Death penalty for Musharraf: Are Pakistan courts now too independent and free of pressure?

The verdict’s implementation in all likelihood won’t happen. But the fact that Pakistan's judicial system came this far does not go in favour of Army Chief Bajwa.

Former Pakistan President Pervez Musharraf | Flickr

Pakistan’s politics often starts a morning with bad news, but that was not the case on 17 December 2019. Hearing the treason case against former military dictator retired General Pervez Musharraf, a special court in Islamabad sentenced the former president to death for imposing emergency in Pakistan on 3 November 2007. For a country that has experienced several military coups, the decision by the three-member bench, split 2-1, is unprecedented. It’s unlikely, however, that the court’s verdict will be implemented, or that it will even change the civil-military relations’ imbalance as Dawn’s resident editor, Fahd Hussain, has suggested.

When the treason case was filed by the Pakistan Muslim League–Nawaz (PML-N) in 2013, I did not support it because it would have distracted the civilian government and embroiled it in a needless battle with the Pakistan Army, which is exactly what happened. Then-army chief Gen Raheel Sharif not only helped his senior, General Musharraf, but also started a propaganda war against the elected government of then-PM Nawaz Sharif. The treason case was pointless because it was simply unimaginable that a senior army officer in Pakistan could be tried for treason on account of taking power, or that he could be convicted in a case.

Unsurprisingly, the Pakistan Army came to Gen Musharraf’s aid on 18 April 2013, when it helped him flee the Islamabad High Court and escape arrest. Pakistan Supreme Court’s Chief Justice at the time was Iftikhar Muhammad Chaudhry, whom Musharraf had forcibly removed in 2007 from the same post – a decision that was overturned later. Throughout the remaining tenure of Justice Chaudhry as the chief justice, Musharraf did not attend proceedings in any of the higher courts. However, there were restrictions that barred him from travelling abroad, although those were later removed by the Supreme Court on 23 June 2014.

It was on 16 March 2016 that Gen Musharraf travelled abroad for “medical treatment”. Since then, he has always excused himself from returning to Pakistan to stand trial for the case citing health reasons. But Gen Musharraf’s health never stopped him from attending functions or meeting people while visiting the UAE. On 11 May 2016, the special court, which the Supreme Court had constituted in November 2013, declared Gen Musharraf an absconder.

Regardless of how one looks at it, the court decision awarding the death penalty to Gen Musharraf is indeed thrilling. Never in the history of Pakistan has a senior general of Musharraf’s rank been convicted. In October 2012, the Supreme Court had held former army chief Mirza Aslam Beg and former ISI chief Lt Gen Asad Durrani guilty of bribing several politicians to rig the 1990 general elections but the verdict turned out to be ineffective because the government could not act against the army and put the generals on trial.

Verdict means little

The sentencing of Pervez Musharraf does seem to indicate that Pakistan’s not-so-perfect judiciary has taken a series of steps since 2007 to remove the possibility of military officers playing around with the 1973 Constitution or law in general to gain direct access to power. The post-Iftikhar Chaudhry judiciary, although not perfect, is distinguishable from its predecessors that used to justify military takeover on the basis of Kelsen’s law of necessity. It has certainly tried to position itself, at times, as an alternative institution with the legal capacity to challenge both politicians and Pakistan’s supremely powerful military.

And yet, there is no guarantee that the Islamabad court’s sentencing of Gen Musharraf would get implemented, not any time soon at least. It is at best a good distraction. The Imran Khan government, which is already neck-deep in trouble trying to secure a second tenure for the current army chief, Gen Qamar Javed Bajwa, would do everything in its capacity to not implement the order. It would try to rescue itself in the eyes of the army by appealing to the Supreme Court. Minister Fawad Chaudhry has already indicated as much, questioning the decision since it could “divide the nation”.

Sources believe that the Imran Khan government may also challenge the Supreme Court’s decision to extend General Bajwa’s tenure by just six months instead of the three years that PM Khan had initially okayed. Nonetheless, the government’s resistance would buy Musharraf some time as he looks into his ‘health’ issues to come up with new escape routes.

The unexplained

But the court decision raises a very important question: Does it mean that Pakistan’s courts have now become too independent and are free of all pressures? Obviously not. So why did the Pakistan Army allow it to happen?

The answer lies in the verdict’s implementation, which in all likelihood won’t happen. But the very fact that the judicial system came this far does not go in favour of the present army chief. Gen Bajwa’s men, who are already divided on the issue of his extension, may consider him even weaker than before. To many hawks in the armed forces, the former four-star chief, Gen Raheel Sharif, had proven himself to be more of a man by not allowing Musharraf’s humiliation and helping him escape, something Musharraf had confessed in an interview. So, if the court’s decision is implemented, it will add to Gen Bajwa’s sins rather than the judiciary’s victory.

Furthermore, the decision will not curtail Pakistan military’s actual power against the civilians. In fact, the judgment comes at a time when the army as an institution has changed its thinking about command and control – shifting its focus from control of government to control of governance. Since Raheel Sharif, the military has tried to implement and codify its control through other means. Army chief Gen Bajwa is formally a member of the Economic Advisory Council and was regularly seen meeting important economic and political stakeholders – from agriculturists and businessmen to media owners.

The modern-day Pakistan Army is weary of direct control, which is why the idea of Imran Khan as the prime minister and a key leader to replace the Bhuttos and the Sharifs was supported broadly by the echelons instead of just a few generals. A novice and a weakling like Khan allows the General Headquarters greater space to manoeuvre without taking responsibility for bad outcomes. There is no shift in the army’s thinking about it guiding Pakistan on all strategic matters. This approach is linked with the army’s sense of superiority over the civilians.

There is also the issue of political capacity of the existing political parties from making use of this strategic opportunity of the decision being a proverbial crevice in the overall power structure of the state. The decision adds to the critical moment when team Bajwa and his opponents are all fighting a battle of their lives to gain ultimate power for the next three years or more. There could be short-term gains like Gen Bajwa and PM Khan’s removal but with no further expansion. The ability of the PML-N and the Pakistan Peoples Party to make use of any given situation is at its lowest. Caught in personal and narrow interests, the political parties may not be able to exploit the gains as they ought to.

Burdened with the thought, I, as a citizen, am reminded of an old Saraiki proverb/prayer for the former dictator: Jivo tey halaq thivo – may you live long and not die so you can suffer the consequences of your actions.

The author is Research Associate at SOAS, University of London and author of Military Inc: Inside Pakistan’s Military Economy. She tweets as @iamthedrifter. Views are personal.