As the year 2019 comes to a close, the Pakistan Military, the nation’s Deep State and often the hidden face of its power, both inside and outside Pakistan, finds itself in a rather unusual situation.
The year has seen a series of judicial judgements going against it. Since the rule of General Musharraf as a military dictator, Pakistan’s Supreme Court has been in the forefront in upholding the tenets of Democracy to an extent and preventing the nation from sliding into chaos and to become a failed nation. Musharraf went to the extent of sacking the Chief Justice of Supreme Court but the nation rallied behind and ultimately it was Musharraf, who despite the protection of the Armed Forces, had to flee the nation.
Landmark Judgements
In February 2019, the Supreme Court, in a landmark judgement not only chastised the nation’s military but also held it responsible for its involvement in subverting the politics and media of the nation. In October 2019, the provisional High Court of Khyber Pakhtunkhwa turned down a controversial law that granted sweeping powers to Pakistan’s military. November 2019 witnessed the extension of service of the Army Chief, which went down to the wire.
The latest in this was on 17th December when a Special Court in Islamabad trying General Musharraf, in absentia, over the suspension of Constitution in 2007, when he imposed emergency, sentenced the erstwhile President to death for ‘Treason against State’, with a 2-1 verdict. He was convicted under Article 6 of Pakistan’s Constitution which defines abrogation, subversion, suspension or holding in abeyance the constitution as High Treason.
Forced Disappearances
In 2008, the Pakistan military commenced large scale operations in Khyber Pakhtunkhwa and Balochistan, namely in the Federally Administered Tribal Areas (FATA) and Provisionally Administered Tribal Areas (PATA). It aimed to wrest back control of the area from local Taliban groups which had mushroomed into Tehreek-e Taliban (TTP), allied to Afghan Taliban, Al Qaeda and the Islamic Movement of Uzbekistan. It was a security threat to Pakistan, since the fall of the Taliban in Afghanistan in 2001.
Pakistan’s military acted under the nation’s ‘Actions in Aid of Civil Power Ordinance’. It did reverse the situation but created several cases of Human Rights violation as its actions resulted in ‘forced disappearances’ of over 9000 people, which included members of political parties of that region, separatists, human rights activists and media personnel. Most were detained by the security forces for being engaged in ‘anti-state’ activities but their cases were rarely tried in courts. Many just went missing.
Since the commencement of military operations in this region, Human Rights campaigners have severely criticised its Actions in Aid of Civil Power, in this region. The issue of ‘forced disturbances’ has since then become a very serious emotive issue in Pakistan. The military, on its part, has denied all charges.
On 17 October 2017, the Peshawar High Court scrapped the Ordinance. It stated that the Actions in Aid of Civil Power infringed on the constitutional rights of the FATA and PATA residents and ordered the provincial police to take over detention centres run by the armed forces. The court acknowledged that the military can be called on to support civilian authorities but noted that ‘Actions in Aid of Civil Power Ordinance’ clearly portrayed violation of human rights enshrined in the Constitution. It observed that the citizens of Pakistan can be under no circumstances be put to the mercy of the armed forces for an indefinite period, or investigation, persecution, or trial.
The Supreme Court on 25 October 2019 suspended the Peshawar High Court order, thereby preventing the release of the detainees. However, it stated that the matter was of ‘national importance’ and that the ‘Constitutional Right’ of each citizen will be safeguarded. The Court directed the Government to give details of each detainee and the reasons for their detention without trial so far.
Expressing grief over their prolonged detention in inhuman conditions and the inability of their relatives to meet them, the Court said that the nation had no answer to give to the loved ones of the missing persons, who have been doing the rounds of the Courts in search of their loved ones, for years. It ordered that all relatives will be allowed to meet the detainees within a week. The case has been sent to a larger bench.
