View From The Neighbourhood: Judiciary and army
The Indian Express
July 02, 2019
Akash Joshi
The June 30 editorial in Dawn takes umbrage at Pakistan Army Chief General Qamar Bajwa’s remarks about the economic (mis)management of the country by previous civilian governments and his endorsement of the PTI government led by Imran Khan.
While much of the conversation in and about Pakistan’s curious de facto state structure has centred around the relationship between the civilian government and the army — whether through coups or “remote controlling” the government — there is little discussion about the relationship of the Pakistan “deep state” and the country’s judiciary. An article by Faisal Siddiqui in Dawn asks whether there are now the beginnings of “judicial-military” conflict in Pakistan. Siddiqui writes: “The judicial side of this civil-military conflict has either been denied by contending that the judiciary has been the alleged ‘B team’ of the military or, if acknowledged, the judicial-military conflict has been perceived more as an aberration and less as an emerging trend. But is the judicial-military conflict an emerging trend? And are there any ways to mitigate this conflict?”
Till 1971, argues Siddiqui, Pakistan had a “colonial minded but independent” judiciary. With bouts of military rule, the structural conflict between the army and judiciary came to the fore: “On one side, protection of democracy and a democratic constitution guaranteed the tremendous power of the judiciary; on the other, the de facto power of the military elite was fundamentally threatened by both democracy and democratic constitutionalism.”
With the “judicial murder” of Zulfikar Ali Bhutto and the Islamic-military dictatorship of Zia-ul Haq, collusion between the judiciary and military became the norm. But since the “judicial movement” of 2007-2009, this has been changing. And lately, it seems the bench is standing up again: “The Faizabad dharna judgement dated Feb 6, 2019, authored by Justice Isa, contains a summary of what he thinks is wrong in Pakistan — violation of citizens’ fundamental rights, illegal tactics used to achieve political agendas, lack of security mechanisms to protect citizens, violation of their constitutional role by the military and intelligence agencies, violation of media independence and inaction of Pemra, the weak role of the Election Commission and the misuse of Islam.”
The judiciary, with Justice Khosa, has been arguing for a “dialogic approach” with the military. And this could bode well for Pakistan because “the underlying purpose of this inter-institutional dialogue is to bolster constitutionalism and the rule of law, strengthen democracy and create conditions for inter-institutional working towards the real issues of the citizens of this great country”.
While such an approach may not make sense to those from countries where the independence of the judiciary is taken for granted, it is rooted in Pakistan’s case in “legal realism, which realises the destructiveness of an all-out institutional conflict between different state organs as well as the need for dialogue in order to ensure judicial independence, constitutional democracy, human rights and effective state authority.”
The June 30 editorial in Dawn takes umbrage at Pakistan Army Chief General Qamar Bajwa’s remarks about the economic (mis)management of the country by previous civilian governments and his endorsement of the PTI government led by Imran Khan.
In a subtly-worded, but unmistakable indictment, the editorial first gives credit to the armed forces for dealing with extremist violence since the horrific Peshawar attack, and securing in the last few years a “relative peace”. But “nevertheless, recent terrorist incidents point to the tenuous nature of those gains”. It adds: “The military leadership should not allow itself to be sidetracked from its core responsibilities — which include keeping the eastern and western borders secure — and instead apply its energies to its area of expertise. Maintaining the separation of powers as defined in the Constitution strengthens institutions and, in turn, the overarching governance framework. However, by endorsing the PTI government’s actions, the army chief is expressing an overt political opinion.”
By appearing to be politically biased, Bajwa has diminished the military, which must be seen as above the political fray. Second, the armed forces play an important role in the conduct of elections in Pakistan, and as such much appear and be impartial.
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