Two Trucks and One Jeep
In a reality check to the wild celebrations that broke out in Pakistan after the Supreme Court declared ‘illegal and unconstitutional’ the emergency that was imposed by General Pervez Musharraf on 3rd November 2007, former Prime Minister Shujaat Hussain reminded his compatriots that “two trucks and a jeep” rolling out of the military headquarters in Rawalpindi is all it takes to disrupt democratic rule in the country. While everyone from the president down have welcomed the Supreme Court ruling, and said that it will strengthen democratic institutions and “block the way of any unconstitutional usurpation of the people’s rights of governance,” they are probably singing the hosannas a little too early in the day. No doubt, in its own way, the Supreme Court under chief justice Iftikhar Chaudhry has passed a ‘historic’ judgement, but whether this will be able to stop the ‘two trucks and a jeep’ will not be known until after the next military coup in Pakistan.
Thrice in the past, the Supreme Court of Pakistan has gone against the establishment and ruled in favour of democracy and the politicians. The first time was in 1972 when the bench headed by the then chief justice Yakoob Ali Khan ruled that General Yahya Khan’s martial law regime was illegal. Of course, Yahya was no longer in power by the time this ruling was made. Then in 1993, the then Supreme Court headed by Nasim Hasan Shah (one of the judges who acted as the executioner of Zulifkar Ali Bhutto) ruled that the dismissal of Nawaz Sharif’s first government by President Ghulam Ishaq Khan was wrong and ordered the government to be restored. At that time, the then Army Chief Gen. Abdul Waheed Kakar intervened and forced both Ghulam Ishaq Khan and the restored Prime Minister, Nawaz Sharif, to resign.
The third time was in 2007 when Chief Justice Iftikhar Chaudhry was restored to office by the Supreme Court. In this case, the pressure of the public, the lawyers’ movement (the threats and defiance that the judges faced from the lawyers) and the general turn of political climate against Musharraf (he appeared totally baffled by the sudden turn of events against him), and most of all, the confidence and sense of empowerment that Justice Iftikhar Chaudhry’s ‘No’ to a military dictator gave to the rest of the judiciary, ensured the chief justice’s restoration. Other than these three past precedents, there is not a single instance until the current ruling where the judiciary has challenged the military establishment’s political shenanigans.
The reason for scepticism over the efficacy of this latest ruling of the Supreme Court in preventing another military intervention is based on Pakistan’s sordid past. The 1972 ruling was followed by the inclusion of Article 6 in the constitution of 1973 that made any abrogation or subversion of the constitution or any aiding or abetting of such subversion (read military coup) an act of high treason which would be punishable by death. Together, it was believed, these two measures would close the doors to any military takeover. And yet, within a couple of years (1977), Zulfikar Ali Bhutto was overthrown in a military coup by General Ziaul Haq. Some two decades later, General Pervez Musharraf usurped power from a prime minister who enjoyed a two-thirds majority in Pakistan’s National Assembly. Therefore anyone who imagines that the door has been shut on military coups forever is only fooling himself.
The act of deposing a lawfully constituted civilian government in Pakistan has been perfected into a fine art by the Pakistan Army, only the timing has to be right. After the ‘two trucks and a jeep’ have done their job, the first thing that a military ruler does after taking over is sending the politicians either home or to prison. The next target is the judiciary. Inconvenient judges are identified and then eased out by not being invited to take the oath on the Provisional Constitutional Order (PCO) that is issued by the military dictator. Once the judiciary is packed with ‘loyal’ judges who in their new oath of office have sworn to not question the validity of the coup, any legal challenge to the martial law regime becomes a mere formality. Often the legal challenge is mounted by a lackey of the new regime just in order to allow the courts to validate the takeover. Once this is done, then depending upon the political situation, elections are held in which the winners are invariably the King’s party who then manoeuvre to indemnify the actions of the coup-makers.
The critical aspect in this entire game is timing. Military coups generally take place after the civilians have fouled things up so badly or things have deteriorated to a point where the government of the day has reached the summit of unpopularity. The Generals march in at that stage and are welcomed as ‘saviours’ by the people as well as opposition politicians. In these circumstances, if judges are sacked, the bureaucracy is purged and the Augean stables of politics cleansed, there is not a murmur of protest from anywhere or anyone. Chances are that something similar will happen when the next military coup takes place. If at that stage, a few judges try to defy the army, they will simply be locked away and that will be the end of the matter.
With time, however, a military regime too starts becoming unpopular and there comes a stage when either on account of political mistakes (as in the case of Musharraf and to an extent, Ayub Khan) or because of cataclysmic events like the 1971 debacle (as in the case of Yahya) or on account of ‘divine intervention’ (in the case of Zia), the continuation of a dictator in power becomes impossible. This is when there is a transition to civilian rule (Pakistanis like to call it democracy!). It is during this transition that rulings like the one given on 31st July, 2009, or the ones passed earlier in 1972, 1993 and 2007 become possible. And this is also the reason why this judgement will mean absolutely nothing until and unless the judiciary finds the courage to stand up against the next military regime, as and when it usurps power. After all, it is one thing to pass such a judgement at a time when the situation is not conducive for the army to intervene directly and quite another to rule against the army when it has just taken over.
To put it simply, General Musharraf is down and out today and what better time to kick him in the face? The fact that he is still widely reviled inside Pakistan makes the task of making him a scapegoat and a fall guy for all that has gone wrong in recent years so much easier for everyone – for the army which in an effort to restore its tarnished image can now wash its hands off the ‘wrong’ and unpopular decisions made by Musharraf, for the judiciary which is giving Musharraf as good as it got from him, and for the civilian government which having failed miserably in providing even a modicum of good governance finds it convenient to satisfy the blood-lust of the people by making a spectacle of a former dictator.
All this is not to argue against the merits of the judgement. There can be no two opinions that the emergency imposed on 3rd November 2007 by Musharraf (not as president but as army chief) was a euphemism for a military coup and as such was totally illegal and unconstitutional, something that Musharraf himself had admitted. But then why hold him alone responsible? What happens to all those people who ‘aided and abetted’ this act, which should include the current Army Chief and most of the top brass of the Army as also the entire ruling party of that time?
Perhaps the judges already realise the limits of their power and that is why they have quite conveniently left to the government the decision on prosecuting Musharraf on charges of high treason. The government faces a Hobson’s choice on this issue: If it proceeds against Musharraf, it might invite a backlash from the Army (especially since Musharraf could point fingers at all those people who aided and abetted his actions on 3rd November, 2007, many of whom are today holding pivotal positions in the Army and bureaucracy). What is more, such a move against Musharraf could also violate pledges and understandings reached with foreign powers that played the role of guarantors in the past. On the other hand, if the government does not move against Musharraf, it will face public opprobrium and open itself to charges of supporting a hated dictator.
