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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)
Col RN Ghosh Dastidar is a Post Graduate from Madras University in Defence and Strategic Studies. He is a retired Mechanised Infantry Officer, with a vast and varied experience in the Indian Army of 38 years. He is a keen follower of Geo Strategic events around the Globe and a freelance journalist, in this field.
