Many columnists, including myself, have spilled much ink critiquing the work of Pakistan’s Supreme Court, but one should pause to appreciate the actions of the justices in recent days. The Supreme Court has displayed a capability and willingness to hold the military accountable for its illegal actions unlike any other time in Pakistan’s history. By taking notice of the Mehrangate and Adiala Prisoners cases, the Court has shown true courage. But the justices will need to use these cases to escalate their pressure on the military if they wish to reform the behavior of an institution unaccustomed to the rule of law.

The historical relationship between Pakistan’s judiciary and the military has been one of master and servant. Though there are some examples of justices like A.R. Cornelius who stood for democratic principles, the Court has generally capitulated to the military due to its own lack of power. From the execution of Zulifqar Ali Bhutto to the creation of the doctrine of necessity, the Court was often manipulated and bullied into making legal what was illegal, whenever the military was calling the shots.

However, the balance of power has certainly shifted in Pakistan. This is partly due to the work of the Lawyers Movement, composed of lawyers and judges who withstood arrest and torture in order to rid Pakistan of its dictator, military-general Pervez Musharraf. The Court has stated in many recent opinions that they have a mandate from the people of Pakistan, who supported them in their fight against the nation’s military. The “mandate from the people” principle shows that, unlike anytime in the Court’s history, they feel empowered enough to hold the military liable for some of its illegal acts.

In that vein, Justice Saqib Nasir led a commission to investigate the murder of a journalist rumored to have been killed by the intelligence agencies. Saleem Shahzad wrote stories that alleged extremist infiltration in the ranks of the Army, which is why he was kidnapped, tortured, and dumped, following the modus operandi of the intelligence agencies. However, due to a lack of evidence, the Commission held that “various belligerents in the war on terror which included the Pakistani state and non-state actors such as the Taliban” could be responsible for his death.

According to this judgment, it seems that the Court is unwilling to “seal the deal” on prosecuting the nation’s military personnel for their outright illegal kidnappings and torture. However, the Commission did recommend:

That all the (Intelligence) Agencies be made more accountable at three levels:  within the Agency and before the Minister-in-Charge, i.e. through internal administrative review; through a 141 Parliamentary Committee responsible for oversight over their affairs; and through a suitably tailored judicial forum for redressal of grievances against them.

The Supreme Court seems to be slowly ratcheting up pressure on the military by taking notice of the Saleem Shahzad murder, which is rare in a country where dozens of journalists have been tortured or killed by the establishment during its short history. This escalation has manifested in the Court’s aggressive stance towards the intelligence agencies in the Adialia prisoner’s case. This case concerned suspects who were acquitted by the Anti-Terrorism Court for their involvement in an attack on the Army’s Hamza Camp. After their acquittal, they were detained by the nation’s intelligence agency indefinitely; after being subject to torture, four of the suspects died in custody, while the others are barely surviving.

During a hearing for the case, the Chief Justice made bold statements in front of the military counsel, which were unfathomable at any other time in the Court’s history. The Chief Justice stated that the intelligence agencies were the “biggest violators” of law and order in the nation, asking “who gave you the right to hound people?” He exclaimed, “there is a hue and cry throughout the country that you abduct people and after some days, their abandoned bodies surface.” The Chief Justice went onto state that if the suspects “had attacked GHQ (the Army’s headquarters), even then it is necessary for you to produce evidence against them for fair trial.”

The timeline of this trial against the military could be very long if the Mehrangate is any precedence. The Mehrangate controversy goes back to the early 1990s, where the president of Mehran Bank distributed money for the ISI. The ISI used this money to bribe political opponents of the PPP and encourage them to destabilise the civilian government. This case was originally brought by Asghar Khan, a retired Air Marshall, in 1996, but it collected dust until recently, when the Supreme Court took notice of it again.

The Court has ordered that sealed records be reopened to allow an examination of the evidence collected against the ISI, including the affidavits of Asad Durrani, former director-general of the ISI. In the affidavits before the Court, both the Army Chief and ISI chief admitted to their guilt in sabotaging the ruling civilian government at the time, but no action was taken to hold them criminally liable. Though this new judicial hearing will not likely levy criminal punishment on these former generals, it has threatened to expose the Army’s pattern practice of political sabotage.

Through the Mehrangate and Adiala Prisoners case, the Court has asserted that the military is subservient to the nation’s courts and Parliament. They are not permitted to act as saboteurs to the elected will of the people, nor are they permitted to violate citizens’ constitutional right to fair trial by disappearing and killing civilians. The Court will need to take one step further than the Saleem Shahzad Comission, which stopped short by passing an advisory recommendation to the government rather than taking an actual case before the Court and creating precedence.

However, the Supreme Court cannot be the only institution acting to check the illegal actions of the military. Though, the recommendations of the Saleem Shahzad Commission have been seen as too weak by some, they pose a solution that respects the separation of powers in Pakistan.

The Court can check the military more effectively if the Parliament passes laws banning military-sponsored torture/killing or political manipulation. Without a two pronged attack, the military will continue to violate the principles of Pakistan’s constitutional democracy, which will, in turn challenge the future of all institutions, including the Supreme Court and Parliament.

The writer holds a Juris Doctorate in the US and is a researcher on comparative law and international law issues.

The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.