The Case that went down to the Wire
In August 2019, Imran’s government approved a three-year extension to the present Army Chief General Qamar Javed Bajwa. After a three day hearing, on 28 November 2018, the day the present Army Chief was set to retire, his extension for three years was cancelled by Supreme Court and an extension of six months granted. Though the petitioner challenging the extension withdrew the petition yet the Supreme Court took it up as it fell in the domain of public interest under Article 184 (3) of Pakistan’s Constitution and ruled against the extension. The Court stated that there was no legal basis for the extension proposed by the Government in the Constitution and in Army Rules and nothing specified ‘three years’.
It appears that the government, in gratitude for being supported by the military into power, had thought that Pakistan’s Supreme Court too will be in awe of the Military and grant extension. Earlier Governments too had granted extensions. Extensions of General Ayub Khan, General Yahya Khan, General Tikka Khan, General Mohd Zia Ul Haq, General Musharraf, General Kayani, in history are a case in point. Some held the post as Military Dictators of Pakistan.
The Supreme Court judgement was very significant to nurture democracy in Pakistan. In a rather terse order, the court directed the Government to bring in a legislation for appointment of a new chief within six months under Article 243 of the Constitution and sought an undertaking that it would do so. Regarding Article 243, it stated that ‘Article 243 of the Constitution clearly mandates that the Federal Government shall have control and command of the Armed Forces and the supreme command of the Armed Forces shall vest in the President.’
In its verdict, the Court raised many important points but it amplified the need for legislation stating in its written verdict that the COAS was responsible for the command, discipline, training, administration, organization and preparedness for war of the Army and is the Chief Executive in General Headquarters and that while exercising judicial restraint, it finds it appropriate to leave the matter to the Parliament and the Federal Government to clearly specify the terms and conditions of service of the COAS through an Act of Parliament and to clarify the scope of Article 243 of the Constitution in this regard.
It further stated that this future law may go a long way in rectifying multiple historical wrongs and in asserting the sovereign authority of the chosen representatives of the people, besides making the exercise of the judicial power of the Courts all-pervasive.
Unprecedented Challenge to Pakistan Military’s Monopoly
Though some of the decisions of Lower Courts are under review and many are likely to be appealed, the Courts of Pakistan seem to have taken it on themselves to ensure that the principles enshrined in its Constitution are not violated, and its citizens and democracy is protected. Possibly they have taken it upon themselves to make Pakistan realise the dreams of the Quaid-e Azam, taking the cue from the success stories of democracies in its South Asian neighbourhood.
On December 16, in a detailed verdict on a new tenure for General Bajwa, the Supreme Court questioned the unbridled powers of the Army Chief stating that in the historical context of Pakistan, the Chief holds a powerful position in ways, more than one. The Court further remarked that unbridled power position was like unstructured discretion, which is defined as being ‘dangerous’. The Court quoted the advice of England’s 17th century Chief Justice to King James 1 ‘however high you may be; the Law is above you’.
Since its inception, four Army Generals have usurped power and given Pakistan 33 years of military rule, since General Ayub took over powers in 1958. Democratic pauses in between have not been able to redeem the havoc wrecked by the military dictators on the nation. Many elected representatives who have tried to control the military have seen the termination of their tenures, arrests, assassinations, hangings and exile.
The Pakistan military, finding itself on the back foot for most of 2019, couldn’t just stomach the death penalty of its erstwhile Chief, General Musharraf. It didn’t hold back but retaliated stating that the Court decision had been received by all ranks of the Pakistan Armed Forces with ‘ a lot of pain and anguish’ and that ‘due legal process seems to have been ignored’. As per it, Musharraf cannot be termed a traitor as he had served the nation for over forty years in its Army and fought wars for the defence of Pakistan.
In Conclusion
The Judiciary-Military tension may not last but it has forced Pakistan to think about the military from the perspective of a free nation having a democratically elected government with its Constitution as its supreme authority and not it’s military. It has also made Pakistan realise that democratically elected governments which are subservient to the military are its biggest bane. In its series of judgements, the judiciary has sought to strengthen the hands of the elected representatives of the people and shown them the path to make the Pakistan military accountable to the people of Pakistan.
