There are at least four firsts in the December 17 judgment, and in the detailed judgment on December 19, of the special court in Pakistan that held Pervez Musharraf guilty of high treason and sentenced him to death: This is the first case in Pakistan being tried under Article 6 of the constitution that deals with treason and abrogation of the constitution; it is the first time that an army chief is being tried for treason and it is the first time that an army chief has actually been convicted. These three firsts are historic in themselves and will have important consequences for Pakistan’s democratic evolution.
The fourth element is the nature of the punishment: If Musharraf were to die before being punished then his corpse is to be hung for three days in D Chowk in Islamabad. Not only is this prescription unusual but clearly in contravention of national and international law, and against every principle of human decency.
Nawaz Sharif’s government had filed a treason case against Musharraf on December 12, 2013, for suspension of the constitution and proclamation of emergency on November 3, 2007. A three-member special court indicted Musharraf in March 2014. The prosecution completed its case on September 18, 2014. Further proceedings, including the recording of Musharraf’s statement, were stalled since he was allowed to leave the country for medical treatment to the United Arab Emirates in March 2016, with a nod from the courts. He has not returned since then. He was subsequently declared an absconder for failing to appear before the court, despite multiple summons.
Pakistan’s legal system gave Musharraf every opportunity to defend himself either by personal appearance or even deposition by electronic and written means. Despite this, Musharraf did not return, citing health issues or security concerns and neither did he make any deposition. Finally, in April 2019, the Supreme Court directed the special court to proceed against Musharraf even in his absence under Section 9 of the High Treason (Punishment) Act, 1973. Accordingly, the special court went ahead and on November 19 it reserved its verdict, to be announced on November 28.
Realising that the judgment was near, the Imran Khan government tried to bail out Musharraf. First, it sacked the entire prosecution team on October 23. The intention was to create legal lacunae to delay the case. However, the special court sidestepped this by taking the view that the prosecution’s case was closed in September 2014.
Second, in a bizarre move, on November 25, the government petitioned the Islamabad High Court (IHC) that the special court be restrained from passing final judgment and to suspend its proceedings until the formation of a new prosecution team. On November 27, a day before the special court was to announce its judgment, the IHC stopped it from issuing the verdict. The IHC directed the federal government to notify a new prosecution team by December 5 and ordered the special court to fix a date “for affording a reasonable opportunity of hearing” to the notified prosecution team as well as the counsel appointed for Musharraf.
The question being asked was: How could a government that lost no opportunity to portray itself as a champion of insaf or justice, and was determined to punish the privileged few, try and delay if not subvert the decision in Musharraf’s case? This was a shocking U-turn even for Imran Khan who has many such U-turns under his belt.
Musharraf can appeal against the decision but will have to return to Pakistan to do so. It is unlikely that he will. It is also unlikely that he will be extradited from the UAE. Hence, implementation of the decision is problematic.
Government ministers have indicated that they will file a reference against the judge of the special court who had advocated the peculiar nature of carrying out the punishment besides challenging the verdict in the supreme court. The latter would be unprecedented since it would mean that one party (the government-prosecution) after having won its case, will appeal against its own victory.
While legal challenges and judicial reviews are possible and the final outcome may well differ from the special court judgment, the fact remains that a verdict holding an army chief guilty of treason has been delivered. It will go into the law books. The real import of the judgment is the strong message it sends to army chiefs. This will make them hesitate before abrogating the constitution. The chiefs will thus have to rest content with pulling the strings from behind the scene.
Musharraf’s case, seen in conjunction with the case pertaining to the extension of army chief General Qamar Bajwa, has definitely sullied the institutional image and charisma of the army in Pakistan. Both cases give the impression of judicial independence and assertion. Yet, the army is bound to find a way to rescue its image and clout in the system. The unusual Inter Services Public Relations (ISPR) press release on December 17 expressing “pain and anguish” at the judgment and asking that justice be dispensed as also the December 19 press conference where the army spokesman said that the Pakistan Army knew how to defend its honour, are clear indicators of this.
This article first appeared in the print edition on December 23, 2019 under the title “A rare reprimand”. Devasher is Member, National Security Advisory Board. Views are personal.
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