PILDAT Monitor on Civil-Military Relations in Pakistan | December 2019

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This monitor is meant to identify key developments during the month on Civil Military Relations in Pakistan with selected high-profile international developments included occasionally.

In this Issue:

  1. Gen. (Retd.) Musharraf found guilty of ‘high treason’
  2. Government’s Review Petition on COAS Extension
  3. Dr. Moeed Yusuf appointed Special Assistant to Prime Minister on National Security
  4. 227th Corps Commanders’ Conference
  5. COAS meets Foreign Dignataries
  6. PM-COAS Interactions
  7. International Developments

Gen. (Retd.) Musharraf found guilty of ‘high treason’

For the first time in 7 decades and after 4 military coups overthrowing democratically-elected governments in Pakistan, a former military commander, Gen. (Retd.) Pervez Musharraf, has been convicted of ‘high treason’ and handed a death sentence under Article 6 of the Constitution on charges of promulgation of self-declared emergency and dismantling of the judicial system.

Article 6 of the Constitution, titled “High Treason” states that

  1. Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason
  2. Any person aiding or abetting [or collaborating]  the acts mentioned in clause (1) shall likewise be guilty of high treason

(2A) An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and a High Court

The verdict was announced on December 17 by the Special Court and was split 2-1, with Justice Shahid Karim of the Lahore High Court agreeing with Peshawar High Court Chief Justice Waqar Ahmad Seth and Justice Nazar Akbar of the Sindh High Court dissenting.

Concluding the trial of Gen. (R) Pervez Musharraf for the high treason defined in article 6 of the Constitution on promulgation of self-declared emergency and dismantling of the judicial system, the Court stated that “the trial of high treason is the requirement of the Constitution against those individuals who undermine or attempt to undermine the Constitution by any means. This court after presentation of undeniable, irrefutable and unimpeachable evidence by the prosecution against the accused reaches to the conclusion that indeed the accused is guilty and deserves exemplary punishment.”

The judgement went on to consider the military high command at the time to be “equally involved” in the imposition of emergency. “It is unbelievable and unimaginable that sucjh an extreme act is comitted alone by a single man in uniform. The then Corps Commanders Committee in addition to all other uniformed officer who were guarding him each and every time, with boots on, are equally and fully involved in the act and deeds ” of Gen. (Retd.) Musharraf and that the Federal Government “is not absolved of not investigating these officers and filing a complaint against them, which they can do at any time.” [1]

Para 56 of the detailed judgement also states that while each member of Armed Forces is bound by the oath to uphold the Constitution and have sworn not to engage themselves in any political activities, “in this respect, the oath has been violated by each and every member of the higher command in the armed forces by failing to preserve, protect and defend the Constitution, either siding, aiding, supprting or facilitating the accused [Gen. (Retd.) Musharraf] or remaining silent to this act while being in uniform as the accused’s plane had not yet landed that his cronies acted unconstitutionally on the ground, for the first time when the Constitution was usurped in the year 1999.”

The judgement also noted that Gen. (Retd.) Musharraf has “persistently and stubbornly strived ever since the commencement of this trial, to delay, retract, and in fact evade it,” while the Court “generously granted nummerous opportunities” to him to join the trial.

While many lawyers and civil society organisations hailed the verdict convicting Gen. Musharraf,[2] concerns, however, were raised on para 66 of the judgement which said that “We direct the law enforcement agencies to strive their level best to apprehend the fugitive/convict and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk, Islamabad, Pakistan and be hanged for 03 days.” It is inexplicable why the Honourable Judge added this paragraph despite the fact that the other judges on the Special Court pointed out that this paragraph did not conform to the Constitution. The fact is that this paragraph has unnecessarily dented the credibility of the judgment.

In a strong reaction, the official spokesperson of the Armed Forces, Inter-Services Public Relations, issued a statement almost immediately after the short judgement was announced on December 17, which said that the judgement has been “received with lot of pain and anguish by rank and file of Pakistan Armed Forces.” It went on to say that An ex-Army Chief, Chairman Joint Chief of Staff Committee and President of Pakistan, who has served the country for over 40 years, fought wars for the defense of the country can surely never be a traitor.” The statement raised questions on the legal process adding that “due legal process seems to have been ignored including constitution of special court, denial of fundamental right of self defence, undertaking individual specific proceedings and concluding the case in haste.”[3]

