General in The Gaol: Musharraf’s Arrest and Its Implications

Sushant Sareen, 

Senior Fellow, VIF

In what is being called a first in Pakistan’s history, a former military strongman, Gen Pervez Musharraf, has been formally arrested on charges of terrorism and illegal confinement of judges. Musharraf’s detractors see his arrest as a sign of the fundamental changes that have come in the political power structure in Pakistan. According to them, the power of the Pakistan Army has been seriously eroded with the restoration of democracy and the reinstatement of the judiciary, and this is reflected in the failure of the army to stand behind its former chief in his hour of trial and tribulation.

The cynics disagree. They are of the view that the army still remains the most powerful political player and beyond a point it will not allow its former chief to be humiliated by the judiciary because this will deal a body blow to the power of the military and the impunity and immunity enjoyed by the Generals. According to them, even the judges are aware of the limits of their power and will desist from crossing the red-lines as far as the army is concerned. The dramatic arrest of Gen Musharraf, the cynics are convinced, is therefore nothing but a farcical drama. After all sides in this drama (particularly the judiciary) have played their roles, that is to say, established their credentials and made their point, the curtain will fall on this so-called demonstration of civilian supremacy and rule of law. Musharraf, at the end of the day, will not be thrown into prison, forget about being taken to the gallows for committing treason. He may, however, have to suffer the indignity of appearing in court to face the various cases that have been filed against him.

Historically, no Pakistani military dictator has ever been imprisoned. Ayub Khan and Yahya Khan were put under house arrest but this was more out of political necessity than for their crimes against law and constitution. One other army chief, Tikka Khan, was also arrested for a short periods’ of time for participating in political agitation after Zulfikar Ali Bhutto was deposed. But Tikka Khan, better known as the Butcher of Balochistan and Bengal, never was made to answer for the crimes against humanity that he committed. A Naval Chief, Mansur-ul-Haq, was imprisoned on charges of corruption but was soon released after a plea bargain which involved returning a large part of his ill-gotten gains. Other than these cases, no other top serving or retired military official who remains embedded in the ‘establishment’ has been prosecuted for any act of commission or omission.

The important point is that only defeated or deposed military strongmen in Pakistan have had to face any sort of action, albeit of a fairly benign kind. Unlike civilians who have been thrown in prison, humiliated, even tortured, the military officials have been treated with kid gloves, enjoying incarceration in the comforts of their extremely well-appointed homes. Another important criterion for determining the kind of action taken against a general is whether he is part of the ruling establishment. Musharraf’s almost successor, Gen Ziauddin Butt did suffer imprisonment and loss of all privileges but that was because he was seen as a man who was siding with the political establishment against the military. Officers like Major Generals Akbar Khan and Zaheerul Islam Abbasi were imprisoned but that was because they rebelled against the military hierarchy. On the other hand, Generals Aslam Beg, Hamid Gul and Asad Durrani have had no action taken against them despite their public confessions that they subverted the political system.

The eternal wisdom of Shakespeare that “there is a tide in the affairs of men which, when taken at the flood, leads on to fortune; Omitted, all the voyage of their life is bound in shallows and in miseries” also comes into play in how dictators are treated in Pakistan. When things are going in their favour, everything they do is kosher and receives kudos; but when the tide turns, anything they do is a disaster and is denounced. Musharraf should have realised that his time as the master of all he surveyed was up. But his proneness for miscalculation coupled with his propensity for throwing caution to the winds has led him into a somewhat sticky situation. Clearly, apart from some of his foreign benefactors and guarantors (reportedly the Saudis) Musharraf was banking upon the army to ensure that he wasn’t going to be put through the mill of justice in Pakistan. To an extent, both the Saudis and the army delivered. The Saudis ensured the deafening silence of Nawaz Sharif who had till recently been clamouring for Musharraf’s prosecution. President Asif Zardari in any case wasn’t interested in taking any serious action against Musharraf. For its part the army made sure that Musharraf was provided all necessary security.

But what Musharraf didn’t budget for was that he had become both an embarrassment and an inconvenience for the military. While the army would not like to see its former chief humiliated or thrown in prison, it would also not go out on a limb for Musharraf and take on the judiciary, the political class and the public by overthrowing or even destabilising the entire system for his sake. In other words, the army wouldn’t want to see Musharraf mistreated but was also not going to lose any sleep if Musharraf was forced to fight his cases in courts. As the army saw it, Musharraf had been forewarned against returning to Pakistan because of the changed circumstances in the country which limited the ability of the army to protect its former chief from the rampaging courts. If despite this warning Musharraf returned, then he would have to bear the cross of his decision. Having barely regained its image that was badly sullied in the last years of Musharraf’s rule, the army was unlikely to once again let its image take a blow for Musharraf’s sake. What is more, the army is embroiled on too many fronts and would be loath to see another domestic front open only because of Musharraf. Most of all, the cases that would open against Musharraf would also open a can of worms involving serving military officials and the army in general, something that made the top brass extremely uncomfortable.

