As things stand in Pakistan, the army and the government claim to be on the same page. The judiciary — for now — is standing apart.
The Special Court trying the former Pakistani military dictator Gen. Pervez Musharraf on charges of treason has pronounced the death sentence on him. Musharraf is unique in Pakistan’s history. He is not only the first usurper to be prosecuted under Article 6 (which defines high treason) of Pakistan’s much abused constitution, but also the first dictator to have carried out not one but two coups. Musharraf’s first coup was in 1999 when he overthrew the elected government of Nawaz Sharif. His second coup was carried out in 2007 when he declared an ‘emergency’, not as president of Pakistan but in his capacity as army chief — he was wearing both hats at the time. The first coup had been indemnified by the parliament that had been constituted after the 2002 election, but the second coup was never indemnified. It is this second coup for which he was tried, and found guilty of treason, and now — sentenced to death.
The ‘selected’ government of Prime Minister Imran Khan had tried very hard to prevent the Special Court which had been constituted by Nawaz Sharif in 2013 from announcing the judgment in this case. The fact that the Imran Khan government is stacked with former associates of Musharraf — the interior minister Ejaz Shah was Intelligence Bureau chief and a crony of Musharraf, who openly opposed his sentencing; Law Minister Farogh Naseem was his defence lawyer in the trial as was the Attorney General Anwar Mansoor — meant that all sorts of obstacles were placed in the path of bringing the former president and army chief to justice.
Days before the Special Court was to give its ruling, the government started to play the fiddle with the judicial process. First, the government sacked the entire prosecution team, even though the prosecution had already rested its case. Then, the government (which was technically the complainant) filed a petition seeking a bar on the Special Court from announcing its verdict. The Islamabad High Court restrained the Special Court from pronouncing the verdict until Musharraf (who was absconding and had never appeared before the court) was given another chance to defend himself. Meanwhile, the Lahore High Court jumped in and questioned the entire basis of the treason trial. But in the end, the Special Court decided to bite the bullet and announce the verdict.
In some ways, the death sentence for Musharraf is only symbolic. Chances are that Musharraf, who is reportedly very sick and unlikely to ever come back alive to Pakistan (he is currently living in UAE), will never be actually hanged. Apart from all legal challenges that are likely to be mounted and the lengths to which the army will go to ensure that this ruling dies before Musharraf — the army didn’t even allow Musharraf to be present in court and had whisked him away to a hospital and then later orchestrated, rather forced the judiciary and the then government to allow him to leave the country, is certainly not going to allow him to be ‘humiliated’, much less hanged by the ‘bloody civilians.’
Nevertheless, even though dictators before Musharraf have also had their actions ruled unconstitutional by the courts — always after they were no longer in power — the fact that a former army chief has now been pronounced guilty under Article 6 could have serious repercussions on the politics of Pakistan. Coming as it does amidst the entire controversy over the extension given to the current army chief and the Supreme Court demanding that parliament make a law on the issue of terms of service of the armed forces chiefs, the Musharraf ruling is not likely to be received well by the all-powerful military in Pakistan. It isn’t so much about Musharraf the person — he is irrelevant — but more about Musharraf the former chief. In other words, the impact of the current spate of rulings against the military — the Peshawar High Court declaring the ‘internment centres’ unconstitutional, the Supreme Court ruling on the extension issue and now the Musharraf sentence — on the corporate interests of the Pakistan Army and the dent on its supremacy will almost certainly invite a big push back.
Questions will definitely be raised, and conspiracy theories conjured up, about what the judiciary is trying to do by taking on the army so directly. Are the judges trying to emerge as a power centre of their own rather than remaining ‘Lions under the Throne’? Or is it all part of a game of smoke and mirrors, the byzantine intrigues that are so Pakistan? The reason for such questions is simple. For all its grandstanding, the judiciary in Pakistan has always known its limits and limitations, especially when it comes to the army. So what has changed that the judges are now displaying such intrepidness? What or who is behind the Pakistani judges having suddenly discovered their spine? It is after all the same judiciary that virtually summarily sacked a judge of the Islamabad High Court for accusing the ISI of trying to influence him to rule against Nawaz Sharif. It is also the same judiciary that put in the dock a brother judge, Qazi Faez Isa, who dared to pass strictures against the ISI and state machinery for backing terrorists and extremists. It is the same judiciary that treated with kid gloves a mass murderer police officer, Rao Anwar, who has been under the protection of the military’s intelligence agencies.
Whatever the reason for the assertion of the judiciary against the military, it is now going to prompt a new interplay between the civilian government, military, opposition and the judiciary. The civilian government is already showing signs of exasperation with the judges, not just over its rulings on matters related to the military but also the relief it has been giving to bêtes noires of the current regime, namely the Sharif family and Asif Zardari. The first salvo against the judiciary was fired when the government amended the rules of the parliamentary committee on judicial appointments in order to interview candidates for the various high courts. This is being seen as the first challenge to the judiciary which has arrogated to itself the right to appoint judges without any real oversight by parliament. Although the opposition parties have welcomed this change, it will probably weigh its options on how far to go with the government (which has been brazenly hounding it) to rein in the judiciary.
The military will also be smarting under the rebuffs it has received at the hands of the judges. Given that the current army chief will want the opposition’s cooperation to get the law on his extension passed without much ado (otherwise it would make him even more controversial), he will also be looking to reach out to the opposition parties. The quid pro quo with the opposition could however rub the government the wrong way. Unless the entire political class closes ranks and the army backs them, it will be difficult to rein in the judges, who would also try and protect their turf by aligning and cutting deals with the other components of the power structure.
The thing is that over the last decade or so the Pakistani power structure comprises a quartet — army, civilian government, opposition and judiciary. Unless three components of this quartet get together, it is difficult to take action against the fourth. As things stand, the army and the government claim to be on the same page. The judiciary for now is standing apart. If the opposition girds itself up, closes ranks and backs the judges, then it will be difficult for the government and military to do very much without shaking up the system to its core. If however the opposition remains split with various members trying to cut their own deals with the government and the military, then it will be relatively easier for the military and government to clip the wings of the judges and make them compliant. There is also the possibility of the military and opposition closing ranks (because of reports of some unhappiness in the army with the sheer incompetence and ineptness of Imran Khan and his cronies) and the government and judiciary remaining at odds. In the event, it will be curtains for Imran Khan and there is a good chance of the judiciary receiving its comeuppance.
The power dynamics in Pakistan are in a state of flux. The old equilibrium has been disturbed and there is a new realignment of forces underway to reach a new equilibrium, even if an unstable one. The events flowing out of the Musharraf verdict will only add more urgency in the quest for this new symmetry.
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Sushant Sareen is Senior Fellow at Observer Research Foundation. His published works include: Balochistan: Forgotten War, Forsaken People (Monograph, 2017) Corridor Calculus: China-Pakistan Economic Corridor & China’s comprador ...Read More +