The judiciary & military
IS there a connection between the Supreme Court’s recent order against the prime minister in the rental power case and Maulana Tahirul Qadri’s long march? Is the “new anti-democratic establishment” now allegedly composed of the military, judiciary and certain sections of the media? These are conspiracy theories, which have been floating around for quite some time.
As conspiracy theories without substantial evidence, they can be rejected. But they do raise the more general, and key, question as to what exactly is the relationship in Pakistan between the judiciary and military, or between the judiciary and democracy.
Like life, the relationship between the judiciary and military, or between the judiciary and democracy, is complicated, continuously developing, a long-term process and subject to change.
Further clarification is required. The power of the military establishment needs to be brought under three separate categories — the capacity to overthrow elected governments and impose direct military rule, the power to interfere in political and policy decisions of political governments, and socio-economic interests and influence. The current judiciary’s relationship to each of these power categories is different.
Let us examine each power category separately.
a) Direct military takeovers or rule: Any future direct military takeover, or rule, will be rigorously resisted by the overwhelming majority of the superior judiciary for the following reasons. Firstly, Supreme Court judgments against past military rule themselves hold no guarantees for the future. For example, in 1972, the Supreme Court in the Asma Jilani case, had declared martial law as unconstitutional and incapable of being validated. But within five years, the Supreme Court validated Ziaul Haq’s martial law in 1977.
However, something distinctive happened between 2007 to 2009. The judges did not merely give a judgment in the Sindh High Court Bar Association case in 2009 against Musharraf’s martial law of 2007; more importantly, the superior court judges were part of the political struggle against Musharraf’s rule and they won this battle. This political struggle has now become the institutional and psychological history of the judiciary, which will be difficult to ignore by the current, or future, judges.
Secondly, judicial dissent against military rule is on the rise. For example, the Supreme Court declared martial law unconstitutional in 1972, 16 judges refused to take oath under martial law in 1981 and 13 judges in 1999, the Supreme Court in 1999 in the Zafar Ali Shah case limited Musharraf’s military rule to only three years, 43 judges refused to take oath under martial law in 2007, an unprecedented lawyers/judicial movement between March 9, 2007 and March 16, 2009 led to the restoration of the chief justice and other judges. This is a trend and judges in the future will draw strength from this judicial dissent.
Thirdly, the present judiciary’s real power is also based on public legitimacy, especially constituencies like the media, lawyers, political workers which are generally opposed to martial law. It is the judiciary’s perception that any future support of martial law will lead to a loss of public legitimacy and of its key constituencies.
Fourthly, this Supreme Court, especially the chief justice, is conscious of the support of the global legal community as the latter played an important role in the lawyers movement. The global community will condemn any future military rule.
Fourthly, the democratic period between 2009 to 2013 has seen the greatest growth in judicial power in Pakistani judicial history. Any support of military rule will destroy this judicial power as in military rule, it is the military which is supreme.
b) Military interference/dominance in political and policy matters in political governments: At the moment, there is no general trend in the judiciary to restrict the military’s interference/dominance in political and policy (especially foreign, defence and internal security policy) decisions of political governments.
The judicial response varies from case to case. For example, in the Balochistan suo motu case and the missing persons cases, the Supreme Court has condemned and checked some of the unconstitutionalities of the military and intelligence establishment. The reason for this might be that there was public support for the Supreme Court on these issues. But in the Hussain Haqqani memo case, the Supreme Court agreed with the contentions of the military establishment against the political government.
This is not because of some alleged conspiratorial alliance but in view of the commonalities of views of the judiciary and military on the issue. Second, the judiciary saw it as an opportunity to enhance its judicial power by adjudicating on an intra-state dispute. Third, the implied and tacit strategic congruence between the judiciary and military against the government or between the judiciary and government against the military, constitutes defence mechanisms in weak constitutional democracies. In weak democracies, institutions engage in various strategic games to safeguard themselves.
It is interesting to note that no serving top military officer has been successfully prosecuted either for the 2007 military coup or in the missing persons cases. Therefore, the most important reason for the judiciary’s cautious attitude towards the military establishment is simple — it is the prevalent fear that the military can counter and seriously damage any institution including the judiciary. Therefore, only the deepening of democratic constitutional rule and change in foreign policy can reduce this fear vis-à-vis the military.
c) Socioeconomic power of the army: In terms of its uncontested budget and corporate and land assets, the Pakistani military is unlike any normal military and is really a state within a state. Apart from Justice Jawwad S. Khawaja’s Makro-Habib judgment, in which the land lease of a military financial institution to a multinational company was struck down, there is hardly any judicial check on this socioeconomic military power.
The reason may be simple — the money, perks and privileges, to military-related institutions and individuals, have all been legitimised by the law. Therefore, for example, except in clear cases of corruption, it is difficult to check the unfair distribution of land to the military because there are laws legitimising such accumulations.
It was naïve to think that the recent lawyers/judicial movement would completely dismantle the military establishment’s power and convert it into a military acting under the constitution. The politicians have been trying to do so at least since 1958. The judiciary, with hiccups and compromises, has also been trying, at least since 1972. We now seem to be on the right constitutional road with a reasonably clear vision but we should never forget that there are “miles to go before we sleep”.
The writer is a lawyer.