Pakistan still caught between judges and generals
“We must understand that democracy cannot work in a hot climate, to have democracy we must have a cold climate like Britain”
In the eyes of Pakistan's constitution former military dictator General Pervez Musharraf committed high treason, according to a special court, by subverting country's supreme law through imposing the emergency rule in 2007.
And the special court sentenced him to death in line with the provisions of the constitution and the high treason punishment law.
But Pakistan army has a different view.
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It claims Gen Musharraf did not commit high treason. In its view, Musharraf cannot be a traitor as he served the country for 40 years and it announced that it would stand by the deposed military dictator, according to a statement issued by Pakistan army.
The manner in which the army issued the statement is contradictory with democratic norms and values. It however suits the legacy of the Pakistan army.
They issued the statement after a meeting of the top military leadership held at the General Headquarters in Rawalpindi in the wake of the judgement.
The Imran Khan government did not waste time to toe the army line.
Terming the trial against Musharraf "unfair", the Pakistan Tehreek-i-Insaf government on Tuesday night decided to defend Gen Musharraf during the hearing of an appeal to be filed on his behalf.
Flanked by Special Assistant to the Prime Minister on Information Firdous Ashiq Awan, Pakistan Attorney General Anwar Mansoor in a late-night joint press conference made the announcement.
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The army's statement released by the ISPR is curious. It reads: "Armed Forces of Pakistan expect that justice will be dispensed in line with Constitution of Islamic Republic of Pakistan."
What does the constitution say about this?
Article 6 of the Constitution says: "Any person who abrogates or subverts or suspends or hold in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance the Constitution by use of force or show force or by any other unconstitutional means shall be guilty of high treason."
This provision was included in the constitution in 1973 and it was modified in an amendment in 2010.
In 1973, the Pakistan parliament also enacted the high treason (punishment) act with a provision for death or lifetime imprisonment for high treason.
In essence, the special court consisting of three High Court judges of Peshawar, Sindh, and Lahore upheld the spirit of the constitution by sentencing Musharraf to death.
Musharraf has become the first military usurper who has been convicted and sentenced for subverting the constitution.
He suspended the constitution and imposed the state of emergency in 2007 in a bid to end an eight-month crisis over his rule fueled by challenges from a hostile judiciary, Islamist militants and political rivals.
Gen Musharraf also committed the same offence when he grabbed state power by overthrowing the elected government of Nawaz Sharif in 1999.
What Gen Musharraf did in 1999 was nothing new in the history of Pakistan. He followed his predecessors Gen Ayub Khan, Gen Yahiya Khan and Gen Zia-ul-Haq.
Pakistan's politics was never free of the dominance of the army.
It is widely believed that the present Imran Khan government is not free from the influence of the army either.
It is alleged that Khan party won the last election banking on the blessings of Pakistan army.
Therefore, it is not surprising that the Khan government will act in line with the army's strategy to defend Gen Musharraf.
The army's uncontrolled dominance over politics has given birth to a popular saying that 'every country has an army, but Pakistan army has a country.'
And most intriguingly, Pakistan army got the country's top court judges beside them to build its powerbase.
Due to army's interference and unconstitutional takeover, Pakistan had to wait for more than two decades to hold its first general election after its independence in 1947.
Pakistan's parliament, and federal and provincial governments completed their five-year constitutional five-year term in 2013 for the first time in the country's history, setting the stage for the first democratic transition.
THE STORY OF JUDGES & GENERALS
Less than a decade after the birth of Pakistan, its army grabbed state power and ruled the country for many years.
The story began in a peculiar way.
The first Constituent Assembly that was formed to make Pakistan's constitution was suddenly dissolved in 1954 by then governor general Ghulam Mohammad.
As its legality was challenged, the Supreme Court led by Chief Justice Muhammad Munir validated the dissolution.
Political crisis deepened in Pakistan.
On the night of 7th October 1958, then president Iskander Mirza declared martial law, abrogated the constitution enacted in 1956, dissolved the legislatures and banned political parties. He appointed then army chief Gen Ayub Khan the chief martial law administrator. He had done all this at the instigation of Gen Ayub Khan.
But Mirza could survive only 20 days before Gen Ayub Khan grabbed state power. Mirza was arrested and sent to exile in London.
After grabbing state power, Gen Ayub in his address to the nation bewildered many with his remarks: "we must understand that democracy cannot work in a hot climate, to have democracy we must have a cold climate like Britain."
The legitimacy of the martial law administration came under judicial scrutiny.
When Iskander Mirza dissolved the parliament and announced martial law, Chief Justice Muhammad Munir and the Supreme Court were readily available to place a judicial stamp of approval on what had taken place.
The Supreme Court under the leadership of Justice Munir legalised all illegal actions by invoking a spurious constitutional rationale called "the doctrine of necessity". The judges concluded that a successful revolution took place under Iskandar Mirza.
Thus Chief Justice Munir and his fellow judges wrote a stunning judgement signing the death warrant for Pakistan's democracy.
Gen Ayub Khan happily ruled the country as chief martial law administrator and later president until he was overthrown by then army chief Gen Yahiya Khan in March 1969. Gen Yahiya declared martial law and abrogated the constitution of 1962.
Gen Yahiya, who assumed the presidency, presided over the genocide in the then East Pakistan [now Bangladesh] by Pakistan army, to thwart the birth of Bangladesh.
He continued as the president until December 1971 when Zulfikar Ali Bhutto became the president after Pakistan army surrendered in Dhaka.
It took 15 years for the Pakistan Supreme Court to wipe the ignominy of chief justice Munir and his colleagues.
The legality of Gen Yahiya Khan's takeover and martial law regime was challenged. The Supreme Court led by Chief Justice Hamoodur Rahman and his fellow judges rejected the doctrine of necessity and the judgment delivered by chief justice Munir. They found it untenable to give legitimacy to "every person who were successful in grabbing power".
The Supreme Court of Pakistan declared Yahiya Khan's martial law to be illegal. The decision was announced four months after the departure of the army ruler Gen Yahiya Khan.
Following the apex court verdict, the Pakistan government included the stringent provision against military takeover in its constitution enacted in 1973.
But, the stringent constitutional provision could not prevent Gen Zia-ul-Haq from staging a coup and declaring martial law by overthrowing the Zulfikar Ali Bhutto government in 1977.
Bhutto and ten other leaders of the Pakistan People's Party were arrested. The Supreme Court was petitioned by Nusrat Bhutto for the release of Zulfikar Ali Bhutto. The newly appointed Chief Justice was Sheikh Anwarul Haq, the general's personal friend. The Court now did a reverse flip.
The court propounded a new and dubious rationale. They gave judicial sanction to Gen Zia's regime by citing widespread disturbances and loss of confidence in the civilian administration.
Bhutto was sentenced to death by the very same Chief Justice heading the bench.
The death of Gen Zia-ul-Haq in a plane crash in 1988 paved the way for restoration of democracy in Pakistan. But it experienced political turmoil with unstable governments, due to power struggle among the politicians.
Then came Gen Musharraf who overthrew the Nawaz Sharif government in a military coup in 1999 and grabbed state power. He became president in 2001 and continued until he was forced to stepdown in 2008 following a grave political crisis.
He was convicted in a case filed in 2013 by the government of Nawaz Sharif who was unseated by Gen Musharraf in 1999.
Gen Musharraf, now in Dubai, need not to worry much as the Pakistan army and the government announced that they would stand by him.
Given the history, it is not unlikely that Gen Musharraf will be acquitted of the charge by the top court.
After all, the story of general and judges of Pakistan suggests nothing is impossible for them.