Treason is translated as ‘Ghaddari’ in Urdu and Ghaddari is generally understood to be joining hands with the enemies of the State and working against the State. It is in this context that one can understand the ‘pain and anguish’ of the rank and file of the Armed Forces about their former commander’s conviction but there is a need to create the awareness that the treason in this case is the subversion of the Constitution. Despite the connotations of the term ‘treason’, the institutional reaction was incomprehensible as the verdict was directed against an individual and not the institution. The verdict also did not question the professional service and contribution of Gen. Musharraf but was solely passed against him on charges of promulgation of self-declared emergency and dismantling of the judicial system in November 2007. High treason is a term employed by the Constitution and certainly does not mean an individual has betrayed the homeland and it is used against subverting the Constitution of Pakistan. Dawn rightly argued that “fighting for one’s country does not preclude the commission of treachery. If that were so, two senior uniformed officials would not have been court-martialled and convicted on charges of espionage earlier this year.” [4]

Vice Chairman and Chairman Executive Committee of the Pakistan Bar Council said, while commenting on the ISPR statement, that there are legal provisions, procedures and proper course for agitating any legal flaws in the verdict by way of appeal, revision or constitutional petition. [5]

Government’s Review Petition on COAS Extension

On December 26, Federal Government submitted a review petitition in the Supreme Court against the earlier direction of the Supreme Court in which it had asked the Federal Government and the Parliament to specify the terms and conditions of the service of the Chief of Army Staff through an act of Parliament and clarify the scope of Article 243 of the Constitution within 6 months.[6] The Federal Government has filed the review petitition and the Army Chief, Gen Qamar Javed Bajwa, also appears as one of the petitioners in the review petitition, alongside Prime Minister and President.

On November 28, a day before the retirement of Chief of Army Staff, Gen. Bajwa, and after three days of hearings, the Supreme Court bench comprising the then Chief Justice of Pakistan, Justice Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah had granted a six-month extension to Gen. Bajwa’s tenure as COAS. [7] It must be noted that Justice Asif Saeed Khosa has retired on December 21 while the new Chief Justice, Justice Gulzar Ahmed, has taken oath of office.

The review petition questions the honourable Court’s interference in the re-appointment of Gen. Bajwa. It states that “given the fifth generation war” the Court’s interference in the matter was “opposed to public policy, public good and the constitutional conscience of the state and the society.”[8] It also maintains that the appointment, or re-appointment of the COAS was “strictly in accordance with the settled departmental practice followed for seven decades or so,” even though only one other COAS was granted a tenure extension by a democratically-elected government before this.

The review petitition also states that there is no requirement of legislation on the issue. “If the Parliament in the last 7 decades or so has consciously chosen, with open eyes, not to legislate in a particular sphere and let the issue/matter be governed through conventions or practices/customs/usages, this is sufficient indicator that the Parliament i.e. the chosen representatives of the people, has exercised its choice not to legislate.”

Although General Bajwa chose to be one of the petitioners in the review petitition, the review petitition maintains that General Bajwa “himself never sought a re-appointment.” Para L is devoted entirely as to why General Bajwa’s extension is necessary in the face of “Pakistan undergoing a 5th generation war.” That “the Pulwama incident bears testimony to the preparedness of our Armed Forces under the able captaincy of General Bajwa, who on his proactive initiative has also mustered healthy military international relations and support for Pakistan.” It also argues that “General Bajwa’s contribution to take vital steps so as to facilitate safety and security in the country, will go down in history,” and that “there were seminars and processions in favour of General Bajwa’s re-appointment, from which the pulse of the public opinion can be appreciated.”

While the review petition may be understandable in arguing that the executive’s constitutional authority must be respected and the Court should have explored every possible explanation to sustain an executive action instead of stepping into the shoes of the Executive, it is inexplicable as to why the review petition should have argued there is public support for Gen. Bajwa’s extension. The petitition is itself arguing that it is a service matter and presumably, therefore, should be decided purely for professional reasons. The post of Chief of Army Staff, which the petition terms as “the most significant military appointment” is surely not a political appointment in which public popularity and support is to be a consideration at all. Why should the review petition then contradict its own argument and state that the re-appointment was “also in line with the public opinion and popular aspirations to appoint General Bajwa for another term.”

Dr. Moeed Yusuf appointed Special Assistant to Prime Minister on National Security

On December 24, 2019, Prime Minister Imran Khan appointed Dr. Moeed Yusuf as Special Assistant to PM on National Security with the status of Minister for State. Before being elevated to Special Assistant, Dr. Moeed Yusuf was appointed the Chairman of Strategic Policy Planning Cell since September 26, 2019. Dr. Moeed was serving as the Associate Vice President for Asia at the United States Institute of Peace prior to joining the Government of Pakistan.[9]

227th Corps Commanders’ Conference

The 227th Corps Commanders’ Conference was held at the GHQ on December 10, 2019.[10] COAS General Bajwa presided over the meeting.

