After twelve years of imposing an emergency, abrogating the constitution for the second time, issuing an extra constitutional order (Provisional Constitutional Order) putting 60 judges of the superior judiciary under house arrest, former military dictator General Pervez Musharraf has been pronounced guilty of the violation of Article 6 of Pakistan's constitution. A special court has awarded him the maximum punishment of death penalty. It is for the first time in the 72-year history of the country that the article has ever been invoked.
The verdict comes on the heels of the Supreme Court of Pakistan’s detailed verdict on 16 December, as the court had clearly directed the government and the parliament to either legislate and provide legal cover to the extension of Army Chief General Qamar Bajwa within six months, or he would stand retired. Both decisions of 16 December — on the extension of General Bajwa and the death penalty awarded to General Musharraf the very next day — have put the powerful military and the judiciary in a confrontation mode, while the Imran Khan government, which is clearly siding with the military, looks ‘irrelevant’ in the saga.
Death Sentence to Musharraf: ‘Pain & Anguish’ of Pakistan Army
The spokesman of the military, General Asif Ghafoor, issued a strong statement against the verdict expressing the ‘pain and anguish’ of the military and criticised it for not following the constitutional obligation as the military considered it a decision made in ‘haste’. Most political parties with the exception of the ruling PTI (led by Imran Khan) hailed the verdict. While Imran Khan, who had been pleading the sentencing of the former military dictator under the same article during his opposition days, the now ‘Twitter-savvy’ prime minister is conspicuous by his silence, even as most of his Cabinet members, including the Attorney General, have criticised the verdict and sided with General Musharraf.
What the military and the ruling PTI dubbed as a verdict made in ‘haste’ actually took five years: the special court was reconstituted six times, and had 125 hearings.
The former military dictator was indicted in March 2014 and had pleaded not guilty on all five counts, but did not record his statement. General Pervez Musharraf left the country in March 2016 for four to six weeks on medical grounds, and the government of the then Prime Minister Nawaz Sharif allowed him to leave the country.
Since then, the former military dictator was asked to return and record his statement, but on one pretext or the other, he refused to return. Pervez Musharraf was even allowed to record his statement over video, but he refused. As the case kept dragging on for six years, the Supreme Court in April had directed the Special Court to try him in absentia. The Supreme Court had declared that since Pervez Musharraf has absconded, he had lost the right to defend himself.
The Musharraf vs Sharif Conflict
General Pervez Musharraf had overthrown the elected government of Nawaz Sharif on 12 October 1999, after he developed differences with the government post the Kargil misadventure that brought India and Pakistan to war. Nawaz Sharif and his government claimed that the General had taken the decision of the Kargil war without the knowledge and the consent of the government. Nawaz Sharif had to fly to Washington on 4 July 1999 to meet then US President Bill Clinton to seek his intervention to end the war.
Although the war ended, the conflict between Musharraf and Nawaz Sharif increased, and on 12 October 1999, Nawaz Sharif deposed Gen Musharraf and appointed then DG, ISI Gen Ziauddin Butt as the next army chief.
Gen Musharraf who was on a plane flying home from Sri Lanka, was initially not allowed to land in Pakistan by the Nawaz Sharif government, but the loyal generals of Musharraf organised a quick coup, allowing the plane to eventually land in Karachi, even as the Nawaz Sharif government was overthrown. Nawaz Sharif was sentenced for life under the charges of plane hijacking, and later allowed by Gen Musharraf, under Saudi and US pressure, to go into exile in December 2000.
The Supreme Court in 2000 not only legitimised the coup, but also allowed the military dictator to make amendments in the constitution. After the 2002 elections, the parliament under the 17th amendment, provided indemnity to the 1991 coup. However, the 3 November 2007 emergency by Musharraf could not be indemnified, neither by the Supreme Court nor the parliament. The 18th amendment of the constitution in 2010 also amended Article 6 and made the aiding, abetting and legitimising of the coup akin to the violation of the same Article, and hence, made it impossible for the judiciary to legitimise the coups in the future.
What Led to Musharraf’s Resignation in 2008?
When the PPP formed its government in March 2008, Gen Musharraf was still the President, but the ruling party with the help of the PML-N of Nawaz Sharif, started impeachment proceedings against him and he was forced to resign on 17 August 2008 in exchange for an indemnity by Asif Zardari, as revealed through Wikileaks. Soon after his resignation, Gen Musharraf left the country and lived most of his time in the UK till March 2013, when he decided to return on the eve of the elections due in May that year. Gen Kayani was still the army chief, and Gen Musharraf is on record criticising Gen Kayani for his role in his removal. There is enough evidence on record that the military tried to persuade Gen Musharraf to stay put and not return to Pakistan, as it would not be in a position to defend him in case of trial initiated against him.
The weak PPP govt did not try him under the same Article during its tenure till 2013, despite the fact that in July 2009, the Supreme Court had clearly ruled that Gen Musharraf had violated Article 6 of the constitution when he imposed an emergency on 3 November 2007.
Since the government of the day has to file a complaint and ask the Supreme Court to constitute the Special Court, it couldn’t take place till the PML-N took over in June 2013.
Nawaz Sharif Govt’s Proceedings Against Musharraf
Within weeks of taking over as the prime minister, Nawaz Sharif on 24 June 2013 announced on the floor of the lower house that his government had decided to initiate a high treason trial against Gen Musharraf. In December 2013 the trial officially started, and in March 2014, Gen Musharraf was officially indicted and his bail was cancelled. On 3 January 2014, when Gen Musharraf was supposed to appear in the Special Court, his escorting forces led him to a military hospital in nearby Garrison town, Rawalpindi.
It was clear that after the new army Chief Gen Raheel Sharif took over in the end of November 2013, the military high command had put its foot down to provide reprieve to Gen Musharraf. That is why during the entire tenure of Gen Raheel Sharif the case of Gen Musharraf could not proceed, and eventually in March 2016 he was allowed to travel abroad by the PML-N government to seek medical treatment. Nine months after he left the country, Gen Musharraf in December 2016, in a TV interview, thanked Gen Raheel Sharif for pressurising the Nawaz Sharif government and ‘influencing’ the courts to let him out of the country.
Will the Verdict Against Musharraf be Implemented?
The legal experts are divided if Gen Musharraf will be allowed to file an appeal at the Supreme Court through his legal counsels in absentia, or he would be forced to return to the country to file the appeal in person. The appeal has to be filed within 30 days of the verdict in this case.
It doesn’t look like the verdict will be implemented as either Gen Musharraf would refuse to return to the country or there is also a possibility of the presidential pardon in case the Supreme Court upholds the Special Court’s verdict.
What is clear is that the judiciary has refused to buckle down, and the extreme punishment to the coup-making General may work as a deterrent to future coup-makers — even if the punishment is not implemented.
(Murtaza Solangi is a broadcast journalist based in Islamabad, and is a former Director General of Pakistan Broadcasting Corporation. He tweets @murtazasolangi. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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