Pakistan never goes off the media glare for one or the other reason. This time it is on account of the judiciary. First, there was the case of incumbent Chief of Army Staff (COAS)—Gen. Qamar Javed Bajwa’s three-year extension which was reduced to six months, after an intense legal battle, by the Supreme Court. Besides, raising a number of pertinent questions the apex court also categorically directed the federal government to enact legislation governing tenure conditions of the COAS within a period of six months. As the government was grappling with the situation, another shocker came in the form of a Special Court verdict in the high treason trial of Pervez Musharraf—former Chief of Army Staff and former President of Pakistan. The three member bench of the special court found Pervez Musharraf guilty on several counts which included inter alia abrogation of the Constitution, declaration of the state of emergency, and detention of Supreme Court judges. It is also important to note that the present case was exclusively about developments that took place in 2007 and not about the original coup of October 12, 1999. The court through its 2 to 1 majority judgement convicted former COAS and former President on charges of ‘High Treason’ defined under article 6 of the Constitution, and on December 17, 2019 handed him the death sentence. High Treason is clearly defined in Article 6 (1) and Article 6 (2) of the Pakistani Constitution. Article 6 (1) says that:
Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of High Treason.
Article 6 (2) considers other people guilty of ‘High Treason’ who aid and abet the process. It states that “Any person aiding or abetting or collaborating the acts mentioned in clause (1) shall likewise be guilty of High Treason.” The court, in its 167 page judgement referred to various provisions of the Constitution to first establish its jurisdiction and process adopted for trial in this high profile case. It then went on to convict the former army chief and former President. The conviction of a former COAS for high treason is unprecedented and remarkable. It is for the first time that a retired army chief and former President of Pakistan has been held accountable for unconstitutional acts during his stint in power.
The Trial and the Verdict
From 2005, with Iftikhar Muhammad Chaudhary becoming the Chief Justice of Pakistan, there were numerous points of friction between him and the then military-led government. Matters came to a head with his dramatic suspension as Chief Justice in March 2007. Following an intense agitation, the Supreme Court reinstated Justice Chaudhary in June 2007. Buoyed by the resistance of the judiciary and lawyers, Justice Chaudhary admitted a petition challenging Musharraf’s eligibility to contest another Presidential election. While the case was pending in the apex court, Musharraf proclaimed a state of emergency on November 3, 2007, abrogated the constitution, and asked judges of higher judiciary to take a fresh oath under a Provisional Constitutional Order (PCO). At least 15 judges of the Supreme Court and 56 judges of provincial High Courts, who refused to take fresh oath, were sacked. Chief Justice Iftikhar Muhammad Chaudhary and some other judges were also placed under house arrest. The rest, as they say, is history with a judiciary and lawyer led popular movement that resulted in a political change leading to a popularly elected government ending a decade of military and its proxies led rule.
It was for these offences that in March 2013, Iftikhar Muhammad Chaudhary leading a three-member Supreme Court bench agreed to hear a petition filed by Maulvi Iqbal Haider to try General Musharraf for ‘High Treason.’ The petition was disposed off following an undertaking by the Nawaz Sharif government that the matter would be investigated and sent for trial. After investigation and legal consultations, the government on December 13, 2013 filed the complaint in the special court headed by Justice Waqar Ahmed Seth of the Peshawar High Court. The other two members were Justice Nazar Akbar of the Sindh High Court, and Justice Shahid Karim of the Lahore High Court.
The military never considered this a case against an individual and associated it with the honour of military as an institution and worked behind the scene to obstruct the trial of its former chief. General Raheel Sharif, the then COAS (2013-2016), was instrumental in this too. His role was acknowledged by none other than Musharraf himself. In an interview to Duniya News on December 19, 2016, Musharraf categorically stated that “Well he did help me and I am absolutely clear and grateful. I have been his boss and I have been the army chief before him...he helped out, because the cases are politicised.” He further added that General Sharif could manage this by “influencing the courts.” In his own words “Once he got the government to relieve the pressure that they were exerting, the courts gave their judgement and allowed me to go abroad for treatment.” Due to a number of reasons including litigation at appellate forums, the High Treason trial lingered on.
