Judicial-military conundrum

June 29, 2019

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The writer is a lawyer.
The writer is a lawyer.

“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 and less as an emerging trend.

But is the judicial-military conflict an emerging trend? And are there any ways to mitigate 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 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 power to protect itself or implement its decisions. This gave rise to the paradox of both continuing collusion and emerging dissent 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 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 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 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 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