Pakistan is witnessing a serious and unprecedented tussle between the army and the higher judiciary. The judiciary is flexing its muscles and asserting its authority in a manner never witnessed. In a landmark judgment, a special court in Pakistan had on December 17, 2019, convicted the former President, Pervez Musharraf, of high treason, and sentenced him to death under Article 6 of the Pakistan Constitution. A three-judge court was formed, under the orders of the Supreme Court to try Musharraf.

The charge against him was that he had imposed the Emergency, unlawfully, and had subvert the Constitution in November 2007. This is the first time in the history of Pakistan that a former President and army chief has been held guilty of high treason, and sentenced to death. The judiciary’s ringing assertion of authority was a warning to military and political adventurists. It bears recall that it was Nawab Sharif’s government that had filed a case of treason against Musharraf for proclamation of the Emergency and unlawful suspension of the Constitution.

The case was prolonged. President Musharraf was summoned to appear before the court, a number of times, but he avoided his presence, citing health issues and security concerns. He was permitted to leave the country, possibly with the court’s approval for medical treatment, and did not return. He was declared an absconder. Finally, the Supreme Court directed the special court to proceed with the trial in the absence of Musharraf. The special court completed the trial, and pronounced its stunning judgment.

The special court, headed by Justice Waqar Ahmed Seth, in 2-1 verdict held Musharraf guilty of high treason and sentenced him to death under Article 6 of the Pakistan Constitution. This was an unprecedented development, in a country that is virtually dominated by the army. Like Prussia of the 18th century, under Frederick the Great, “Pakistan is not a state with an army but an army with a state. For nearly six decades, the army has imposed martial law whenever it liked, and then forced the Parliament and judiciary to give it a fig-leaf of legitimacy.

The coup by Musharraf in 1999 was validated by the Supreme Court. It seems that the judiciary is no longer willing to play ball, as before. Initially, the army did not directly involve itself in the case, though it was extending covert support to the general. But now it has come out openly and brazenly in support of Musharraf, as it strongly feels that the verdict disgraces and belittles not only an individual but hits hard, where it hurts the most ~ the institution of the army, which views itself as the defender of Pakistan.

In a statement, the spokesman of the army, Major-General Asif Ghafoor, said, “General Musharraf has served the army for forty years for the defence of the country. He can never be a traitor. The judgment has caused lot of pain and anguish to the rank and file of the army. Taking cue from the army, the Government of Imran Khan has thrown its weight behind the general, and held that Musharraf was not given a fair trial, and sentenced to death in absentia.” Attorney General Anwar Mansur Khan said that the verdict was illegal as the requirements of a fair trial were not fulfilled.

Earlier, the Imran Khan government, with a view to delaying the case, had sacked the entire prosecution team. The idea was to to create legal lacunae to delay the case. It also went in for an appeal to the High Court to restrain the special court from delivering the judgment till the formation of a new government, extending the term of the prosecution team. In the well-crafted judgment, there is a controversial paragraph, which states, “We direct the law enforcement authorities to strive their best to apprehend the fugitive convict, and ensure that punishment is inflicted as per the laws, and if found dead, the corpse be dragged to the D Chowk, and hanged there for three days.”

This unnecessary and controversial paragraph was an obiter dictum, and not an operative part of a correct and bold judgment, but is now being used by the Ministers of the Government to impeach the credibility of the judge. Musharraf is filing an appeal to the Supreme Court against the verdict, but for this, he will have to return to Pakistan. He is unlikely to do so. It is also unlikely that he will be extradited from the UAE. Legal challenges and judicial reviews are, however, possible. The landmark judgment will have a significant impact on civil-military relationship, and particularly, the army judiciary relationship.

The judiciary has hit the army where it hurts it most; it has questioned its authority and dented its invincibility. Earlier, it had rebuffed the army and the government by overruling the government order extending the tenure of the army chief by another three years. The court directed the government to get the rules regarding service extension of the Chief ratified by the Parliament. It had allowed General Qamar Javed Bajwa an interim extension of only six months. It is reported that the six top aggrieved generals lent support to the judiciary. The extension of General Bajwa’s tenure blocks their chances of occupying the top slot.

The assertion of the judicial authority has come at a time when there is simmering popular discontent and disaffection against the army and the civilian government in Pakistan because of the unstable and chaotic situation prevailing in Cruel treatment of the former Prime Minister Nawaz Sharif, who remains a popular figure in Punjab, has embittered many against the government as well as the army.A gain, interference by the army in matters pertaining to internal security in management has progressively led to “contraction and disfiguration of its image.”

(Brigadier A.R. Siddiqui. Military in Pakistan ~ Image and Realty. Another former military chief, General Jahangir Karamat, has opined, “As far as the track record of the military as the rulers is concerned, I am afraid, it is not better than the civilians.” The Pakistan army has great institutional pride, and over the years, by remaining in the driver’s seat, it has nurtured contempt for the civilian government. The Army’s response to the new and unexpected challenge from the judiciary should be observed with interest. Weak and effete political parties, perhaps, will not be able to take advantage of the situation, and assert themselves vis-à-vis the army.

(The writer, Senior Fellow of the Institute of Social Sciences, had served as Director-General, National Human Rights Commission, and of the National Police Academy)