As the case was still pending, Musharraf left the country in March 2016 for medical treatment and has not returned. The Court gave Musharraf multiple opportunities to appear before it in person and cooperate in the trial. His absence however did not stop the trail, as Section 9 of the high treason (punishment) 1973 empowered the court to go ahead. In addition, the Supreme Court on April 1, 2019 directed the special court to continue trial even in absence of the accused. As the trail was drawing to a close, the federal government abruptly dismissed the prosecution team on October 24, 2019 without citing any reason but possibly as a tactic to delay matters. The court expressed its displeasure but the trial continued, as by then the prosecution team had presented all evidences.
With the possibility of an adverse verdict looming, the government approached the Islamabad High Court requesting that “the special court be restrained from passing final judgement in the trial.” The Islamabad High Court, on November 27, stopped the Special Court from passing order but directed the government to notify a new prosecution team by December 5, 2019. The new prosecution team first appeared before the Special Court on December 5 and again on December 17. The arguments were concluded on the same day after which the court gave its verdict. The judgement itself clarifies many questions including the issue of fair trial. In Para 64, it is stated that:
We are of the considered view that the accused in this High Treason case has been afforded more than his due share of fair trial. The protected trial of a constitutional and not any ordinary offence that began six years ago in 2013, has yet to see its end in 2019. The accused, who has been given every opportunity to defend himself, has by his conduct in the proceedings only evinced his utter contempt for the law and legal institutions in this country. The facts of this case are well documented. The documents clearly demonstrate the guilt on the part of accused. It proves beyond a shadow of reasonable doubt all the charges of High Treason levelled against accused by the State.
In Para 65, the court declared General Pervez Musharraf guilty of High Treason and decided the quantum of punishment by stating that “As a necessary corollary to what has been observed we find the accused guilty as per charge. The convict be therefore hanged by his neck till he dies on each count as per charge.”
Reactions within Pakistan
Responding to the verdict, Pervez Musharraf, from his hospital bed in Dubai, issued a video statement terming the case as “absolutely baseless.” He further added that “As far as this [treason] case is concerned, this is absolutely baseless. I have served my country for ten years. I have fought for my country. This is the case in which I have not been heard and I have been victimised.” The Daily Times editorial described the verdict as “Pakistan’s journey towards an era without martial law,” The Dawn editorial termed it “a seismic shift in Pakistan’s history.” Most of the opposition parties welcomed the judgment. Chairman of the Pakistan People’s Party Bilawal Bhutto Zardari termed the judgement “a historic decision” and said that “This is the first step of Pakistan’s journey towards democracy.” He further said that the decision sent a message that no military dictator could take an unconstitutional step in future. The Inter Services Public Relations (ISPR) in a press release on December 17 exhibited strong displeasure over the judgement. Soon after the pronouncement of the judgement, a statement was issued by the Army Headquarters:
The decision given by special court about General Pervez Musharraf, Retired has been received with lot of pain and anguish by rank and file of Pakistan Armed Forces. An ex-Army Chief, Chairman Joint Chief of Staff Committee and President of Pakistan, who has served the country for over 40 years, fought wars for the defense of the country can surely never be a traitor. The due legal process seems to have been ignored including constitution of special court, denial of fundamental right of self-defence, undertaking individual specific proceedings and concluding the case in haste. Armed Forces of Pakistan expect that justice will be dispensed in line with Constitution of Islamic Republic of Pakistan.
The PTI government was also quick to respond. It termed the trial “unfair” and made it clear that it will defend former army chief in an appeal to be filed on his behalf. Attorney General Anwar Mansoor along with Prime Minister’s Special Assistant on Information Dr Firdous Ashiq Awan addressed a joint press conference during which he stated that “I will defend the law in the case but not any individual....in this case the right of fair trial guaranteed under the Constitution was not ensured. A trial should not just be fair but also seen to be fair.” The Pakistan Bar Council (PBC) came down hard on both Pakistan Army and the PTI government for the insulting criticism of the special court verdict. A strongly worded statement issued on December 19 inter alia said that:
We are of the firm opinion that the statement of DG, ISPR is clear cut violation of the legal and constitutional provisions and thus amounts to contempt of the Court. If there are some flaws in the judgement of Musharraf’s case, in the opinion of DG, ISPR, then the law has provided, procedure and proper course for agitating such flaws, if any, before the higher judicial forums by way of Appeal, Revision, or Constitutional Petition but the manner and the way, in which, the Judgement of the Special Court has been criticized by an official of the Army clearly gives an impression that all the institutions in Pakistan are subservient to the Armed Forces, to follow its dictation and there is no respect for any other forum including the judiciary. The legal community is also of the view that the attitude adopted by the Federal Government, its Ministers, Law Officers and specially the Attorney-General for Pakistan, is also proves that the Party in power has been installed by the Army and its institution is on the driving seat and that’s why they are also criticizing the Judgement in the same tune and tenor.
