Musharraf’s malaise

Last week Prime Minister Nawaz Sharif initiated treason proceedings against retired general and former president Pervez Musharraf. At face value, it appears Sharif is finally getting his revenge. In 1999, Musharraf, who was then chief of army staff, led a coup against the Sharif government. The coup was triggered by Sharif’s attempt to replace Musharraf because of a disagreement over a military operation in the Kargil district of Kashmir. Sharif’s subsequent imprisonment and eight-year-long exile in Saudi Arabia only added fuel to the fire. No wonder he wants Musharraf charged with treason.

It could be that simple. But the lengthy ledger of complaints against Musharraf shows a more complex set of power dynamics and relationships at work, which goes beyond just the two men. The former president also faces criminal charges related to the 2007 assassination of former Prime Minister Benazir Bhutto. Her supporters continue to claim that Musharraf killed Bhutto for deliberately failing to provide her, a former head of state, with adequate security despite well-known threats to her life.

Musharraf also faces criminal charges in the death of Baluch rebel leader Nawab Bugti in a 2008 military operation. Musharraf is still reviled in Baluchistan for this and other military actions, including the scores of enforced disappearances in the province that occurred under his watch.

In addition to these formal — and serious — charges, Musharraf has been criticized for his questionable security policies. He empowered Islamist parties closely aligned with militants in exchange for their participation in the government; this political gesture inevitably weakened the country’s security environment, especially in Khyber Pakhtunkhwa province. He is also accused by politicians and the military alike of cultivating a nontransparent and ambiguous relationship with the United States on counterterrorism cooperation at the expense of Pakistan’s national security interests.

None of these actions, however, appears to violate Article 6 of the Constitution, where high treason is defined as:

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.

It wasn’t until Musharraf began poking around in the judiciary’s space that his actions became vulnerable to claims of treason. In March 2007 Musharraf removed Supreme Court Chief Justice Iftikhar Chaudhry from his position for unspecified inappropriate behavior. Many believed, however, the removal was intended to remove the activist judiciary’s oversight of Musharraf in advance of the 2008 general elections. The courts reinstated Chaudhry in July of that year and deemed Musharraf’s actions illegal. This inevitably deepened tensions, which led Musharraf to declare a state of emergency and suspend the Constitution in November 2007, after which he once again dismissed Chaudhry along with numerous other senior judges.

It is this series of actions that Prime Minister Sharif is now labeling as treasonous. But the judicial process against Musharraf started well before Sharif took office in June; on April 19 the outgoing government passed a resolution in the Senate calling for Musharraf to be tried for treason. During the same week, the Islamabad High Court was also hearing a case alleging that Musharraf unconstitutionally dismissed and detained senior judges during the 2007 state of emergency. It was this court’s refusal to renew Musharraf’s bail that led to his house arrest.

In a related development, the Supreme Court continues to hold hearings on petitions accusing Musharraf of treason. As part of this process, the court this week pushed Sharif to detail how he would proceed with the allegations; under Pakistani law only the government can initiate charges of treason.

Many view Sharif’s initiation of treason proceedings as merely a response to pressures of an overly activist Supreme Court, noting the government’s cautious and calibrated response. When asked about the treason charges against Musharraf, Attorney General Muneer Malik’s stated that the "the federal government will proceed in accordance with the law and also take political forces into confidence through a consultative process."

Malik’s bifurcated comments highlight the predicament the government faces; it must respond to the Supreme Court’s petition but at the same time cannot afford to lose the support of certain "political forces," namely the military, so early on in its tenure. This tension is likely the reason the government has chosen a path that could potentially be drawn out for months. It has outlined an initial process by which it will constitute a special team to conduct an investigation into Musharraf’s alleged treason. Once the investigation is complete, the government will file a complaint against Musharraf and establish a special court that will try him for treason.

On a procedural level, no one has ever been formally tried for treason in Pakistan, making the operational aspects of the law uncertain and liable to all manner of questions about procedure and substance; these moves would no doubt put further delays on any effort to punish Musharraf.

So far, the military has not taken a public role in any of Musharraf’s cases. As long as Gen. Ashfaq Kayani remains chief of army staff, the military will avoid direct involvement in politics and legal issues. While Kayani is bothered by Musharraf’s treatment, he remains focused on major internal military challenges, including low morale resulting from continuing conflict in Afghanistan and in the tribal areas. But a very public trial against a retired general could also exacerbate the morale problem among the ranks. If Musharraf’s case heads in this direction, the military could increase pressure on both the judiciary and civilian leadership toward a quiet resolution.

No matter how delayed the process is, everyone — Sharif, Musharraf, and the military — will eventually face the music, and it will give them all a headache: The Supreme Court will not let this issue die. Weakened by his plethora of enemies, Musharraf will have to face some kind of punishment for the actions of 2007.

Sharif, despite his caution, will likely gloat in private and chalk it up as a win for more civilian oversight of the military. But no matter how much the civilian government hides behind the court’s pressures, the military will direct its ire toward Sharif if certain red lines are crossed with Musharraf. Sharif’s June 24 address to the Parliament, in which he explicitly said Musharraf committed treason, seemed to have already sealed the retired general’s fate. But it could have sealed Sharif’s fate as well. Unless the judiciary, military, and prime minister can agree to a face-saving exit for Musharraf, the stage is set for a more public confrontation among all three, introducing a level of political uncertainty for an otherwise strong PML-N government.

The specter of political uncertainty seems to offer Sharif some justification for quietly resolving Musharraf’s "it’s complicated" relationship with the judiciary and the government. But Musharraf will likely pay for his actions regardless, as almost every former Pakistani leader before him has done. Pakistan’s powerful leaders have regularly looked to criminalize the actions of their political opponents. Musharraf himself pursued both Sharif and two-time Prime Minister Benazir Bhutto with legal cases when he was in power, and Bhutto’s father, Zulfikar Ali Bhutto, was tried and hung on treason charges in 1979 during the rule of Gen. Zia ul-Haq. As just the latest in this line of accused politicians, Musharraf must now suffer the consequences, whatever they may be.

Shamila N. Chaudhary is a South Asia analyst at the Eurasia Group and a senior fellow at the New America Foundation. She served as director for Pakistan and Afghanistan at the White House National Security Council from 2010 to 2011.