Musharraf death sentence — Justice served or denied?

On December 17th after a long-drawn-out trial former military ruler retired General Musharraf was found “guilty of high treason and sentenced to death” by a three judges bank in a 2:1 split vote. The trial had been initiated for his abrogation of the Constitution of Pakistan and the declaration of a state of emergency as President on 7 November 2007. In the course he placed several key judges under house arrest in Islamabad and elsewhere in Pakistan. The verdict is based on Article 6 of the Constitution which 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.” The punishment for high treason is death or lifetime imprisonment, according to the High Treason (Punishment) Act, 1973. The trial of Gen. Musharraf for high treason was initiated in 2013 under the Nawaz Sharif government and that very fact suggests that it was a kind of revenge for attempts of the Musharraf government to prosecute Nawaz Sharif for corruption that made him and his family render an apology and leave the country for a number of years. Musharraf was finally indicted in March 2014 but left the country for medical treatment in 2016. He is still abroad today. His trial proceeded at the usual in Pakistan snail’s pace and obviously those interested in his conviction tried to bring him back to the country. That was why Musharraf was not given a chance to record his statement under Section 342 (of the Constitution) or to produce his witnesses. Musharraf’s defence team requested the court to allow the video statement of the accused to be recorded but this was denied. The court said that he must be brought back to Pakistan or else his statement will not be recorded. Since November 2019 the verdict has been pending. How should one related to the verdict? Is it justice delivered or denied? The reactions to the death verdict that have come out since it was announced can be roughly categorized in two groups: those who welcomed the verdict and those who oppose it. The first group includes the opposition, first and foremost PML(N) and the religious parties. The second group has the army and the PTI. What are the arguments that are brought forward in favour or against this crucial verdict? For the PML(N) the guilty verdict in a way compensates them for the “injustice” that has been done to Nawaz and family. One can also hear and feel the blatant malice with which they welcome the conviction of a member of the Armed Forces even though retired. They justify their welcoming comments with the argument that finally a military ruler has been convicted and this conviction would establish a very strong legal deterrence against future interventions in which the Constitution can be suspended. This argument does not hold much strength. In the first place it was the judiciary of Pakistan that has legally justified consecutive military take-overs with the infamous ‘doctrine of necessity’. Furthermore, the way this trial was conducted shows that the judiciary has made itself a tool in the hands of some, this time with pots of money, against others. There is a long way to go for the judiciary to become independent. The argument brought forward by the religious parties is that ‘nobody is above the law’, that would be true if the law would serve justice only be applied justly. But the law was not applied justly as we have seen. Without a statement of the accused the legal procedure is incomplete. We can find that in other cases entire hearings had been held via video link and many people had recorded their statements from abroad in the past but in this case this possibility was rejected by the court. The missing statement of the accused makes the whole process controversial and unlawful. When we consider the question if this trial was initiated in order to deliver justice we come across another curious fact as well. Justice would imply that all people who were involved in that fatal decision on 7th November 2007. No effort has been undertaken to bring other people like former PM Shaukat Aziz, bureaucrats, army officers, politician, etc, who were very much part of the decision to justice. Shame on them for not standing by Musharraf voluntarily as they should have. The involvement of others should have been investigated. The argument goes that the military has been dominating politics for decades and this verdict would be bound to change this situation. This argument brought forward by a well-known columnist not only is faulty, it is a fairy tale to imagine that. There are many signs that the Pakistan Army has given up the idea ‘to lead from the front’ in civilian politics and chances are good that even without slaughtering Gen. Musharraf no more army coups will take place. Because of the exceedingly dangerous neighbourhood and the security situation the army has its hand full to keep our borders clear and fight hybrid warfare inside the country and beyond. In any case the army has been filling the void that mismanaged and weakened by indiscipline and the corruption in civilian institutions which Asif Zardari and Nawaz Sharif have institutionalised during their tenures. Moreover his purported act of violation of the Constitution “as treason” is farfetched. Anyone who says otherwise is a hypocrite! What about corruption while being Head of Govt or in Cabinet, in that case is that than not “treason”? The army and the PTI government are justifiably unhappy with the verdict. The trial was not just because every person has to be guaranteed a fair trial under Article 10-A of the Constitution,” said the Attorney General, given this fact the verdict will be scrapped when appealed. The army is unhappy with the fact that one of their own is convicted and has expressed ‘pain and anguish’. While I do not agree that “the man has served the country for over 40 years cannot be called a traitor, the fact remains that he was Chief of the Army that has rendered huge sacrifice for this country, it is unbecoming that he be treated a such. I may have had some differences with him on issues but to call this soldier a traitor is unjust and obnoxious. Musharraf not have seen combat in any of the wars Pakistani fought, he was nevertheless well known to be a braveman. The due legal course having been ignored the impression of victimization is quite clear. I am of the belief the Lt Gen Ali Kuli Khan Khattak should have been the COAS, Pakistan’s destiny changed when he was deprived when he was unjustifiably deprived of this both on merit and seniority. However once Musharraf was Chief, this was a fact of life and other than his unnecessary aberration for Ali, he was always a good soldier and a good human being. The fact remains that in his first three years as Head of Govt he did many, many positive things, including instituting NAB and giving total freedom to the media, some say to the extent of “licence” nowhere allowed in the world. According to German “Commando Extraordinary” Col Otto Von Skorzeny, “politics is the soldiers’ curse!” Once Musharraf started dealing with politicians to stay in power he went horribly wrong. Musharraf was unfailingly kind to me despite his minions who have since, except for Brig Ijaz Hussain Shah, disappeared into the blue. I can never forget it. I am writing this for the past, present and future Chiefs of this Army as much for Musharraf himself. Now that the detailed verdict has come out, it would be interesting to give both legal and objective comments once we have gone through it in detail. However at first glance Para 66 is most revealing about the mindset of the Honourable Judges who wrote the judgment, to quote, “We direct the Law Enforcement Agencies to strive their level best to apprehend the fugitive/convict and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk, Islamabad, Pakistan and be hanged for 03 days”, unquote. For God’s sake, can you believe this medieval and terrible comment was written by members of our superior judiciary in this day and age? This is sheer madness! All our military coups have been bloodless, this is an open invitation for retaliation in kind, and at D Chowk! The verdict in the Musharraf trial comes at a time when Pakistan is on a course of cautious stabilization economically and politically. This verdict could upset the equilibrium between army and civilian rule that has been a basis for the smooth running of our country. One might like or dislike Gen Musharraf and what he has done in the course of his career but he is surely not worth risking upsetting the apple cart. Neglecting the due course of law the verdict is thus unjust, injustice breeds resentment, discontent and possibly reaction things that Pakistan does not need. This must be reviewed. One can never accept that the Chief of the Army whose uniform I once wore to be treated in this obnoxious and unjust manner! Leave the Army alone! (the writer is a defence and security analyst)