Many of those who have supported democracy in Pakistan since its inception in 1970 and after the Constitution of Pakistan was promulgated in 1973, have demanded that the two military generals who undertook coups and abrogated the Constitution, be held accountable. Both General Zia-ul-Haq (1977) and General Pervez Musharraf (1999) were able to convince the superior judiciary that their coups to dismiss elected governments were in the “national interest”, with both coups being validated by the superior judiciary, and neither of the two coup-makers held accountable for his actions. In fact, provisions were subsequently introduced into the Constitution on both occasions, which ratified such action through Parliament granting impunity for numerous unconstitutional acts.
On December 17, 2019, a Special Court of the Supreme Court of Pakistan, held the now retired Gen. Pervez Musharraf guilty (in absentia) of the offence of high treason and to be hanged to death, not for undertaking the coup against Prime Minister Nawaz Sharif in October 1999, but for imposing an Emergency on November 3, 2007. The term used to applaud this sentence, that the judgment is “unprecedented” — given Pakistan’s political economy with the dominance of the military and which Gen. Musharraf of the Pakistan Army’s Special Services Group (SSG) himself led as Chief of the Army Staff from 1998 to 2007 — is itself severely understated. Since the first of three major coups, in 1958, with generals ruling Pakistan collectively directly for more than three decades, and also determining political processes for a further two decades, such a judgment has been a long time coming. Even those who are against capital punishment have endorsed the decision in principle, hoping that if ever it is implemented, it would be converted into life imprisonment.
A verdict’s ripple effects
Clearly, former President General (retired) Pervez Musharraf is not going to be hanged. Nor, will Paragraph 66 of the judgment which states that even if found dead, “his corpse be dragged to the D-Chowk, Islamabad, Pakistan and be hanged for 03 days”, be applied to him if he were to pass away. Such dramatic language notwithstanding (which was a minority view which is not part of the official judgment), the fact that the Supreme Court of Pakistan could take such an extraordinary decision has major repercussions and consequences.
Before one begins to interpret the nature of the consequences of this particular judgment, it is worth citing a few recent instances in the nature of decisions by the Supreme Court. In 2007, through a Lawyers’ Movement which rallied thousands of lawyers against the decision of the then President Musharraf to dismiss the Chief Justice of the Supreme Court, the legal fraternity reinvented itself as an institution which wanted to be seen as democratic, impartial and independent. By taking on Gen. Musharraf with the critical support of the three main political parties lead by Nawaz Sharif, Asif Ali Zardari and including the incumbent Prime Minister of Pakistan Imran Khan himself, the Lawyers’ Movement changed from one of protecting the legal community’s specific self-interests into one of a broader anti-Musharraf, pro-democracy movement, eventually leading to Gen. Musharraf’s resignation as President of Pakistan in 2008 in order to avoid an impeachment process initiated by Parliament.
Since 2008, the judiciary has had Pakistan’s former Prime Minister imprisoned, found a sitting Prime Minister to be ineligible to hold office resulting in his resignation, and along with the National Accountability Bureau opened trials against numerous ministers. It has also been involved in prosecuting a former civilian President of Pakistan. Numerous former Ministers and one former Prime Minister of Pakistan are currently in captivity. Some have still not been charged. The courts have been particularly active in dispensing judgments and justice against numerous civilian representatives. They have also passed two critical judgments against the military.
In November 2017, a sit-in took place near Islamabad by a newly formed religious political party called the Tehreek-e-Labbaik Pakistan (TLP). A suo motu case was taken up by the Supreme Court and in its judgment in 2018 it ordered “action against army officers who engaged in political activity” supporting the TLP in the sit-in. The judgment cast aspersions on the Pakistan military’s secret Inter-Services Intelligence (ISI) wing and felt that there was a perception that the ISI might have been involved in the sit-in. It also felt that the Director General (DG) of the Inter Services Public Relations (ISPR) had “taken to commenting on political matters”. Clearly, the military and its leadership could not have been pleased by such new-found judgments.
However, the subsequent involvement of the superior judiciary in military affairs was an even bigger surprise and a reflection of an attempt to assert a new sense of its power and independence. Just a three weeks before the high treason judgment against Gen. Musharraf by the Supreme Court of Pakistan, it suspended the three-year extension in the services of the current Chief of Army Staff, General Qamar Bajwa — it was to have taken place smoothly, as it has in the past, on November 29, 2019, the day he was to retire. The court extended his tenure by a mere six months, asking Parliament to find constitutional means to deal with such extensions.
The military reacts
The Musharraf high treason judgment drew the wrath of the DG-ISPR who issued a press release immediately after, stating that the decision “has been received with a lot of pain and anguish by the rank and file of Pakistan Armed Forces”. Gen. Musharraf, with his exemplary record, the press release stated “can surely never be a traitor”. Clearly, the military and its establishment have not been pleased by the Supreme Court’s judgment. Immediately after the announcement of the judgment, General Bajwa visited General Musharraf’s former unit, the SSG, and was photographed raising a clenched fist.
While the military has expressed its displeasure and disappointment in this series of judgments by issuing press releases and holding press conferences, the military’s B Team, the incumbent government of Prime Minister Imran Khan, has also risen to the defence of the military, perhaps trying to pay back much support that the military has provided to the civilian government. Since the civilian government has repeatedly stated that it is on the “same page” as the military, this was to be expected.
Jarring note
What has been surprising, however, has been the utter silence from the two main political parties on the Musharraf High Treason case — that of Nawaz Sharif and Asif Ali Zardari. Perhaps the saddest aspect of the Supreme Court’s independent stand in following its interpretation of the Constitution has been the absence of support by political parties which ought to have benefitted the most by such a judgment. This judgment clearly enhances democracy in Pakistan, but if those who are supposedly democracy’s champions are unable to celebrate a huge symbolic victory, it only reaffirms the perception that despite three civilian elected governments since 2008, the military continues to rule Pakistan. Without the support of democratic forces, it is improbable that even the Musharraf High Treason judgment would deter the military from taking any sort of political action it feels necessary in the “national interest”. Yet another opportunity to strengthen democracy in Pakistan may have been lost.
S. Akbar Zaidi is a political economist based in Karachi. He teaches at Columbia University in New York, and at the IBA in Karachi