COAS meets Foreign Dignataries

  1. Mr Denis Valentinovich Manturov, Minister of Industry & Trade of Russian Federation, called on Chief of Army Staff General Qamar Bajwa at the GHQ on December 11, 2019.[11]
  1. Dr. Christian Turner, British High Commissioner to Pakistan, called on COAS General Bajwa at GHQ on December 11, 2019.[12]
  1. Mr. Zalmay Khalilzad, US Special Representative for Afghan Reconciliation, called on COAS General Qamar Bajwa at the GHQ on December 13, 2019. US Ambassador in Pakistan Mr. Paul W Jones was also present.[13]
  1. COAS General Qamar Bajwa called on Sheikh Mohammed bin Zayed Al Nahyan, Deputy Supreme Commander of the UAE Armed Forces, Crown Prince of Abu Dhabi in Abu Dhabi, UAE on December 14, 2019.[14]
  1. US Senator Lindsey Graham called on COAS General Qamar Bajwa at the GHQ on December 16, 2019.[15]
  1. Mr Kentaro Sonoura Special Advisor for Foreign Affairs to Prime Minister Shinzo Abe of Japan called on COAS General Qamar Bajwa at the GHQ on December 23, 2019. [16]

PM-COAS Interaction

  1. Prime Minister Imran Khan met President Arif Alvi and COAS Gen Bajwa at the President House on December 21, 2019. Federal Minister for Defense Pervaiz Khattak was not part of the meeting.[17]

International Developments

Indian Army Chief chided for supporting Modi Government

On December 26, India’s Chief of Army Staff took a public stand on protests against the Indian Citizenship Amendment Act (CAA), saying that instigating large crowds to turn violent and carry out arson doesn’t amount to leadership. Addressing a public event, he said that “Leaders are not those who lead people in inappropriate directions, as we are witnessing in a large number of universities and college students…the way they are leading masses of crowds to carry out arson and violence in our cities and towns,” “This is not leadership.”[18]

Soon after, General Rawat, who has since assumed the newly-created position of India’s first Chief of Defence Staff, was widely criticised by Indian political parties and leaders for taking a political stand and overstepping his professional brief. Immediately after the statement, Indian MP, Mr. Asaduddin Owaisi, tweeted that “leadership is about knowing the limits of one’s office. It is about understanding the idea of civilian supremacy and preserving the integrity of the institution that you [Gen Bipin Rawat] head.” [19]

The Communist Party of India termed the Army Chief’s statement unconstitutional. In a statement, the party said that the Indian “Army Chief’s statement underlines as to how the situation has degenerated under the Modi government where the highest officer in uniform can so brazenly breach the limits of his institutional role. …… Such obnoxious interference in matters of democratic struggles from top ranking military professionals is unheard of in the history of independent India.” The party urged that “the General apologises to the nation for his indiscretion which has extremely adverse ramifications for the Constitutional arrangement in the country. We also demand that the government takes note of such a breach and censures the General.” [20]

Head the Army and mind your business”, said the senior Congress leader, Mr. P Chidambaram, while speaking at a public rally against the Citizenship Amendment Act. Mr. Chidambaram also alleged that the Indian Army Chief and the Director-General of Police (DGP) of Uttar Pradesh had been asked to support the government and it was a “shame.” [21]

India amends Army Rules to allow Extension in service of CDS

On December 26, Indian Ministry of Defence Centre amended its Army Rules allowing the Central government in India to give extension of service to the Chief of Defense Staff (CDS), subject to maximum age of 65 years in public interest.

The amendment states that “Provided that the Central Government may, if considered necessary, in public interest, so to do, give extension of service to the Chief of Defence Staff, referred to in the Explanation to clause (a) of sub-rule (5), for such period or periods as it may deem necessary subject to a maximum age of 65 years.”[22]

A number of amendments have also been made in Navy and Air Force regulations in India in view of the creation of the post of Chief of Defence Staff (CDS). The Indian Army, Navy and IAF chiefs, as per the Indian government rules, can only serve up to the age of 62 or for three years, whichever is earlier. [23]

Indian media reported that the Indian Cabinet Committee on Security approved the creation of the CDS who will act as the Principal Military Adviser to the defence minister on all matters relating to tri-services and the permanent Chairman of Chiefs of Staff Committee, however, he will not exercise command authority.[24] The CDS will not be eligible to hold any government post after demitting office. The CDS will also not be allowed to take up any private employment without prior approval for a period of five years after demitting the office. [25]