This variety of opinions over the issue shows the deep division on the role of the military in Pakistan’s polity. The government and the army appear to be on the one end of the spectrum; whereas the opposition and a majority of legal fraternity along with sections of Pakistan’s civil society seems to be at the other. These divisions are quite apparent on various social media platforms in Pakistan.
Controversy over Para 66 of the Verdict
The detailed verdict of the Special Court, made public on December 19, 2019, became controversial over Para 66 of the judgement which stated that:
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.
To many this was also something unprecedented in contemporary times with a high level Court resorting to medieval terms of punishment. The Dawn in its editorial on December 20, 2019 termed it nothing short of a judicial bombshell indicating a troubling descent into medievalism. The anger within the army was palpable. The PTI government decided to go for a review of the verdict and also indicated that it will file a reference against Justice Waqar Ahmed Seth in the Supreme Judicial Council (SJC) for penning this bizarre verdict. The judgement was not only termed as “unlawful” and “inhuman”, but also “unconstitutional.” The Pakistan Army, as usual, also tried to link the judgement to “enemy design.” DG ISPR, Major General Asif Ghafoor stated that the verdict was “against humanity, religion, culture and our values.” He went on to add that the conspiracies of the “anti-state elements” both “internal and external” would be foiled.
What many missed or deliberately ignored was the following Para 67 which offers a clarification about the controversy in preceding Para. Para 67 states that:
Indeed, this portion of the judgement and execution of the sentence is nowhere defined but since it is first impression case and the sentence of death is announced in his absence after declaring the convict as proclaimed offender therefore the sentence is supposed to be executed and in case of his death a question would arise as to the mode of executing the sentence, to this extent para 65 prescribes the mode of execution.
Those protesting against the controversial Para 66 also ignore the fact that it is a minority opinion of one judge and in no way an operational part of the verdict, and thus cannot be enforced. It would appear—and it does to many—that the controversy was a deliberate attempt on part of both the Pakistan Army and PTI government to manufacture outrage within the society so that the actual import of the overall judgment is eroded. Babar Sattar believes that “one part of a judge’s opinion on sentencing doesn’t undo his reasoning for returning a guilty verdict. Knowing full well that Para 66 is inoperative, using it as a tool to beat up the judge and the judiciary smacks of mala fide intent.”
Importance of the Judgement
Historically, Pakistan’s judiciary has been known to be biased in favour of the most powerful institution of the country—the Army. It has a proven track record of justifying military takeovers in the name of “the Doctrine of Necessity.” From Ayub Khan to Pervez Musharraf, men in uniform were not questioned by the higher echelons of the judiciary for trashing the constitution and overthrowing democratically elected governments. In contrast, civilian politicians are presumably often subjected to the tough scrutiny of the law by the same judiciary. Most prominently, in 2018, Pakistan Muslim League-Nawaz’s (PML-N) Nawaz Sharif, the then Prime Minister, was disqualified from holding any public office throughout his life.
It is in this context that the recent judgement is to be seen. Various objectives ranging from “remarkable,” “groundbreaking,” “unprecedented” to the “travesty of justice” has been used to describe the verdict depending on which side of the fence is convenient. However, there appears to be some agreement over the fact that the decision will have a far reaching impact, especially on civil-military relations and existing institutional imbalances in Pakistan. Fahd Hussain, the resident editor of The Dawn, an English daily, lists four reasons that makes the judgement groundbreaking, firstly, it establishes a strong legal deterrence against military coups in future, thereby strengthening constitutional democracy; secondly, it builds the common man’s confidence in the higher judiciary; thirdly, it creates some sort of institutional equilibrium between various pillars of the state; and finally, it at least symbolically reasserts the concept of civilian supremacy in Pakistan.
