Battle between army and judiciary in Pakistan The Statesman 24 Dec 19
https://epaper.thestatesman.com/2478151/Bhubaneswar-The-Statesman/24TH-DECEMBER-2019#page/7/2
Battle between army and judiciary in Pakistan 24 Dec 19
Two recent judgements in Pakistan have led to speculations. The first is the supreme court judgement which has placed the extension of the Pak army chief in the hands of the senate and the second has been the death sentence awarded to Musharraf. While the army was silent on the first, it responded strongly against the second, conveying its displeasure.
It is likely that the Pakistan senate would not hesitate to grant the desired extension under pressure from the army and the judgement would be just a scrap of paper a few months down the line. This is because despite everything, the army holds the power to make any politician toe its line. However, the fact that it questioned what has always been accepted as the normal is itself a new for Pakistan. It opened fissures within the Pak military establishment between Bajwa and those who missed the boat.
In the case of Musharraf, the judgement would most likely be discarded and set aside by higher courts under pressure of the army and the current government, but it sets a precedence against future coups. The judges disregarded all attempts to stop them from delivering the judgement. The criticism even involved the Chief Justice who went on record to claim that rumours linking him to the judgement were wrong.
Imran, as a politician, during the time of the coup, was asked by a news reporter on television on what were his views. He then termed Musharraf’s action as treason. Now being the selected PM, he would be compelled to fight the case on behalf of the selectors. His government has claimed it would challenge the decision in higher courts.
What do these two judgements convey on the changing scenario within Pak? There has been a view that these judgements have been faked knowing that they would never be implemented however simultaneously globally portray of an independent judiciary leading to a changing world view on Pak. The second is the judiciary seeking to regain its prominence. Finally, it is a battle for revenge by the judiciary against the army for its interference in judicial affairs.
The way all top opposition politicians have been placed behind bars, without even a trial, indicates the power of the deep state. Nawaz was removed, solely because he challenged military might. Thus, the world view was that the army controlled the judiciary. These two judgements could reverse the view.
The second is that the judiciary has begun silently re-exerting itself and forcing the army onto the backfoot. It has begun limiting army’s powers. However, in both judgements, it has left doors open for the judgement to be challenged and discarded. Yet, the fact that it questioned the army’s power is a message that it is attempting to change Pakistan for the better.
The wordings in the two judgements could convey the re-exerting of power of the judiciary. In the case of Bajwa, there were two comments. The first, ‘In our peculiar historical context, the COAS holds a powerful position in ways more than one. Unbridled power position, like unstructured discretion, is dangerous.’ The second, ‘Howsoever high you may be, the law is above you.’ In the case of Musharraf, the judgement stated that if he dies prior to execution of judgement then his body be hung publicly for 3 days. This could never have been stated against an army chief earlier.
Finally, it could be an attempt by the judiciary to counter the reference filed by the President at the behest of the army against one of its own, Justice Isa, in the Supreme Judicial Council. Hearing on the same is in progress.
It was Justice Isa who had in Feb implicated and reprimanded the army against manipulating politics, following the army’s support to the TLP protests of 2017. It was after this that the reference was filed. Fawad Chaudhry, Pakistan’s minister for science and technology, stated post Musharraf’s judgement, ‘It has nothing to do with the constitution or justice, but is a result of a tug of war between institutions.’
The judgement on Musharraf led to panic within the deep state. A statement supporting Musharraf was released, which defended him and criticised the judgement. The army openly displayed that it backed its own and would challenge institutions which threatened their power. Lawyers called for a strike on the official army statement criticizing the judgement. Battle lines are slowly being drawn.
Musharraf will not be brought to Pakistan hence execution of the sentence is an impossibility. Politicians and judges may be hanged but an army chief can never be, no matter what his crime. The judgement was issued to convey a message that Pakistan has suffered under army rule and its interference in politics, which would not be tolerated anymore. As stated by Zahid Hussain in an editorial in the Dawn Newspaper on 18 Dec, ‘The verdict sends a strong message to potential adventurists.’
Interestingly, Musharraf was tried for imposing a state of emergency and not for the coup. The reason was because the judiciary and the senate at that time had indemnified his coup. The judgement on Bajwa opens doors for a new debate on whether the extension needs a constitutional amendment or can be done by just changing the rules.
Another important petition presently being heard by the supreme court concerns powers granted to the army enabling them to detain suspects indefinitely without a trial while declaring them immune from enforced disappearances. This is applicable to Khyber Pakhtunkhwa and could impact the army’s power.
There is no doubt that both these judgements have tinkered the power which the Pak army held over the state. It could also be the start of a new power struggle where the army would seek to control who occupies the higher judiciary, while the judiciary would fight for its independence and dominance. While Imran may attempt to steer away from the fight, he would perforce be dragged in. How would it play out in the days ahead would determine Pakistan’s future?
About the Author
Maj Gen Harsha Kakkar
Retired Major General Indian Army