References

  1. Complete text of the judgement in Trial of Gen. (R) Pervez Musharraf for the high treason defined at article 6 of the Constitution, punishable by High Treason Punishment Act, 1973, through abrogation of the Constitution on promulgation of self-declared emergency and dismantling of the judicial system, https://www.scribd.com/document/440357769/Special-court-s-detailed-verdict-in-Musharraf-treason-case#fullscreen&from_embed (accessed December 30, 2019)
  2. Dawn, [Website], 2019, https://www.dawn.com/news/1524028 (accessed December 30, 2019)
  3. ISPR, [Website], 2019, https://www.ispr.gov.pk/press-release-detail.php?id=5554 (accessed December 30, 2019)
  4. Dawn, [Website], 2019, https://www.dawn.com/news/1523149 (accessed December 30, 2019)
  5. Pakistan Bar Council, [Website], 2019, http://pakistanbarcouncil.org/2019/12/20/19-12-2019/ (accessed December 30, 2019)
  6. Dawn, [Website], 2019, https://www.dawn.com/news/1524515/govt-files-review-petition-after-finding-glaring-omissions-mistakes-in-sc-verdict-on-army-chiefs-extension (accessed December 30, 2019)
  7. PILDAT, [Website], 2019, https://pildat.org/civil-military-relations1/pildat-monitor-on-civil-military-relations-in-pakistan-november-2019 (accessed December 31, 2019)
  8. The News, [Website], 2019, https://e.thenews.com.pk/pdf-data/Final-Review.pdf (accessed December 31, 2019)
  9. Dawn.com, [Website], 2019, https://www.dawn.com/news/1524213/dr-moeed-yusuf-appointed-as-pms-special-assistant (accessed December 31, 2019)
  10. Twitter.com, [Website], 2019, https://twitter.com/OfficialDGISPR/status/1204363678407110656 (accessed December 31, 2019)
  11. Inter-Services Public Relations, [Website], 2019, https://ispr.gov.pk/press-release-detail.php?id=5548 (accessed December 31, 2019)
  12. Twitter.com, [Website], 2019, https://twitter.com/OfficialDGISPR/status/1204740235357237248 (accessed December 31, 2019)
  13. Twitter.com, [Website], 2019, https://twitter.com/OfficialDGISPR/status/1205438968273276929?s=20 (accessed December 31, 2019)
  14. Twitter.com, [Website], 2019, https://twitter.com/OfficialDGISPR/status/1205858780803678208?s=20 (accessed December 31, 2019)
  15. Twitter.com, [Website], 2019, https://twitter.com/OfficialDGISPR/status/1206522031874945024?s=20 (accessed December 31, 2019)
  16. Inter-Services Public Relations, [Website], 2019, https://ispr.gov.pk/press-release-detail.php?id=5562 (accessed December 31, 2019)
  17. Dawn.com, [Website], 2019, https://www.dawn.com/news/1523627/gulzar-takes-over-as-27th-chief-justice-of-pakistan (accessed December 31, 2019)
  18. India Today, [Website], 2019, https://www.indiatoday.in/india/story/army-chief-gen-bipin-rawat-caa-protests-1631573-2019-12-26 (accessed December 31, 2019)
  19. Twitter, [Website], 2019, https://twitter.com/asadowaisi/status/1210100936284102656 (accessed December 31, 2019)
  20. India Today, [Website], 2019, https://www.indiatoday.in/india/story/army-chief-bipin-rawat-caa-nrc-protests-cpi-m-yechury-1631717-2019-12-26(accessed December 31, 2019)
  21. India Today, [Website], 2019, https://www.indiatoday.in/india/story/head-the-army-and-mind-your-business-chidambaram-slams-gen-rawat-for-remarks-on-caa-protests-1632183-2019-12-28 (accessed December 31, 2019)
  22. Twitter, [Website], 2019, https://twitter.com/parasnsingh95/status/1211222527554404352/photo/1 (accessed December 31, 2019)
  23. India Today, [Website], 2019, https://timesofindia.indiatimes.com/india/govt-amends-army-rules-to-allow-chief-of-defence-staff-to-serve-till-65/articleshow/73019504.cms (accessed December 31, 2019)
  24. Indian Express, [Website], 2020, https://indianexpress.com/article/explained/explained-what-are-roles-powers-chief-of-defence-staff-6195264/ (accessed January 7, 2020)
  25. Live Mint, [Website], 2019, https://www.livemint.com/news/india/maximum-age-limit-for-chief-of-defence-staff-put-at-65-government-amends-rules-11577632380066.html (accessed December 31, 2019)

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