The Special Court’s verdict in High Treason trial case is against an individual—Pervez Musharraf—who happens to be in a self-imposed exile in Dubai with no intention to return Pakistan to challenge the verdict. The manner in which the government and law enforcement agencies have reacted, it appears that the executive branch of the Pakistani state does not want to bring the fugitive back and implement the verdict. This makes the judgement symbolic in nature. However, the value of the verdict lies in the fact that never before in the history of Pakistan has a retired army chief faced such a situation. Despite the controversy over Para 66 acquiring a larger than life role, the verdict in the High Treason trial remains significant. Given the history of Pakistan and the powerful position of the army, it is difficult to argue that the judgement would deter military interventions in future. However, the manner in which the judiciary is asserting itself, it would not be that easy either.
*Dr. Ashish Shukla, Research Fellow, Indian Council of World Affairs.
Disclaimer: Views expressed are personal.
 In 2010, Maulvi Iqbal Haider filed a petition in Supreme Court with a request to try Gen. Pervez Musharraf for the offence of high treason. The petition was kept pending in the Supreme Court for over two and a half years before being taken up in 2013 by a three-member bench. The bench took an undertaking from the Nawaz Sharif government that the matter would be investigated and sent for trial before a Special Court. Thus, the Special Court was constituted and Nawaz Sharif government in December 2013 lodged an official complaint before the court. For details, see The Special Court (2019), Judgement in Complaint No. 1 of 2013, December 17, 2019, Islamabad, pp. 6-7.
 Government of Pakistan (2012), The Constitution of the Islamic Republic of Pakistan, Islamabad: National Assembly of Pakistan, p. 4.
 The Special Court (2019), Judgement in Complaint No. 1 of 2013, December 17, 2019, Islamabad, pp. 7-14.
 The Express Tribune (2013), “Supreme Court to hear petition against Musharraf on Thursday,” March 27, https://tribune.com.pk/story/527221/supreme-court-to-hearing-petition-against-musharraf-on-thursday/
 The Special Court (2019), Judgement in Complaint No. 1 of 2013, December 17, 2019, Islamabad, pp. 65-66.
 Ibid, p.66
 Sarfraz, Mehmal (2019), “Pervez Musharraf sentenced to death for treason,” The Hindu, December 17, https://www.thehindu.com/news/international/pervez-musharraf-sentenced-to-death-by-pakistan-court-for-high-treason/article30327665.ece
 Daily Times (2019), “Troubles for the general, December 19, https://dailytimes.com.pk/522597/troubles-for-the-general-daily-times/
 The Dawn (2019), “Musharraf verdict,” December 19, https://www.dawn.com/news/1523149/musharraf-verdict
 The News (2019), “Musharraf’s death sentence ‘a historic decision’: Bilawal,” December 17, https://www.thenews.com.pk/latest/584779-musharrafs-death-sentence-a-historic-decision
 Geo TV (2019), “Bilawal Bhutto calls Musharraf’s death sentence ‘a historic decision,’” December 17, https://www.geo.tv/latest/262438-bilawal-bhutto-calls-musharrafs-death-sentence-a-historic-decision
 ISPR (2019), “The decision given by special court about General Pervez Musharraf, Retired has been received with lot of pain and anguish by rank and file of Pakistan Armed Forces,” Press Release, No. PR-206/2019-ISPR, December 17.
 The Dawn (2019), “Govt to save ex-ruler in court on appeal: AG,” December 18, https://www.dawn.com/news/1522863/govt-to-save-ex-ruler-in-court-on-appeal-ag
 The Special Court (2019), Judgement in Complaint No. 1 of 2013, December 17, 2019, Islamabad, p. 66.
 The Dawn (2019), “Descent into medievalism,” December 20, https://www.dawn.com/news/1523322/descent-into-medievalism
 The Special Court (2019), Judgement in Complaint No. 1 of 2013, December 17, 2019, Islamabad, pp. 66-67.
 Sattar, Babar (2019), “Rule of law or force?,” The News, December 21, https://www.thenews.com.pk/print/586241-rule-of-law-or-force
 The Dawn (2019), “‘Groundbreaking in many ways’: Reactions pour in on momentous verdict in Musharraf treason case,” December 17, https://www.dawn.com/news/1522780/groundbreaking-in-many-ways-reactions-pour-in-on-momentous-verdict-in-musharraf-treason-case, Accessed on?