Last week’s decision by two senior judges of Pakistan’s Supreme Court in the case that the court had initiated suo motu in late 2017 is significant because of its sharp criticism of the role of the military and its intelligence agencies in the country’s politics. The case pertains to Tehreek Labaik Pakistan’s (TLP) protests in November 2017 that paralysed life in Islamabad and Rawalpindi. The director-general of Pakistan Rangers, an army general, was photographed distributing envelopes containing 1,000 rupee notes to the TLP protestors. Delivering their verdict on February 6, Justice Qazi Faez Isa and Justice Mushir Alam — who have a reputation of being far more principled than many other judges in the supreme court — criticised the military’s manipulation of Pakistan’s domestic politics.
The question, however, remains: Will the reprimand bring about any difference in the behaviour of the politically active — even arrogant — military? Three issues are worth devoting attention to in this respect. First, will this judgment help generate a consensus amongst the higher judiciary regarding its relationship with the armed forces? This is especially because the judiciary itself is divided on the extent it should interfere in the affairs of the military.
Pakistan’s judiciary is not at the peak of its credibility. Its reputation has been tarnished by the two populist chief justices, Iftikhar Muhammad Chaudhry and Mian Saqib Nisar. The governments of Nawaz Sharif and Pervez Musharraf appointed judges who were wanting in professional ethics or were known to have conservative right-wing values. Justice Faez Isa and a few others are exceptions who slipped through the system.
The renowned human rights activist (late) Asma Jahangir had raised suspicions about the financing of the lawyer’s movement that had pitchforked Chaudhry to prominence. The former chief justice was even known to have selected a judge of the Lahore High Court on the recommendation of the Jamaat-ud-Dawa (JuD) leader, Abdul Rehman Makki. Another conservative judge chosen by him, Justice Shaukat Siddiqui had, however, exposed the ISI’s interference in influencing decisions of the highest court. Chief Justice Saqib Nisar, on the other hand, had turned Pakistan’s highest court into a kangaroo court that interfered with governance to the extent that it became difficult to distinguish between judicial orders and legislative action.
Second, the court’s latest decision opens up possibilities for the government and the civil bureaucracy to assert themselves vis-a-vis the military. The government may, however, not be inclined to do so since the military is the major force behind Imran Khan and his Pakistan Tehreek-e-Insaf (PTI). There is a possibility of the government, or other forces, using the decision to generate some temporary chaos over extending the term of the current army chief — it’s known that he wants an extension. However, an overall strengthening of Khan’s hands does not seem to be a long-term possibility.
In the past, the Pakistan judiciary has given significant decisions that have gone against the military — the one in 2003 in Civil Appeal 30 of 1999, for instance. The case was about an army officer depriving a small farmer of three acres of land. Quoting extensively from John Steinbeck’s novel Grapes of Wrath, the supreme court judges reprimanded the state and military for hurting the rights of the poor farmer. However, the judgment has not set any legal precedent. Imran Khan may not be inspired to open up the military system to greater accountability and to explore how ordinary citizens are threatened or how the deep state creates fear amongst dissenters.
Third, there is little possibility of implementing the decision, unless there is greater accountability of the military’s actions. Though the Pakistan Army was involved in politics since the mid-1950s, it has been controlling the socio-political discourse much more extensively since 2013. The army and its intelligence agencies pick up people and torture them, interfere in media operations on an almost daily basis, advise private companies about giving advertisement to media houses, stop universities from employing people and put individuals on the exit-control list.
Recently, the director general of the army’s PR unit, Inter Services Public Relations (ISPR), threatened journalist Taha Siddiqui with a provocative tweet. Several ISPR-hired trolls then attacked Siddiqui and threatened him with dire consequences. Twitter finally removed the general’s tweet. In the past, journalist Saleem Shahzad was abducted and tortured to death by the military for flagging the links between segments of the navy and terrorists. Unfortunately, Shahzad’s case was not heard by a judge like Faez Isa.
Under these circumstances, the possibility of the military using the February 6 judgment to its advantage is high. For instance, an organisational decision to go quieter on social media — the one issued by the ISPR’s Director General in January, for instance — will be showcased as the military’s deference to the court’s orders. Unless
parliament legislates on greater accountability of the armed forces, the coercive actions of the men in uniform will only become less visible — much like that of the JuD. This is especially because Pakistan’s new chief justice is not inclined to take suo motu action.
Furthermore, the judgment will be presented as an example of the Pakistani judiciary’s independence. A case will therefore be made of not influencing the judiciary in other litigations, like those pertaining to the JuD and Hafiz Saeed. Even if there is a decision regarding Nawaz Sharif, the emphasis will be on the judiciary’s alleged independence rather than the merits of that particular court order. The era of populism has had an adverse effect on the behaviour of the bench — judges seem to be playing to the gallery.
Pakistan’s civil society must not be tricked by the way an otherwise excellent decision is presented to it; it should also not desist from using the verdict to its advantage. The verdict indeed gives it a foot in the door to contest for greater rights. After all, the concept of the state should not be limited to one institution. A nation is an evolving process that is defined by its citizens. The fact that this judgment upholds the right of legal and peaceful protest must be welcomed and used to people’s advantage.
The writer is a research associate at CISD, School of Oriental and African Studies, University of London.