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Judicial-military conundrum
Faisal SiddiqiJune 29, 2019
“Let us also discuss, without mincing words or feeling shy, the role of the armed forces and the intelligence agencies in the governance paradigm”. — Chief Justice of Pakistan Asif Saeed Khosa
ONE of the central issues in Pakistan’s political and constitutional development has been the civil-military conflict. But interestingly, this conflict has been conceptualised primarily and predominantly as a conflict between political actors (or at times, civil society) and the military. The judicial side of this civil-military conflict has either been denied by contending that the judiciary has been the alleged ‘B team’ of the military or, if acknowledged, the judicial-military conflict has been perceived more as an aberration [departed from the normal, ایک طرح کا بگاڑ]and less as an emerging trend.
But is the judicial-military conflict an emerging trend? And are there any ways to mitigate[کم کرنا] this conflict?
There’s a need for an inter-institutional dialogue to ensure judicial independence & constitutional democracy.
Structural and historical conflict: Between 1947 and 1971, Pakistan had a colonial-minded but independent judiciary, which meant a judiciary which provided legal justice impartially and independently but did not question the legitimacy of unconstitutional regimes or question their fundamental unconstitutional actions. Mohammad Munir, the Machiavellian chief justice, and A.R. Cornelius, the decent chief justice, were really different sides of this same colonial-minded but independent judiciary. The breakup of Pakistan in 1971 led to the establishment of both democracy and democratic constitutionalism (ie adult franchise democracy and the 1973 Constitution) in Pakistan. This laid the foundation for a fundamental structural contradiction between the roles of the judiciary and military.
On one side, protection of democracy and a democratic constitution guaranteed the tremendous power of the judiciary; on the other, the de facto [جو حقیقت میں ہو لیکن قانونی نہ ہو]power of the military elite was fundamentally threatened by both democracy and democratic constitutionalism. Thus came about a structural contradiction between these state institutions. But this contradiction coexisted with the inherent weakness of a judiciary having no coercive [دباو پر مبنی]power to protect itself or implement its decisions. This gave rise to the paradox [باہم متصادم نظر آنیوالی]of both continuing collusion [شرکت] and emerging dissent [مخالفت، عدم اتفاق] with the military elite.
Zulfikar Ali Bhutto’s judicial murder and the legitimisation of the martial laws of Gens Ziaul Haq and Pervez Musharraf are examples of this continuing collusion. But judges refusing to take the martial law oath in 1981, 2000 and 2007, the judicial examination of the military’s role in the 1990s elections, the missing persons cases, and Musharraf’s treason trial ordered by the Supreme Court are some examples of emerging dissent.
Former chief justice Jawwad S. Khawaja may have been right in noting the 2007-2009 judicial movement as a watershed point[turning point] for the judiciary’s increasing independence from the military elite; but 2007 only accelerated the existing structural contradiction and consequential historical conflict. Therefore, this structural and historical context explains both Justice Faez Isa’s current critique of the militarisation of politics and the militarisation of constitutionalism and also explains the witch-hunt in the form of a presidential reference against him, manufactured and processed by Musharraf’s loyalists in the law ministry and the attorney general offices.
Justice Isa’s legal confrontation: The Faizabad dharna judgement dated Feb 6, 2019, authored by Justice Isa, contains a summary of what he thinks is wrong in Pakistan — violation of citizens’ fundamental rights, illegal tactics used to achieve political agendas, lack of security mechanisms to protect citizens, violation of their constitutional role by the military and intelligence agencies, violation of media independence and inaction of Pemra, the weak role of the Election Commission and the misuse of Islam.
But as far as the civil-military conflict is concerned, this judgement makes two key points. Firstly, it contains a stringent [strict]critique of the militarisation of politics and civilian affairs due to the recent alleged unconstitutional role of the military elite especially the intelligence agencies. In short, this is a no-holds-bar critique of the security establishment.
Secondly, far-reaching policy directions are issued on sensitive issues such as the regulation of intelligence agencies and initiation of action against armed forces’ interference in political and civilian matters. More importantly, these directions are based on the untested liberal presumptions that the law and Constitution can on their own restrain the tremendous de facto power of the security elite and such judicial directions controlling de facto military power will be implemented without the need to use force as the judiciary has no coercive powers of its own.
Chief Justice Khosa’s dialogical approach: In his address of Jan 17, 2019, at a full court reference for former chief justice Saqib Nisar, Chief Justice Khosa proposed a different, indigenous approach to problems of institutional conflict especially the civil-military conflict. Such an out-of-the-box approach has four distinct elements. Firstly, there is the need for an inter-institutional dialogue at the summit level to be convened and chaired by the president of Pakistan. This is based on the premise[basis of an argument] that there is nothing in the separation-of-power doctrine which “demands institutional isolation or forbids collective efforts to achieve the common good”.
Secondly, such a summit should be attended by the top parliamentary, judicial and executive leadership including the military and the intelligence agencies.
Thirdly, the result of this exercise will be a “charter of governance” so as to ensure that we don’t “keep drifting or floating aimlessly”.