The Pakistan judiciary which has in the past upheld intervention by military rulers in taking over reins from democratically elected governments by using the Doctrine of Necessity clause seems to have redeemed itself, in its quest to strengthen Pakistan.
India has been closely following the events of 2019 in Pakistan and all Indians sincerely hope that that the politicians in Pakistan and those in its administration understand the transformation of the military is subservient to its Constitution and the will of its people and that these decisions will embolden them to strengthen the various democratic institutions and pillars of their Constitution.
Pakistan’s military must do some brainstorming on the issue of its constitutionally mandated role.
2020 is a make or break year for Pakistan to strengthen its democracy on the bulwark of its foundations rather than security being its sole and central objective. It will then only launch itself on the path of redemption of its impoverished human resources.
It has brought hopes to entire South Asia which is ravaged not only by over population, illiteracy, unemployment, hunger, disease, natural calamities, devastating wars but also the scourge of terrorism, the fountainhead of which lies in the corridors of Pakistan Military Headquarters and its infamous ISI’s offices. A strong democracy in Pakistan will definitely have the world heave a sigh of relief.
Let’s hope 2020 will herald a new ‘dawn’ for Pakistan!
Col RN Ghosh Dastidar (Retd)
(Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of BharatShakti.in)
12 Comments
Col Manobendra Roy
Good read…well researched and analysis of all aspects particularly the Judiciary-Military tussle…Imran in any case is a puppet…desrves no further emphasis on his status…
Always been difficult to predict any positive changes in Pakistan…negative predictions always easy though…
We need a stable democracy to return in Pakistan…which the author is fervently hoping come 2020…and so is the rest of us in India…
Vinod Kumar Sharma
A well researched article covering the role of judiciary in upholding the civil rights and keeping a check on the unbridled powers of the Pak Armed Forces. It also showcase the prevailing political situation in the country and increasing intervention by the Pak military. A must read article for for all military leaders interested in the happenings in our hostile neighbour.
Subhash Ghildiyal
Pak by default b’cos of its geographical location will continue to have military playing a major role . Karachi , Lahore , Islamabad Rawalpindi aside the country is wild with lack of development , lack of infrastructure . It’s western regions are tribal and not mainstreamed . The army will have to learn going piggyback on pliable leaders like Imran Khan to avoid judicial scrutiny. The country is in the grip of Wahhabism and army role cannot b delegitimised . Pak as of today with Baluch seeking secession & FATA not amicable withPunjabi pak army will not survive without it’s military . The military will keep a low profile but the ignition key will remain in their hands .
Brig Ashit Kumar Biswas, Veteran
Yes, Year 2020 could be or rather should be the watershed year for Military to be a democratic institution of Pakistan democracy. The judiciary has definitely provided adequate platform to the legislature to rein in the Military to function within the walls of constitutional norms. But the mute question is whether Imran Khan Govt which has come to the power on the props of the Army can bring in or even has the will power to bring in sufficiently strong legislation without any loopholes to really curb the unfettered power of Army. The Army on it’s part who has tasted the blood of military dictatorship since 1958 is really going to turn Vegan so easily and without giving any fight. Well, time will only tell.
A very well written article. Brings about in a very logical and chronological manner the state of affairs Pakistan is in today and the tussle between judiciary and military going on for quite sometime. A must read for all Indians as anything happening in Pakistan and that too if it has the potential to bring in any fundamental change in its governance is of great importance to India.
Abhishek
Thank you for writing the article, through reading this it has become clear justice eventually prevails… At the core citizens of both nations share the same value system and similar vices. We are both quick to praise or loathe, and rulers (external or internal) have benefitted from these shortcomings as we are easy to divide basis religion/caste and hence rule.
This ignites hope that all is not lost to “aam aadmi”.
