x Abu Dhabi, UAE Thursday 20 July 2017

Judges, not generals, emerge as Pakistan's dominant actors

The trial of Pervez Musharraf may well define the role of the judiciary and the military in Pakistan's future.

Pakistan's prime minister, Nawaz Sharif, announced on June 23 that the former military dictator Pervez Musharraf would be put on trial for high treason for abrogating the constitution. Mr Musharraf, under house arrest since April at his farmhouse on the outskirts of Islamabad, faces a possible death penalty or life imprisonment if convicted.

It is unprecedented that a former military dictator is being tried in a civilian court for an act of treason in a country where no military coup-maker has ever been tried and held accountable for subverting the constitution.

For more than six decades, the powerful military has overthrown elected governments and sacked judges for defying their illegal authority - an elected prime minister, Zulfiqar Ali Bhutto, was hanged in 1979 under the military regime of General Zia ul Haq.

Mr Musharraf's trial will certainly embarrass the top military brass who will be loath to see their former army chief tried, humiliated and punished by judges.

Reports about a planned safe exit for the former dictator bear no weight after the newly-elected government has initiated his trial, throwing the ball in the judges' court. A three-member bench, headed by Justice Jawwad S Khawaja of the Supreme Court is hearing the case.

Both the "bench" and the "bar" are on the same page in terms of trying him under Article 6 of Pakistan's constitution, as both have been the victims of the Musharraf regime. During Mr Musharaf's dictatorial reign, lawyers launched a countrywide campaign for reinstating the incumbent chief justice of the Supreme Court, Iftikhar Mohammad Chaudhry, after he was sacked by the Musharraf government in March 2007.

The lawyers' campaign was crushed by the state machinery - many lawyers were put in prison. Mr Musharraf put over 60 judges, including Chief Justice Chaudhry, under house arrest in November 2007 when he proclaimed a state of emergency. Mr Musharraf's trial is also likely to open a Pandora's Box by unveiling his abettors, aiders and collaborators in the military establishment, civil bureaucracy, judiciary and parliament.

Today, judges in Pakistan seem to be more powerful than military generals, who are apparently no more the "movers and shakers" in domestic politics. Under Chief Justice Iftikhar Chaudhry, over the past three years, the court has become powerful enough to challenge a sitting prime minister. Last year, the court disqualified and removed former prime minister, Yousuf Raza Gilani, by convicting him for contempt of court.

There is even talk of a judicial coup, instead of a military coup. Speaking in Lahore last year, Chief Justice Chaudhry reportedly said: "Gone are the days when the stability and security of the country was defined in terms of the number of missiles and tanks as a manifestation of hard power available at the disposal of the state".

The powerful judiciary played an effective role in checking the culture of kickbacks and corruption that reached epidemic levels under the previous government. Former prime minister Raja Pervez Ashraf is still on trial over a power plant scam. Similarly, the court ordered a freeze on the assets of Ali Musa Gilani, son of former prime minister Yousaf Gilani, in the ephedrine quota case - a massive drug scam.

Courts are now virtually ruling the country. The Supreme Court recently struck down a one-percent increase in the General Sales Tax (GST) proposed in the fiscal budget presented by the new government this month. The court's decision was welcomed by a public already reeling from inflation. The court also disqualified heavyweight politicians from contesting polls and arrested others for holding fake education degrees in the run up to the general elections on May 11. The nomination papers of prominent figures in politics had been rejected by the judiciary-backed returning officers.

The judicial activism, however, has invited criticism about the conduct of the courts. Are courts moving toward judicial tyranny by intervening in areas beyond their purview? Certainly, the undue interference in government affairs by the judiciary or overstepping its juridical powers is neither in the interests of democracy nor does it serve the interests of the institution itself. Is the country really witnessing a power shift from the military to the judiciary? The court, through Mr Musharraf's trial, will set a precedent that a military dictator who dislodged a democratic system by abrogating the constitution can be tried for high treason and duly punished. Justice Jawwad S Khawaja recently said the court sought to write history by initiating a trial against a former military ruler.

The trial may eventually bring the military and judiciary on a collision course. The military already feels uneasy over the way its former army chief has been treated. The country may plunge into a political crisis as a result of tussle between the military and judiciary. It is worth noting that Pakistan's stock market tumbled on June 23 after Mr Sharif announced his intention to initiate a case, scaring investor sentiment about short-term political stability.

The timing chosen by the government to initiate Mr Musharraf's trial seems intriguing. The trial has triggered a debate in the media, diverting attention from key public issues such as crippling power outages, soaring commodity prices, unemployment and the government's new budget, which has been criticised for its inflationary effect.

It seems that the government is playing diversion tactics. But the trial might nonetheless define the role of the judiciary and the military in the country's future.

 

Syed Fazl-e-Haider (www.syedfazlehaider.com) is a development analyst in Pakistan. He is the author of many books, including The Economic Development of Balochistan