Fourthly, the underlying purpose of this inter-institutional dialogue is to bolster [support]constitutionalism and the rule of law, strengthen democracy and create conditions for inter-institutional working towards the “real issues of the citizens of this great country”. To put it differently, such a dialogical approach is rooted in legal realism, which realises the destructiveness of an all-out institutional conflict between different state organs as well as the need for dialogue in order to ensure judicial independence, constitutional democracy, human rights and effective state authority.
“Do not cast away an honest man for a villain’s accusation,” cautions Shakespeare. Once this foolish and villainous presidential reference is cast away, the real task of mitigating the judicial-military conflict can finally begin. The consequences of non-mitigation of such a conflict will be tragic because military domination of both politics and constitutionalism will lead to an isolated, ungovernable and unsustainable Pakistani state in the 21st century. On the other hand, demoralisation of the military resulting from the mishandling of this conflict may lead to grave threats to the internal and external security of Pakistan.
The writer is a lawyer.
Published in Dawn, June 29th, 2019
Column 2
Touchy at the top
Irfan HusainJune 29, 2019
WHEN I was at school, the standard response to insults was the old saw: “Sticks and stones may break my bones, but words will never harm me.”
But apparently they do: witness the ban of the phrase ‘selected prime minister’ imposed by the deputy speaker of the National Assembly, Qasim Khan Suri. Apparently, he was offended by the use of this description of his leader as it implied that his party had not been fairly elected.
Clearly, this attempt by the opposition to de-legitimise the party, and question the fairness and transparency of last year’s general elections, has stung the ruling combine. Also, the PTI has promoted a culture of political intolerance that extends from containers to TV studios to our assemblies.
Wit and tolerance continue to elude our politicians.
Recently, I watched with fascination and disgust as a senior PTI member assaulted a Karachi journalist in a TV studio. This is no longer a rare occurrence: the science and technology minister is accused of slapping another journalist at a recent social function.
It would appear that Pemra, the electronic media regulator, is on the same wavelength as the deputy speaker. A couple of weeks ago, it banned the use of satire on TV channels. Again, it would seem that our rulers have very thin skins, and can’t tolerate being laughed at.
And yet the PTI has been in the forefront of using abusive language against its opponents. Imran Khan has set an example for his party members and supporters by employing crude insults against his rivals during his long campaign to get to Prime Minister House.
This is in stark contrast to his admiration of the British parliament where political barbs[سخت جملے] are elegantly phrased, and violence is unheard of. Indeed, members of opposing parties are often seen having a pint [liquor] together in one of the Westminster bars after a session of cut-and-thrust debate.
Sadly, having adopted the Westminster model of parliamentary democracy, we have absorbed none of the tolerance that underpins it. Of course, each country evolves its distinct political ethos [ معاشرتی اقدار] based on its own culture and traditions.
Unfortunately, far too many of our elected members bring their crude backgrounds into our assemblies. Machismo [ مردانہ غرور] and swagger [اکڑ] have replaced gravitas [وقار] and sobriety. Party leaders do little to discipline members for their repeated misbehaviour. And it doesn’t help that Imran Khan expressed his true feelings about the National Assembly when he sent “a hundred thousand curses” at it during a rally in Lahore. His attendance record first as a sitting member, and now as prime minister, is pathetic. Perhaps his presence could set a better tone, but somehow, I doubt it.
Perhaps this kind of thuggish, violent behaviour can be best understood by examining our culture of ‘honour’ where no perceived insult goes unpunished. This tribal code has resulted in countless vendettas [دشمنی اور انتقام] and ‘honour’ killings. So any criticism, whether in a newspaper, a TV channel, or the floor of the House, has to be countered immediately and forcefully.
Ultimately, democracy is about the ability to hear opposing views even when they run counter to your own. In Pakistan, as well as in many other ex-colonies, we have acquired the trappings[خصوصیات] of parliamentary democracy in the form of imposing parliament buildings and elections. But wit and tolerance continue to elude [دور دور رہنا] our politicians.
Imran Khan is a prime example of this syndrome. I do not recall him smiling or laughing at any of his public appearances. He is always grim and fulminating [غصے میں ] against his opponents. Hey, lighten up, Kaptaan! Life can’t be all that bad!
The impulse to censor critical comment runs deep in Pakistani politics. Of course, military governments have the power to impose curbs on the media at will. But elected politicians, too, can be touchy about being exposed and mocked.
Technically, Pemra is an independent body, and the deputy speaker is supposed to be non-partisan, shedding his party affiliation when he assumes his office. But as we have seen, neither has performed in a neutral manner. Members of the Assembly are privileged with freedom of speech, while the electronic media can surely say pretty much anything as long as it doesn’t cross the line decency and accuracy.
However, as we have seen all too often, most of our TV channels churn out unfounded accusations and wildly inaccurate comments. But as long as these are directed at the opposition, Pemra doesn’t bat an eye. It is only when some of these barbs are aimed at the ruling party that the regulator wakes up to the dangers posed by free speech.
Social media, too, has felt the weight of censorship. Bloggers have been kidnapped, and allegedly tortured by anonymous thugs. The state has acquired software that permits it to access emails and mobile phones. Ironically, all this is happening when elected governments are in office, if not really in power.
Until these undemocratic practices change, who can deny the use of the phrase ‘selected PM’ to describe reality?
irfan.husain@gmail.com
Published in Dawn, June 29th, 2019
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