NationalVOLUME 15 ISSUE # 10

Tensions among state institutions

After a special court’s verdict in former military ruler General Musharraf’s case of subversion of the country’s Constitution, the resultant clash of state institutions does not augur well for the country and it has taught us a number of lessons.

The decision by the special court constituted to carry out the trial of former dictator, General Pervez Musharraf, who had usurped state power on October 12, 1999, by deposing the then elected Prime Minister, Mian Nawaz Sharif, in the case filed against this action of the general, brought the country’s superior judiciary and the military face to face. The war of words between the two state institutions started and expressed through the media. The special court gave a decision against Pervez Musharraf and found him guilty of subverting the Constitution and, therefore, having committed high treason. Consequently, the court awarded him the capital punishment. The decision was widely hailed and criticised. However, the military high command started taking exception to it once the detailed verdict was announced.

According to the detailed verdict, the court headed by Justice Waqar Seth, Chief Justice of the Peshawar High Court (PHC), Musharraf committed high treason and, therefore, he shall be awarded the death punishment. However, the most critical part of the detailed verdict, due to which a lot of hue and cry was raised, is that if Musharraf died before he is awarded punishment, his dead body shall be hanged for three days in a central roundabout of Islamabad. The learned judge, although has been criticized for making an “inhuman” judgment to hang the dead body of Musharraf for three days in a roundabout, yet he has given certain solid legal justifications for his decision from Muslim judicial history. Here, it is important to note that every judge is completely respectable, whatever their decision may be. Here, one must not lose sight of the fact that if the decision was vituperated by some people, it was equally hailed by many others. So, without going into the issue that how many people support and others decry the judgment regarding Musharraf, the decision of a judge is binding and only constitutional and legal ways could be adopted to appeal against it or set it aside. Therefore, the verbal attack on Justice Waqar is totally unjustified and is tantamount to disrespecting the entire judiciary of Pakistan. It should not have happened.

The military has every reason to defend Gen. Musharraf for being the former head of the institution. However, it must be kept in mind that as a head of the military Musharraf must be respected but whatever unconstitutional steps he committed he must also be held responsible for his wrongdoings. Here, history must be recalled a bit as Gen. Musharraf usurped power in 1999, when he was dismissed by Premier Nawaz Sharif. Dismissing an Army Chief by the country’s chief executive should have been a straightforward administrative issue. However, the manner in which Sharif had dismissed Gen. Musharraf, when he was on an official visit to Sri Lanka and denying him to land back in the country, was bizarre and equally illegal. This is despite the fact that an elected prime minister has every right to dismiss a sitting army chief. But Sharif should have asked Gen. Musharraf to resign respectably face to face after telling him the charges against him or even conveying his displeasure over his certain actions done without the approval of the prime minister. As Sharif was fearful of a reaction from Gen. Musharraf, he deemed it appropriate to sack the military chief when he was out of the country. What this situation resulted was the subverting of the Constitution by Gen. Musharraf. However, on its part the general could have done wonders by holding new elections within 90 days of the usurpation of power. Although still unconstitutional, it could have laid the foundation of saving his skin in case of a future legal process. Instead, General Musharraf wished to rule the country himself and, therefore, he came up with a reform and rehabilitation agenda to justify his clinging to political power.

Here, it is important to note that if General Musharraf had committed “treason,” then all others who, aided or abetted this act of Musharraf, should also have been brought to justice, including judges who took oaths under Gen. Musharraf’s self-declared Legal Framework Order.

The criticism, not of the decision but the person of PHC Chief Justice, Waqar Seth, is indeed regrettable. The reason for this is that Justice Seth is not merely a person but represents the revered institution of the judiciary. So, any criticism of him is tantamount to disrespecting the judiciary. This should not have happened. It is to be noted that Justice Waqar was made the head of the special court hearing the case of Gen. (R) Musharraf by the Chief Justice of Pakistan and, therefore, it is an institutional matter. If a country’s judiciary is disrespected, the entire political system and the state structure become questionable. Therefore, any criticism in whatever means of the judiciary must be avoided.

The jumping into the matter by the federal government of the Pakistan Tehreek-e-Insaf (PTI), led by Prime Minister Imran Khan, would add fuel to the fire. The government of PM Khan unwisely decided to file a reference against Justice Seth in the Supreme Judicial Council, which is a constitutional body to look into the matters of misconduct and abuse of power by the judges of superior judiciary. The federal government of PM Khan has picked up an unnecessary quarrel with the country’s judiciary. This should have been avoided by any means at a time when the country’s is facing multiple internal and external threats. PM Khan should have acted like a statesman and would have tried to resolve the issue between the judiciary and the military.

The media role in the issue of Gen. Musharraf’s conviction generally has been irresponsible. The media should have ascertained the sensitivity of the situation and acted very cautiously. However, there was extensive coverage of the issue which further vitiated the environment. Whatever is happening and unfolding is not good at all for the existing state dispensation. However, the situation is also important for the evolution of democracy. The history of various states is testimony to the fact that a clash among institutions and coming to the fore of constitutional issues in the public sphere results in strengthening of democracy, but not the political system. However, this could only happen if the situation is handled very carefully and respectfully.