The conviction of General Musharraf

The split 2-1 verdict announced by a three-member court in Islamabad on Dec. 17, holding former president and army chief General (r) Pervez Musharraf guilty of the offense of high treason and liable to be hanged till death, followed by the release of the detailed judgment, has opened up a fissure right through the middle of Pakistani society and body politic.

The verdict was received with outrage as an affront to the morale of the rank and file of the defense forces. High treason, the term used by the Constitution, is generally translated into Urdu by the media in terms that convey a sense of betrayal by a traitor to the nation. All manner of analysts turned up on television screens to claim that the former army chief had not betrayed the nation. He was no traitor.

The army’s outrage turned into something darker when the detailed judgment revealed the presiding judge had directed that in case the former president dies prior to the execution of the death sentence, his body be dragged to the boulevard in front of the parliament building in Islamabad and hung there for three days. 

The army spokesperson raised the specter of internal conspiracies to incite instability while vowing to protect the dignity of his institution and the motherland. The other judge who agreed with the guilty verdict expressly disagreed with this aspect of the judgment, rendering the barbaric stuff ineffective as merely the inoperative opinion of a single member of the bench. The third judge acquitted the accused general of all charges. The government, led by Prime Minister Imran Khan, scrambled to the army’s side, declaring its intent to move the supreme judicial council for the removal of the presiding judge who had demanded the dragging of the corpse and its hanging.

Leading political figures in the opposition at the time, including present Prime Minister Imran Khan, had rushed to describe the actions of General Musharraf of Nov. 3, 2007 as high treason.

Salman Akram Raja

Musharraf, then army chief, had seized power in a coup in Oct. 1999, toppling the government of Nawaz Sharif. Sharif was sent into a negotiated exile that lasted till 2008. The coup was subsequently ‘ratified’ by a parliament led by what was seen as the ‘king’s party’ after elections under martial law in 2001. 

The general was never put to trial for this coup. What he was tried for, was a second alleged ‘coup’ on Nov. 3, 2007, when in the midst of a bid to being elected president while remaining army chief-- a patently unconstitutional event-- he had moved against the superior judiciary likely to stand in his way. The chief justice of the supreme court, along with 60 other judges of the superior courts were illegally removed from office and put under house arrest. A proclamation of emergency was issued under the signatures of General Musharraf as army chief.

Leading political figures in the opposition at the time, including present Prime Minister Imran Khan, had rushed to describe the actions of General Musharraf of Nov. 3, 2007, as high treason. There ensued a period of constitutional deviation as regards the composition of the judiciary that came to an end only in March 2009 when the constitutional chief justice of the Supreme Court, along with other deposed judges, was restored. 

This was after Musharraf had been forced to resign by the Pakistan People’s Party government that had taken power after the general election of 2008, months after the assassination of Benazir Bhutto. The restored supreme court declared Musharraf’s actions of Nov. 3, to have been a subversion of the constitutional order of the state.

The government led by Nawaz Sharif that took office after the general election of 2013, proceeded to institute a case under Article 6 of the Constitution that declares the subversion or abrogation of the Constitution to be high treason, punishable with death or life imprisonment. It is this case that has now resulted in Musharraf’s conviction and the attendant death sentence. During the long trial, the defense legal team had little to offer by way of defense, except to say that those who had aided and abetted Musharraf should also have been charged for high treason. 

This was a demand that was taken to the Supreme Court during the trial and was rejected. The trial against the primary accused did not necessarily require the trial of others who might have colluded with him. This was for the state to determine in framing its case. Imran Khan’s government, after taking office, made no changes to the case as framed by the previous prosecution team. While Musharraf was allowed numerous opportunities to record his statement in his defense, through commission or video-link after he left the country in 2016, he refused to do so.

With this conviction, a basic question now confronts the state: Should the judicial system be allowed to convict for constitutional subversion, those who are revered by the people as guardians of the nation? Those who inspire the sons of the soil in the ranks, whose blood is the final guarantee of security? 

All martial laws of the past were imposed by generals who had fought for the nation. Is there a constitutional immunity to uniformed coup-makers despite Article 6 of the Constitution? The court convicting General Musharraf has answered this question. Now history must answer it. Will the state evolve to a democratic future or regress in the face of fury?

 

*The writer is an Advocate, Supreme Court of Pakistan.

Twitter Handle: @salmanAraja