—Yasser Kureshi, Senior Teaching Fellow, SOAS University of London
On the 17th of December 2019, a special court in Pakistan found its former military dictator, General Musharraf (1999-2008), guilty of high treason for suspending the constitution in 2007.[1] In a country where the military has ruled with impunity for much of its history, this verdict was a dramatic development. In 2007, Musharraf’s regime retaliated to an increasingly assertive judiciary, by suspending the constitution and purging the judiciary. Musharraf’s actions backfired, galvanizing a pro-democracy movement that ultimately pushed the regime out of power in 2008. In 2009, a restored Supreme Court held that Musharraf’s actions were unconstitutional and ten years later, after protracted legal proceedings, a Special Court found Musharraf’s actions amounted to high treason, punishable by death.[2] One judge, in particularly gruesome terms, called for Musharraf’s body to be dragged and hanged for three days in a public square.[3] The military sees this judgment as an affront to the military, and declared the verdict a conspiracy by Pakistan’s enemies.[4] The battle-lines between the two institutions have been drawn, and the intensity of both the language of the judgment, and the response of the military, demonstrates how high the perceived stakes are for both institutions. Why does Musharraf’s case evoke such strong reactions from the judiciary and the military, and what impact will it have on democracy and constitutionalism in Pakistan?
Musharraf’s Trial and the Military:
The military ruled Pakistan for much of its history, and sees itself as the guardian of the state, overseeing and protecting its institutions and society.[5] Even during democratic periods, the military retained considerable authority, and resisted any civilian oversight. Therefore, a civilian court holding a former military chief accountable was an unacceptable precedent, and an affront to the military’s “dignity and institutional pride.”[6] When former Prime Minister Sharif’s government pursued Musharraf’s prosecution in 2014, this catalyzed the military’s efforts to weaken or remove his government. Thus, protecting Musharraf’s reputation and avoiding judicial accountability of military chiefs is critical to the military’s institutional identity.
Musharraf’s Trial and the Judiciary:
After decades of deference to military supremacy, the judiciary has, in recent years, charted a more independent course, seeking to expand its authority and relevance. In my research, I found this shift was a product of i) the institutional separation of the judiciary from the executive, and ii) the growing political activism of the legal community from which judges were recruited, and with which they sought to build their reputations. Bar associations agitated for the judiciary to expand its role and confront civilian and military state institutions. During Musharraf’s rule, when judges recruited from the bar challenged the regime, the lawyers backed the courts. And when Musharraf responded by suspending the constitution and clamping down on the judiciary, lawyers mobilized to support the defiant judges.[7] Since then the judiciary has competed with civilian and military institutions as it pursued an agenda of judicial supremacy. For the judiciary and the legal community more broadly, the events of 2007 are etched into its institutional identity as the moment a new, more assertive judiciary established itself.[8] Going back on this verdict would be challenging for any judge, and would ruin their standing with the legal community. As one lawyer I spoke to said, “no judge would want to be remembered in history as the judge who let Musharraf go.”
Musharraf’s Trial and Pakistan’s Regime Structure:
Pakistan is currently a hybrid regime, constructed around the military, judiciary and ruling party’s mutually-empowering ostensible commitment to tackle political corruption. The judiciary expanded its role in regulating and reconfiguring Pakistan’s electoral politics, by disqualifying political leaders from electoral politics for corruption.[9] The military used accusations of corruption to weaken and intimidate political parties that challenged its authority or deviated from its policy goals.[10] The current ruling party, the Pakistan Tehreek-e-Insaaf (PTI), elected in 2018, built its politics around an agenda of challenging elite political corruption, and benefited from the delegitimization and disqualification of other parties for corruption. The result is a tutelary democracy, where political parties that challenge the military’s primacy have been marginalized through judicial disqualification or military intimidation, and a pliant political party rules, facing limited opposition.[11] However, while this arrangement currently faces few challenges from the outside, it was built on the flawed assumption that the institutional interests of the two unelected institutions curating Pakistan’s current political space would not clash.
In recent months, institutional tensions have grown as the military, and allied ruling party, attempted to purge less amenable individual judges, and the judiciary scrapped sweeping military powers to manage internal security, and also sought to reform the opaque process of appointing army chiefs.[12] Now, the conviction of Musharraf is just as important to the judiciary’s institutional identity, as it is an unacceptable assertion of judicial power for the military. This inter-institutional clash is likely to play out in Pakistan’s Supreme Court, where the military and allied ruling party will pressure the Court to reverse the conviction on appeal, and fellow judges and lawyers will pressure it to uphold the conviction. Pakistan’s hybrid regime is held together as long as both unelected institutions expand their powers at the expense of political parties, but once their ambitions clash, regime stability is undermined.
