Amjad Shuaib knew Pervez Musharraf as a hotheaded Army officer and a reactionary Pakistani leader. Could he know know him as one executed for treason, given the country's new judiciary renaissance?
Pakistan's judiciary has never been an effective check on the power of the executive. Constitutional provisions help the government appoint judges who are loyalists, rather than objective thinkers. The beneficiaries of this long-standing practice are customarily Pakistan's military dictators. So it was with Pervez Musharraf -- the general who seized power from Nawaz Sharif's democratically elected government in 1999, was ousted last summer, and, incidentally, was a dear friend of mine when we served together in the Army from the early 1980s through 2000.
Now, since Musharraf's ouster and exile, it appears the tide has turned against judicial corruption. Six weeks ago, Pakistan's highest court ruled some of Musharraf's judiciary maneuvers illegal -- paving the way for a trial against the general himself. For the first time in decades, the country's judges seem capable of enforcing the Constitution. But does this promising development really mean that change has come to Pakistan? And what does it mean for Musharraf, who faces possible execution for what the courts think could be treason?
I knew Musharraf intimately from our early days in the Army. We belonged to the Artillery Corps and served together on a number of appointments. He was a brave field soldier, and an intelligent and thoroughly professional officer, though he could be a hothead and pick fights over petty matters. Still, he steadily ascended the Army ranks, serving in the 1965 Indo-Pak War, assuming the role of company commander in the Special Service Group during the 1971 confrontation, being promoted to major general in 1991, and ultimately becoming Army chief of staff in 1998. However, when I served as adjutant general of the Army, it became increasingly clear to me in my daily interactions with him that Musharraf was a reactionary, not a visionary. Indeed, he could be trigger-happy, taking steps on critical matters without taking their potential consequences into account.
Numerous incidents testify to that observation. Most importantly, Musharraf seized power in a bloodless military coup in October 1999 -- yet even his takeover of a country had a thrown-together quality to it. Although he had been plotting to dislodge Sharif for some time, he did not know what to say in his first address to the Pakistani people after he assumed office. One of his subordinates gave him a hastily drafted speech that omitted mention of many salient challenges confronting Pakistan.
Musharraf soon succumbed to the temptation to stay in power no matter what it might cost the country. He, like his predecessors, removed the Supreme Court's independent judges and appointed his own. They certified his legitimacy and allowed him to amend the constitution however he saw fit. Musharraf introduced an amendment, which came into force in December 2003, that allowed him to head both the government and the military. (The constitution had previously required separate heads of the Army and the state.) His handpicked parliament rubber-stamped the measure.
And so, he decided to run again, in uniform, in contravention of still-existing laws. Another presidential candidate submitted a case to the Supreme Court that challenged the general's eligibility for that reason. This time, however, Musharraf was concerned that he would not be able to count on the court's subservience on account of two high-profile cases. One involved the privatization of Pakistan Steel Mills (PSM), the country's largest industrial asset, for only one-third its actual value. The court opposed its sale to a Russian-Saudi-Pakistani consortium on the grounds that it had been conducted with "indecent haste." The other case involved some 250 "missing persons," Pakistanis who were alleged to have been detained by U.S. and Pakistani intelligence agencies in connection with the war on terrorism without any warrant or court order. Here, too, Musharraf was implicated.
Deciding that he could not rely on the court to validate his concurrent political and army roles, he suspended the Constitution and imposed emergency rule on Nov. 3, 2007. About one month earlier, he had enacted a troubling piece of legislation to consolidate his grip on power: the National Reconciliation Ordinance (NRO). It allowed any politician or bureaucrat who served between 1986 and Oct. 12, 1999 (when he came to power), to avoid facing trial for criminal activity in the name of "national reconciliation." In effect, it allowed powerful officials and their surrogates to maneuver their way out of pending court cases against them -- cases that involved the plundering of billions of dollars, or even murder. (However, the NRO included no provision to pardon an ordinary person facing charges of a minor nature, like petty theft.)
Lawyers immediately inveighed against its unconstitutionality. But because Musharraf had suspended the normal legal channels via emergency rule, the Supreme Court could not hear their challenges. Still, a panel of seven Supreme Court judges, headed by Chief Justice Iftikhar Chaudhry, ruled that his declaration of a state of emergency was unlawful. In response, the strongman dismissed some 60 judges -- including Chaudhry -- and had the military enforce emergency rule for 43 days. Unlawfully appointed judges, all Musharraf acolytes, dismissed the lawsuits against him and started paving the way for him to serve another term.
Finally, one case changed the standard course of judicial history in Pakistan. The Sindh High Court Bar Association petitioned against the unlawful firing of two judges. The case made its way to the Supreme Court, which, as noted earlier, had turned against Musharraf in early 2007 in light of the PSM fiasco. In a decision on July 31 of this year, it rendered a unanimous verdict against him, declaring that the state of emergency had been illegal and calling on parliament to validate or invalidate his emergency ordinances.
The ruling immediately had a number of real and symbolic effects. It purified the judiciary because the judges Musharraf had illegally appointed were sent packing. The Supreme Court also removed prejudiced judges later appointed by his successor, Asif Ali Zardari, the current president. It also gave a boost to civilian rule while dealing a serious blow to the military's power. Most significantly, it affirmed the judiciary's independence. The Supreme Court has made clear to tomorrow's potential dictators that they will not be able to depend on a judicial bailout should they engage in unconstitutional behavior.
The court's ruling also changed Islamabad. The lawyers' movement had set the stage for a judicial renaissance by compelling Musharraf to resign in late 2008. But in the recent ruling, the court did not settle at holding him to account; it also required parliament to validate or end the discriminatory and unethical NRO within 120 days. Thus, though Zardari was able to step into the post-Musharraf power vacuum, he will be held to account for his corruption if (more likely, when) the NRO is overturned.
And the judicial uprising could mean further trouble for Musharraf. Not only has he lost his position as the head of government, but under Article 6 of the Pakistani Constitution, he may be tried for treason -- and possibly executed. Indeed, all members of the government, armed forces, civil service, and police who facilitated Musharraf's defiance of the constitution could be tried and punished as well.
Today, Musharraf stands accused of destroying Pakistan's political, economic, and judicial institutions; of sacrificing Pakistan's sovereignty under U.S. pressure; and even of handing over many innocent Pakistani citizens to the United States to maintain his grip on power. The Pakistani media has created tremendous awareness among the people about these, and other, abuses. I have no doubt that, as they succeeded in restoring the judiciary's independence, the people of Pakistan will succeed in bringing Musharraf to justice.