A string of judgments by Pakistani courts this year now poses a serious threat to the domination by the top army generals over the country’s fate for nearly six decades.
This week, Pakistani courts sentenced one former military dictator to death for subverting the constitution and jeopardized a new term in office for the current army chief. In October, a provincial High Court scrapped a controversial law that granted sweeping powers to the military. In a landmark decision in February, the Supreme Court implicated and reprimanded the military against involvement in and manipulating politics and the media.
While some of the decisions are under review by higher courts and others are likely to be appealed, they mount an unprecedented challenge to the military’s monopoly over power. Four army generals ruled Pakistan for nearly 33 years after the first military dictator, General Ayub Khan, assumed power following a coup in October 1958. Democratic interregnums have mostly been marked by anemic civilian administrations reeling from military domination of security and foreign and economic policies. No prime minister has completed his term in office, and many have been imprisoned, exiled, hanged, or assassinated.
On December 17, the military did not hold back its punches after a special court in Islamabad handed a death sentence to Musharraf on treason charges. With a 2-1 verdict, the court found him guilty of suspending the country's constitution in 2007 when he imposed an emergency.
Following a meeting of the army’s top brass after the judgment, a military statement said the court’s decision "has been received with lot of pain and anguish by rank and file of Pakistan Armed Forces." The statement questioned the process. “The due legal process seems to have been ignored including the constitution of the special court, denial of fundamental right of self defense, undertaking individual specific proceedings and concluding the case in haste.”
The statement appears to be partly targeted at the military’s officer corps’ morale. It said that Musharraf “can surely be never a traitor” because he "has served the country for over 40 years, fought wars for the defense of the country” and has served as the president, chief of army staff, and the Chairman Joint Chief of Staff Committee.
But in a detailed verdict about a new tenure in office for the incumbent army chief General Qamar Javed Bajwa, Supreme Court Chief Justice Asif Saeed Khosa appeared to question unbridled powers for the army chief.
“In our peculiar historical context Chief of the Army Staff holds a powerful position in ways more than one,” he noted in the judgment issued on December 16. “Unbridled power position, like unstructured discretion, is dangerous.”
In a revealing indication of how Khosa and other senior judges want to see Pakistani generals operate, he said, “Howsoever high you may be; the law is above you,” quoting a 17th-century Chief Justice of England’s advice to King James I.
The judgment has given the Pakistani Parliament six months to frame a law to regulate the terms and conditions of the office of Chief of the Army Staff. “[This future law] may go a long way in rectifying multiple historical wrongs and in asserting sovereign authority of the chosen representatives of the people besides making exercise of judicial power of the Courts all pervasive,” Khosa wrote.
The Supreme Court is hearing another important case that could possibly force the military to end indefinite detentions and forced disappearances in the country’s northwestern province of Khyber Pakhtunkhwa. In October, the apex court suspended an order by the Peshawar High Court, the top court in Khyber Pakhtunkhwa, that scrapped the Actions in Aid of Civil Power Ordinance. For many years, human rights campaigners had advocated getting rid of the tough law that granted sweeping powers to the security forces in parts of the province reeling from years of Taliban atrocities and military operations.
In a major legal blow to the military’s involvement in Pakistani politics, a landmark Supreme Court ruling in February directed the Pakistani government, intelligence agencies, and the military’s public relations office to operate within their legal mandate.
“The constitution emphatically prohibits members of the armed forces from engaging in any kind of political activity, which includes supporting a political party, faction, or individual,” noted the February 6 ruling by Justice Qazi Faez Isa, widely considered as an upright arbitrator of the law.
His ruling was the result of a suo moto case regarding a sit-in protest in late 2017, when Tehreek-e Labaik Pakistan (TLP), an obscure Islamist group, paralyzed the capital, Islamabad and the adjoining city of Rawalpindi for weeks. “The government of Pakistan through the Defense Ministry and respective chiefs of the army, the navy, and the air force are directed to initiate action against the personnel under their command who are found to have violated their oath,” the ruling said.
Isa is now facing a misconduct trial in the Supreme Judicial Council for not declaring foreign properties. The civilian administration moved the case in June. But lawyers in Pakistan have protested the case and declared it a vendetta against Isa for delivering a ruling that questioned the military.
In a sign of things to come, Bajwa visited the Special Services Group (SSG), an army unit that Musharraf had served in during most of his military career, on December 18. “We have brought stability by failing all inimical forces operating against Pakistan,” he told the commando unit. “We shall never let it go away at any cost.”
The Khyber Pakhtunkhwa Bar Council, however, announced a one-day strike on December 19 against the military’s statement criticizing the Musharraf verdict.
“[The military statement] clearly gives the impression that in Pakistan all the institutions are subservient to follow the dictation of the armed forces and its related institutions and there is no respect for any other forum including the judiciary, the parliament and other state institutions,” a December 18 statement by the lawyer association said.