Musharraf’s Trial and Pakistan’s Democratic Future
If the judiciary caves to military pressure, it would undermine its own independence, and any semblance of constitutional supremacy in Pakistan. If both institutions dig into a protracted confrontation, this could cause the current political arrangement to unravel. This fragmentation may open space for other parties to push for restoring democratic contestation to the political system, or it may lead the military and judiciary to use increasingly unconventional tactics and resources to challenge each other, pushing them further out of their constitutionally designated roles. There is much to observe in Pakistan in the coming days. The Musharraf trial will test the hybrid regime’s ruling elites, who are divided by the institutional interests that they prioritize over regime stability. The consequences will shape Pakistan’s political future.
Suggested citation: Yasser Kureshi, To Convict a Dictator: Judges
Versus Generals in Pakistan, Int’l J. Const. L. Blog, Dec. 28, 2019, at:
http://www.iconnectblog.com/2019/12/to-convict-a-dictator-judges-versus-generals-in-pakistan/
[1] Rana Bilal, Naveed Siddiqui and Haseeb Bhatti, “Former military dictator Musharraf handed death sentence in high treason case,” Dawn, December 17th 2019, https://www.dawn.com/news/1522774/former-military-dictator-musharraf-handed-death-sentence-in-high-treason-case.
[2] General Musharraf is unlikely to be personally affected since he is currently in self-exile in Dubai.
[3] “Read: Full text of special court’s verdict in Musharraf treason case,” Dawn, December 19th 2019, https://www.dawn.com/news/1523186/read-full-text-of-special-courts-verdict-in-musharraf-treason-case.
[4] “ISPR blasts detailed verdict in Musharraf treason case, deems it ‘against humanity, religion’,” Dawn December 19th 2019, https://www.dawn.com/news/1523189. The allied ruling party is also considering calling for an inquiry into the mental fitness of the leading judge on the Special Court. See “Justice Waqar Seth ‘mentally unfit to be a judge,’ government says,” Pakistan Today, December 20th 2019, https://www.pakistantoday.com.pk/2019/12/19/govt-to-file-reference-against-justice-waqar-ahmed-seth-in-sjc/.
[5] Aqil Shah, “Constraining Consolidation: Military, Politics and Democracy in Pakistan (2007-2013),” Democratization 21, no. 6 (2014): 1007–33.
[6] “Pakistan military will ‘preserve dignity’ despite ex-chief’s trial,” Reuters, April 7th 2014. https://uk.reuters.com/article/uk-pakistan-military/pakistan-military-will-preserve-dignity-despite-ex-chiefs-trial-idUKBREA360QH20140407
[7] Shoaib Ghias, “Miscarriage of Chief Justice: Judicial Power and the Legal Complex in Pakistan Under Musharraf,” Law and Social Inquiry 25, no. 4 (2010): 985–1022.
[8] See Sindh High Court Bar Association v Federation of Pakistan, PLD 2009 SC 879.
[9] This included disqualifying Nawaz Sharif, the former Prime Minister who fell out with the military, from holding the office of Prime Minister.
[10] Maria Abi-Habib and Salman Masood, “Military’s Influence Casts a Shadow over Pakistan’s Elections,” New York Times, July 21st, 2018. https://www.nytimes.com/2018/07/21/world/asia/pakistan-election-military.html?auth=login-email&login=email
[11] It is worth noting that many members of the current ruling party’s government were formerly members of Musharraf’s own government.
[12] Hasnaat Malik, “Justice Isa’s Faizabad sit-in verdict prompted reference: counsel,” Express Tribune, October 14th 2019, https://tribune.com.pk/story/2079153/1-inconvenient-truth-faizabad-verdict-led-references-justice-isa/; Waseem Ahmad Shah, “PHC declares internment centres in KP unconstitutional,” Dawn, October 18th 2019, https://www.dawn.com/news/1511488; Haseeb Bhatti, Naveed Siddiqui, “SC to hold cliffhanger hearing on extension of General Bajwa’s tenure,” Dawn, November 27th 2019, https://www.dawn.com/news/1519144.
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