Compounding the problem for the military is the fact there is currently a sort of uneasy balance between the judiciary and the army which could be disturbed because of Musharraf. The judiciary has been asserting itself against all pillars of the Pakistani state and winning. But as opposed to its tearing into the civilian government and elected politicians, the judiciary has been a lot more circumspect when it comes to dealing with the army. In numerous cases where there is clear evidence against serving officials – for instance, in cases involving extra-judicial killings, illegal detentions, unlawful use of force etc. – the judiciary has been all fire and brimstone but has refrained from taking any meaningful action against the guilty officials. This unstable equilibrium could get disturbed if either the judiciary or the army take any precipitate action, either to fix Musharraf or protect him.

In a way, Musharraf has left the military, the judiciary and the politicians with difficult choices. If the army leaves its former chief in a limbo then it will be setting a dangerous precedent. After all if Musharraf can be prosecuted and punished for whatever illegal and extra-constitutional actions he did, then other generals too will be opening themselves to similar legal action in the future. This clearly is not quite acceptable. Already, the army feels that there has been a steady paring down of its power and influence. And while it still remains a player in the politics of the country, its role and influence is no longer what it was in the not so distant past. Increasingly, the army is able to only assert itself on strategic policy and direction and not so much on domestic politics. If this trend continues and is not reversed, the army will see a whittling down of its political role, something which the generals wouldn’t exactly be happy about. But reversing the trend is going to mean intervention at a level that the army might find difficult to handle.

The politicians are meanwhile chary of exploiting the situation in their favour. If anything, they are waiting to see the outcome of the tussle for supremacy between the army and the judiciary and therefore are quick to throw the ball either in the court of the army or the judiciary. No surprise then that cutting across the political divide, the political class, notwithstanding fiery statements against Musharraf, has not really tried to book Musharraf for treason and left it to the courts to take suo moto action in this matter. Despite the fact that only the government can institute a treason case, neither the erstwhile PPP-led coalition, nor the caretaker, and in all likelihood not even the next elected government is likely book Musharraf for treason and will be happy to take the lead from the judiciary.

With the ball in its court, it now remains to be seen how far the judiciary will go against Musharraf. For now, the judiciary has been operating on the time honoured but unchivalrous Pakistani principle of power: kick a man when he is down and out. The manner in which his bail was refused by the Islamabad High Court judge in a bailable offence case, orders for his arrest issued by the same judge who also slapped him with terrorism charges, is a classic hatchet job. Quite aside the fact that Musharraf didn’t help his case by his loud-mouthed brazenness and brashness (admitting in an interview to allowing drone attacks and defending his action against the judges is just one example), the vindictiveness of the judiciary was also on display. The judge Shaukat Aziz Siddiqui is a man with a very dubious past. He was in the vanguard of the lawyers who threw rose petals on the assassin of the former Punjab governor Salman Taseer. While hearing the case against Musharraf his bias was reflected when he said that even he had been detained after emergency was declared on November 3, 2007.

Forget about this judge, the entire superior judiciary is working overtime to fix anyone they don’t like – law be damned – and arrogating power to a point where it is literally becoming a supra-government. Every morning, it seems, the registrar of the Supreme Court scans the newspapers and prepares a brief for the chief justice on any issue which he thinks is of public interest and by evening suo moto notices are issued. From elections to electricity and from gas allocation to transfers and postings, the courts are calling the shots with the government behaving like a mute spectator to this travesty. This is fast becoming an untenable situation and something has got to give if there is to be even a modicum of administrative coherence. Perhaps, the cases against Musharraf might become the tipping point.

Out of all the cases against Musharraf, the only really serious case is the treason charge for imposing emergency on November 3, 2007. All other cases – Lal Masjid, Akbar Bugti assassination, Benazir Bhutto assassination, illegal confinement of judges etc. – are political cases in which it will be impossible to find any real evidence of wrong doing against Musharraf. For example, the Lal Masjid operation was a legitimate operation against terrorists holed up in the complex. Regardless of the sensitivities involved and the repercussions that followed, Akbar Bugti’s killing was also the result of action against a declared insurgent. In Benazir Bhutto’s case, the only thing against Musharraf is that he didn’t provide her adequate security and that he is supposed to have threatened her. And in the judges confinement case, none of the judges who were confined illegally are a complainant! This leaves the treason case. But if the judiciary goes down that path, then under the letter of the law, a whole lot of people will be prosecuted, including the current army chief. What is more, the current chief justice will also find it difficult to justify sitting on the bench that sanctified Musharraf’s 1999 coup and gave him the power to change the constitution. Although the parliament indemnified that coup, the point is whether the parliament had the power to change the basic feature of the constitution, something the Supreme Court of Pakistan has repeatedly said is not permitted.

While the legal and constitutional drama will unfold in the days and weeks ahead, the only thing that can be said with any degree of certainty in Pakistan is that Musharraf is history. If he was a genuine political leader with some following, his current trial would win him sympathy and rehabilitate him in the eyes of the people, as has happened with people like Benazir Bhutto, Asif Zardari and Nawaz Sharif. But as a man who has a following only on Facebook, and no real party or organisation to back him, Musharraf is a political has-been. Whether he will now become a trailblazer by becoming the first coup-maker to be imprisoned in Pakistan or whether he will be let off like his predecessors is the only thing in which he has any further contribution to make in Pakistan's sordid politics.