Air Cmdre HP Singh
Dear Colonel,
An excellent and penetrative analysis of the Pakistan’s highest court’s rulings and their likely impact on the military’s role vis-a-vis democratically elected (if at all it can be legitimately called so) Civilian government and their likely impact on the immediate neighbourhood, specially our country. Wish things turn out to be as analysed, anticipated and predicted by you!
Genuine fears, however, exist whether the Pakistan judiciary will be successful in establishing the constitutional superiority in the country, specially when ‘military selected ‘ P.M. holds the reigns of civil powers in that country at present and willingly dances to their tunes. What happens, if Militarily again takes control, suspending the Constitution,which has happened almost as a routine when democratically elected governments and judiciary pose a danger to Military supremacy in that country?
Col Manobendra
Good read…well researched and analysis of all aspects particularly the Judiciary-Military tussle…Imran in any case is a puppet…desrves no further emphasis on his status…
Always been difficult to predict any positive changes in Pakistan…negative predictions always easy though…
We need a stable democracy to return in Pakistan…which the author is fervently hoping come 2020…and so is the rest of us in India…
C M BOPANNA
Beautifully articulated sir. But it still seems a far cry from desired political end state in Pakistan. The deep state will eventually find it’s dark ways to resurrect like a hydra. The military and its intelligence agencies have ensured no truly democratic process comes in to being, lest its authority be challenged and eventually made irrelevant. Unlike India, where the military was, is and will remain an instrument of state policy, Pakistani establishment will find a way to be above the constitution and remain a law unto itself.
As far as the current despensation against Musharraf is concerned, there is a lobby which wants mohhajirs out. Else why would the response be so meek? Uncharacteristic! While the recent judicial activism acts as a beacon of hope, how it helps retrieve Pakistan from being deemed as a failed state and its transformation into a progressive Islamic democracy is something most political pundits and strategic analysts fail to aver. Simply because there are no historical references to fall back to. Will the military give up its political authority? No.
Can any civilian government in Pakistan downgrade the status its Army leadership enjoys in parliament ? No, not in the foreseeable future. Will the military junta along with it’s all powerful ISI bow to long term national interest? Unlikely.
It will be therefore interesting to see how 2020 unfolds in the region. It is no more a secret that US no more holds sway over political decisions in the sub continent. In the Indo Pak context, not at all! In a way we see Dragonfire unfolding in a very different way. And in the Pakistan- China equation, military is more important than the civilian government. Further, when we look at the Indian context in this equation, Pakistan with strong military is in their interest. In the overall gambit, China has already played its move, pawn to king3 !
Ramesh
Pakistan is not a true Democracy. It’s heartening to see the judiciary emphasising its powers . This may just save the country becoming a failed state . Yes the Pakistan judiciary has sent out a message to the rest of Asia . Well researched article . Clear and precise.
Samarth
Hope 2020, brings prosperity and peace to a nation riddled with internal problems.
The judiciary, legislature and military in Pakistan’s case have to work in sync,with the interest of Pakistan in Mind…How long can it depend on Its Military in Today’s diplomatic and fast growing World.
Rightly qouted”Law is Above all”.
Kapil Dev
The Article by Col Dastidar encapsulates the dilemma faced by Pakistan along with historical perspective in a very concise and lucid manner. The facade of power in the hands of a civil democratically elected Government of Pakistan doesn’t stand minutest of scrutiny. It is well reflected by the extension of tenure of the current army Chief by as much as three years; a clear case of arm twisting by Bajwa. The well received decision of the Supreme Court of Pakistan to put a stay on the Govt’s decision does provide the Civil Government some leeway in flexing muscle. However, this decision must be seen in the light of tacit collusion of a number of Corps Commanders who were against such an extension.
The Civilian Government is already moving forward to amend the necessary provisions to put a stamp of legality on its previous decision. The hope that democracy may flourish in its true sense under the watchful eyes of Supreme Court is neither supported by the empirical evidence nor by any action of the current spineless Government.
Shonalee
Am glad to read this article, so beautifully articulated. Hope that the start of this decade, brings out the best.