivered. A meeting of the top military leadership was held at the General Headquarters in Rawalpindi on the same day. After the meeting, the spokesman for the Pakistani armed forces averred that the “decision given by special court has been received with lot of pain and anguish by rank and file of Pakistan Armed Forces… The 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. Armed Forces of Pakistan expect that justice will be dispensed in line with Constitution of Islamic Republic of Pakistan”. While the spokesman did not specify what the consequences would be if this expectation was not met, observers of Pakistan would tend to believe on the weight of history that they could be dire.

On the other end of the spectrum is the political class of Pakistan, rejoicing, arguably prematurely given that Musharraf’s case is certainly going to be contested in the Supreme Court by the establishment, again through PM Imran Khan’s good offices. Nevertheless, the glee is certainly justified as a judicial blow of this magnitude has rarely, if ever, befallen the all-powerful military establishment of Pakistan. This has ignited hope, even if not much more than a glimmer at the moment, that the age of the genuine political leader may actually be visible over the horizon. The reactions of political leaders to the verdict reflect this optimism. Senator Pervaiz Rashid, an aide to Nawaz Sharif, called it a landmark ruling that would help constrain the military. “We have secured our future generations”, he added. Another Pakistan Muslim League-Nawaz (PML-N) leader Ahsan Iqbal said, “For the first time in Pakistan's history, the idea of the Constitution's supremacy is taking root and hopefully, from this, the custom of violating the Constitution will be finished”. Bilawal Bhutto Zardari, Chairman of the Pakistan People’s Party (PPP), said, “We are hopeful that now, after this democratic verdict, our courts will continue to issue democratic rulings. In the past, our institutions always stood with non-democratic forces. After this verdict, we can hope that our courts will side with justice and democracy for all days to come”.

The judiciary in Pakistan is set to face the brunt of the combined wrath of the military establishment, which has been known to use threats and intimidation at will, and the state apparatus that PM Imran Khan has at his disposal. The government invoked “national interest”, a vague, expansive and threatening term in the Pakistani context, when reacting to the verdict.

Firdaus Ashiq Awan, PM Khan’s Special Assistant for Information and Broadcasting, said after the verdict, “Legal experts will analyse the impacts of it legally, politically and in terms of the national interest, and then a government statement will be presented before the media”. Law Minister Farogh Naseem subsequently informed that the government had decided to approach the Supreme Judicial Council (SJC) with the demand that Justice Waqar Ahmad Seth, who had authored the detailed verdict in the Musharraf treason case, first be restrained and subsequently removed because of his extreme views on Musharraf’s hanging. It can well be expected that other judges who refuse to tow the establishment’s line will be similarly persecuted in coming months.

How the judiciary stands up to the pressure may dictate the direction that Pakistan is heading in. Chief Justice Asif Saeed Khosa, to whom a large part of the credit for reversing the submissiveness of his predecessor Saqib Nisar’s tenure must go, retired on 20 December. Khosa had doggedly pursued Musharraf over the years for his actions against the judiciary in 2007. It was Khosa who had recently dared to question the three-year extension proposed to be given by PM Khan to the tenure of his benefactor and present Army Chief General Qamar Javed Bajwa. In his detailed judgment in that case, Khosa has gone to the extent of observing that “in our peculiar historical context Chief of the Army Staff holds a powerful position in ways more than one. Unbridled power or position, like unstructured discretion, is dangerous”. Khosa’s successor Justice Gulzar Ahmad will find himself in the maelstrom straightaway. A lot will depend on his mettle.

The military establishment appears to be at its lowest ebb and is fast losing its image of invincibility, which is a critical element of its dominance. Another cause for serious concern for the establishment is the obvious division within its ranks, which have been on display since Maulana Fazal-ur-Rehman’s freedom march in early November.

Musharraf’s conviction has set a dangerous precedent for the military establishment, and has chipped away chunks of the doctrine of military immunity that had pervaded over Pakistan. As Fahd Husain, the resident editor of the Pakistani daily Dawn put it, “The decision of the special court to hand down a death sentence to former president retired Gen Pervez Musharraf is groundbreaking in many ways. First, it establishes a very strong legal deterrence against future interventions in which the constitution can be suspended. In this way it strengthens constitutional democracy in Pakistan”. While there is merit in Husain’s analysis, the skepticism of Pakistani columnist and anchorperson Zarrar Khuhro is also pertinent. He averred, “Today's verdict is surely unprecedented as far as Pakistan is concerned. We have seen nothing like it in this country. But will it curtail similar (military) adventurism in the future? That is not something that can be said with any kind of certainty”.

Time will tell how the power struggles in Pakistan play out. The expectation is that the Army will come out triumphant - in line with the country's history.