Pakistan’s new Chief Justice Asif Saeed Khosa took charge on 18 January from his controversial, much maligned predecessor Justice Mian Saqib Nisar. The twilight of Nisar’s career was tarnished by what appeared to be a belatedly discovered zeal for judicial activism and weakening of civilian supremacy in the country. Justice Khosa, therefore, inherited a judiciary that was perceived by large sections of the Pakistani public as having been aligned with the military establishment in its push to oust the increasingly intractable Nawaz Sharif from the post of Prime Minister and decimate his Pakistan Muslim League – Nawaz (PML-N) party.
Justice Khosa was awake to the challenges that awaited him, as he clearly let be known at his swearing in ceremony when he said, "I am conscious that the issues being faced by the justice sector are gigantic but I may assure you that no stone shall be left unturned in attending to such issues and in trying to improve the situation". If his first fortnight in the saddle is any indication, Justice Khosa, who had earned a Master’s degree in English Literature prior to travelling down the legal path, and who has authored books with revealing titles such as ‘Heeding the Constitution’, ‘Judging with Passion’ and ‘Breaking New Ground’, appears to be making his mark. The decisions that have emanated from the apex court in these two weeks, especially the judgment of 6 February that tore into the illegalities and excesses of the military establishment, have heralded a refreshingly fragrant attitude to democratically inclined Pakistanis.
The positive vibes that the change at the helm of Pakistan’s judicial architecture has exuded also appears to have emboldened two of Pakistan’s largest political parties, the PML-N and the Pakistan Peoples Party (PPP), to oppose the extension of tenure of the military courts that were established in 2015 by the Pakistani Army to try civilians charged with terrorism. These courts reflect a bizarre overreach by the military establishment not only into the constitutionally mandated sphere of the judiciary, but also into politics, and have resulted in rushed, motivated verdicts reminiscent of those handed out by kangaroo courts in disregard of the principles of law and human rights. During Nisar’s term they also provided a convenient overlap for the military and the judiciary, which were seen as incessantly linking arms to meddle in politics and appropriate the de facto title of king-makers.
The 6 February verdict into the anti-blasphemy protests organized by Islamist parties Tehreek-i-Labbaik Pakistan Ya Rasool Allah (TLP) and Sunni Tehreek (ST) in November 2017, in which seven people were killed and over 200 injured, and which brought the capital Islamabad to a grinding halt, also delved into the role of the Pakistani security agencies during the protests. As had been brought out in EFSAS Commentary of 11-05-2018, the role of the military establishment became embarrassingly stark when a footage of a senior Inter-Services Intelligence (ISI) officer giving cash to the protesters soon after the protests ended went viral on social media. The establishment had all along been at odds with the civilian government over handling of the protests, which came at a time when the cracks in the civil-military relationship had already begun creaking noisily. In their verdict, Supreme Court Justices Mushir Alam and Qazi Faez Isa gave vent to their indignation at the unrestrained impunity that the military establishment enjoyed. They wrote, “The involvement of ISI and of the members of the Armed Forces in politics, media and other ‘unlawful activities’ should have stopped. Instead when (protest) participants received cash handouts from men in uniform, the perception of their involvement gained traction”.
The verdict addressed the extra-constitutional political role that the military establishment has repeatedly arrogated to itself. In the context of the general elections held last year in which the establishment was widely believed to have batted for Prime Minister Imran Khan, it observed, “The Constitution emphatically prohibits members of the Armed Forces from engaging in any kind of political activity, which includes supporting a political party, faction or individual. The government of Pakistan through the ministry of defence and the respective Chiefs of the Army, the Navy and the Air Force are directed to initiate action against the personnel under their command who are found to have violated their oath”.
The verdict also fulminated against the flagrant violation of human rights and the illegal curbs unconstitutionally placed by the establishment on the media, and directed that “All intelligence agencies, including ISI, Intelligence Bureau (IB) and Military Intelligence (MI), and the Inter-Services Public Relations (ISPR) must not exceed their respective mandates. They cannot curtail the freedom of speech and expression and do not have the authority to interfere with broadcasts and publications, in the management of broadcasters/publishers and in the distribution of newspapers. To best ensure transparency and the rule of law it would be appropriate to enact laws which clearly stipulate the respective mandates of the intelligence agencies”.
Not much of what the Supreme Court has formally said about the military establishment in its verdict is new or unknown. EFSAS itself has dwelt upon the aspects underlined in the verdict in its Commentaries and Study Papers. However, what makes the verdict a landmark one is the attestation by none other than the highest court of Pakistan of the military establishment’s recurrent forays into the realms of illegality and excesses. This can only be described as a severely damning indictment, one that appends yet another thick layer of credence to what the democratic world has already been asserting about the Pakistani establishment’s vice-like grip over the country’s government and its role in promoting violence and mayhem in its immediate neighbourhood and well beyond.
Only recently, at a Congressional hearing on 5 February General Joseph Votel, Commander of the US Central Command, asserted that terrorists operating out of Pakistan continued to threaten Afghan stability on the one hand and stoke tensions between India and Pakistan on the other. He told members of the Senate Armed Services Committee that "We look to regional actors such as Pakistan to cease behaviour undermining regional stability and play a constructive role in achieving peace in Afghanistan as well as the whole of South Asia”. Stressing that Pakistan has not taken concrete action against the safe havens enjoyed by violent extremist organizations on its territory, he lamented that “Pakistan's actions are often a source of frustration to the US regional efforts in Afghanistan". Interestingly, his criticism comes at a time when the US is in the thick of Pakistan-facilitated talks with the Taliban. In the context of the talks, General Votel underlined that Pakistan "has avoided taking any concrete or irreversible steps such as arresting or expelling Taliban leaders who do not cooperate with reconciliation efforts”.
The ongoing talks also did not stand in the path of Director of National Intelligence Dan Coats’ even more incisive observations on the rancidity of the pie that the Pakistani establishment had its digits deeply embedded in. He told the members of the Senate Select Committee on Intelligence last week that "Militant groups supported by Pakistan will continue to take advantage of their safe haven in Pakistan to plan and conduct attacks in India and Afghanistan, including against US interests", adding that Pakistan's "narrow approach to counterterrorism cooperation – using some groups as policy tools and confronting only the militant groups that directly threaten Pakistan – almost certainly will frustrate US counterterrorism efforts”.
The acerbic criticism of the aims, intentions and methods of the military establishment leveled in the verdict of the Supreme Court of Pakistan is aptly put into perspective in the backdrop of the statements made in the US Congress. What is not readily discernible, though, is the courage displayed by the Supreme Court, and more specifically its new Chief Justice and the two judges that constituted the bench that delivered the verdict. As earlier Pakistani Prime Ministers and Judges who have fallen victim would attest, even the vengeance of the military establishment can be boundless in its illegality and excessiveness.
The Supreme Court can also be commended for taking cognizance of the plight of the media in Pakistan, and for directing the military establishment to stop using its strong-arm tactics to beat the media into submission. Not only is this laudable, it also has serious ramifications for the direction that the country will take moving forward. As distant as such a possibility may appear at the moment, any prospect of a truly democratic rule-based order emerging in Pakistan eventually rests with the people of Pakistan and in their convictions, and not on what is said in the Congress of a distant country. A free media would contribute valuably towards building the correct convictions.
The Supreme Court has delivered its verdict. The irony is that there appears to be nobody in Pakistan strong or capable enough to implement it.
The one thing that is certain is that the military establishment will not.