The general and the judges

Throughout his regime, Gen Musharraf’s relations with the judiciary remained complicated, to say the least

The general and the judges


n the beginning, he was welcomed. The general seized power in 1999 from ‘corrupt politicians with dictatorial tendencies’. The then prime minister, Nawaz Sharif, had attempted to pass a constitutional amendment that would have given his government sweeping powers. He was to be amir-ul momineen, joining the list of leaders of this nation with no stature seeking to use the religious card.

The general’s takeover was endorsed by twelve Supreme Court judges. These twelve men violated their oath to preserve, protect and defend the constitution. One of them was Justice Iftikhar Muhammad Chaudhry. They held that the general’s actions were “spontaneously welcomed by all sections of society.” The judges were concerned that the Sharif government was systematically destroying all institutions including the judiciary. Musharraf was the saviour and the judges initially gave him three years as chief executive to achieve his objectives. Not only did the Supreme Court endorse his action of putting the constitution in abeyance, it also authorised him to amend the constitution – something he had never asked for. It is no wonder that some years later the general would say that the constitution was just a piece of paper that you could throw in the dustbin. This was what he had done. His actions were rewarded with absolute power over his country.

As is often the case, the general outstayed his welcome. His relationship with the bench became problematic. It is challenging when you don’t get your way. Particularly when you are accustomed to your orders being followed without question. An international banker, Shaukat Aziz, was Musharraf’s selected prime minister. His mandate was to transform the nation through his international banking expertise. Part of this plan was the privatisation of the Pakistan Steel Mills. The Supreme Court scuppered this plan and held that the deal was unlawful. The general and his selected banker were unhappy with an interventionist court blocking Executive action.

Matters came to a head in March 2007. Iftikhar Muhammad Chaudhry who had paved the way for the Musharraf era was now the chief justice. He met a uniformed president Musharraf at the Army House in Rawalpindi. It is disputed whether he was summoned or sought the meeting himself. It no longer matters. There is an iconic photo of the uniformed general facing the sitting chief justice. It became an image of civilian defiance that would define the start of the Lawyers’ Movement.

Following the meeting, a reference was filed against the chief justice and he was stopped from working. Musharraf had been vested with absolute power for over seven years. The nation was tired of him. Lawyers and the civil society found a symbol in the flawed chief justice. The reference was challenged in the Supreme Court. In the summer of 2007, the reference was quashed and the chief justice reinstated.

The general and the judges

In November 2007, the Court was to decide a case on whether Musharraf could contest for the office of president whilst in uniform. Rather than wait for the uncertain result, the general declared an emergency and suspended the constitution. It was a desperate move by a visibly shaken general; the beginning of the end. For the first time, the superior judiciary took a collective stand and many of the judges were either not invited to or did not take oath under Musharraf’s new dispensation. The movement to restore them became an anti-Musharraf coalition of lawyers, civil society and politicians.

Ultimately, the judges were restored. The nation learnt that independent judges are not necessarily good or wise judges. The most famous leader of the Lawyers’ Movement, Aitezaz Ahsan, later conceded that among its abiding legacies were violent lawyers and arrogant judges.

The general had faded into national insignificance when the Nawaz Sharif government decided to try him for high treason. The trial was concluded in his absence since he had left Pakistan in 2016 never to return alive. A three-member special court convicted him by a majority of 2-1. He was sentenced to death. One of the two majority judges, Justice Waqar Seth, directed the law enforcement agencies that if found dead, “his corpse be dragged to D-Chowk, Islamabad, Pakistan and be hanged for three days”. The other majority judge, Justice Shahid Karim, sensibly did not endorse this uncivilised punishment which has no foundation in law.

The basis of initiation of proceedings against the general before the special court “since its inception to the culmination” was declared unlawful by a three-member bench of the Lahore High Court in 2020. It was held that since this foundation was unlawful, “any superstructure raised over it shall fall to ground.” The PTI-led government through the office of the Attorney General supported the legal position taken by the general’s lawyers in the Lahore High Court. This Lahore High Court decision was appealed in the Supreme Court.

Our generals are tasked with protecting us from the enemy in battle. For most of our history, they have been focused on other jobs. The late general’s slogan was “Pakistan first”. It is a slogan no patriot would dispute. The nation suffers and progress is inhibited by military intervention in politics. Regardless of his motives, Gen Musharraf did not leave his country in a better place than where he had found it. If they truly want Pakistan to prosper, generals and judges need to stop lecturing others and abide by their oaths of office.

The writer is an advocate of the Supreme Court of Pakistan

The general and the judges