Death penalty for Musharraf: The case reveals the friction between Pakistan’s military and judiciary

When a former military ruler is convicted and handed the death sentence in a country which has been under dictatorships for the better part of its existence, it is no less than history being made. This is the first time in Pakistan’s history that a former military chief has been declared guilty of high treason for suspending the country’s Constitution.

The verdict of a special court against former president Pervez Musharraf is a landmark development in many ways. It has challenged the military’s predominance and demonstrates the growing assertiveness of the judiciary. The death sentence may not be implemented but the court ruling carries far-reaching political implications. The verdict sends a strong message to potential adventurists.

Musharraf’s treason trial had become an explosive political issue and had also been a cause of tension between the military and the government of former prime minister Nawaz Sharif. The military was surely not happy with its former chief being put in the dock on treason charges, and predictably his conviction has provoked a robust reaction from the military leadership that had rejected the court order. The military leadership has come out strongly in support of its former chief.

First such case

Many Pakistani political leaders have faced treason charges, but this is the first time that a former head of state has been convicted under Article 6 of the Constitution. The case had dragged on for more than five years with the bench changing several times. Musharraf was indicted in 2014 for imposing a state of emergency on November 3, 2007.

There had been strong apprehension that the trial would never reach its conclusion because of reported resistance from the military. Despite repeated summons, Musharraf failed to appear before the court. He has been out of the country for the past several years and is hospitalised for serious health problems. He left the country in March 2016. The court declared him an absconder.

It was evident that the Pakistan Tehreek-e-Insaf government had not been interested in pursuing the treason case. In a dramatic move last month, it pulled out its team of prosecutors and asked the court to halt the trial, saying the case against the former military leader was weak. The court verdict has worsened the government’s predicament. It remains to be seen whether it challenges Musharraf’s conviction in the supreme court. Musharraf is required to be present in the country to file an appeal against his conviction but his return is improbable.

The second coup

General Musharraf took power on October 12, 1999, in a coup that ousted Nawaz Sharif’s government. He stepped down as president in August 2008 under the threat of impeachment by the elected civilian government installed after the general elections that year. Interestingly, the treason case was filed more than five years after Musharraf’s exit, which came reportedly after a deal brokered by the US guaranteeing indemnity to the former president.

In a cable sent to Washington and leaked by WikiLeaks, the then American ambassador Anne Patterson reported that Asif Zardari, of Pakistan Peoples Party, had told her that he was committed to giving indemnity to Musharraf. The ambassador stressed that only the promise of indemnity had persuaded Musharraf to step down as president. The PPP government that came to power after the 2008 elections took oath from Musharraf who was still the president.

But the situation changed after the return to power of Nawaz Sharif as prime minister. For him, it seemed to be an opportunity to settle scores with a man who not only deposed him but also put him on trial for sedition. There’s certainly a revenge aspect to the decision to initiate the treason trial, though the government maintained that it only complied with the supreme court ruling.

Interestingly, the former military ruler was tried not for his ‘original sin’ of staging a coup against an elected government, but for imposing emergency and holding the Constitution in abeyance in 2007. The main argument for not charging Musharraf over the coup was that the supreme court and parliament indemnified his action. Many legal experts question whether the 2007 action alone provided sufficient grounds for his conviction under Article 6, ignoring the original takeover.

Facing mass protests against his government, Musharraf on November 3 suspended the constitution and declared a state of emergency in what analysts called the second coup. Most superior court judges, including the chief justice, were detained. The action also brought an end to his nine-year rule.

Musharraf has also been implicated in other cases including the Lal Masjid operation. A court has ordered the confiscation of all his properties and frozen his bank accounts.

Future uncertain

Apparently, the military leadership had distanced itself from Musharraf’s trial, but that’s not really the case. Commenting on Musharraf’s high treason trial in 2015, the then army chief general, Raheel Sharif, declared that the army would “preserve its own dignity and institutional pride”. It was evident that Musharraf had been protected by the military and it would not accept his conviction or what it described as “humiliation of the institution”.

Significantly, the Musharraf verdict came a day after the supreme court released its full judgement in army chief general Qamar Bajwa’s extension case. The court has allowed the army chief to stay in office for six months pending regularising of his extension through an act of parliament. That keeps the situation uncertain. The ruling has left many questions unanswered.

It has triggered a new debate whether it requires a constitutional amendment or just a change in rules. The decision has deepened the controversy over the extension of the army chief. The two court orders demonstrate an unprecedented assertion of authority by the country’s superior judiciary. That has led to a new conflict between the military and the judiciary that in turn could worsen the political crisis. It is not the end of the game yet. What happens next will be a serious test for the government as well as the system.

This article first appeared in Dawn.