Pakistan: The Doctrine of Necessity

Posted on 08/15/15
By Ikram Sehgal | Via ViewsWeek
(Image by Tori Rector, Creative Commons License)
(Image by Tori Rector, Creative Commons License)

The landmark Supreme Court (SC) judgment validating  Parliament’s enactment of laws authorizing trials of terrorists by military courts was widely hailed throughout Pakistan. Greeted with a sigh of relief, public opinion registered a massive surge of hope and aspiration. The SC ordered that the military courts adopt the basic principles and procedures of a fair trial for orders and sentences. Subject to judicial review by the superior courts, the legal position of their judgements will not be radically different from that the customs or tax tribunals are subject to.

 

In keeping with the overwhelming public opinion, the plurality SC judgement avoided direct conflict with the army, the government and a unanimous Parliament while explicitly addressing the fears that military courts could keep on enhancing their jurisdiction by observing that “trials of civilians by court martial are an exception and can never be the rule.” In his dissenting opinion, Justice Saqib Nisar quoted the US Supreme Court judgement in the “Marbury vs Madison case” which adroitly mixed judicial innovation with judicial pragmatism as “an act of high judicial statesmanship”.

 

 

The Mian Nawaz Sharif government deserves credit on two counts viz (1) taking cognizance of the deficiencies in our law enforcement and judicial system by bringing in military courts for a limited period within defined constitutional parameters to ensure the rule of law being taken to its logical and practical conclusion, and as such (2) heading off inevitable autocratic rule if the democratic dispensation from Parliament was not forthcoming, the patience of the khakis was wearing thin! Mian Nawaz Sharif personally deserves plaudits for listening to the sane voices in his Cabinet, over-riding the machismo of the “paper hawks” railing against giving the Army space to fulfill its constitutional responsibilities protecting the country from foes within and without.  Thank Heavens he has not repeated his Oct 1999 madness, at least not as yet!

 

 

Presently inconsistent, the application of the rule of law is at best a theoretical proposition “subject to the appearance of the moon”, smart lawyers exploit glaring loopholes in the Evidence Act (duly amended) already compounded by weak evidence gathering during police investigation, witness intimidation, indifferent prosecution by a corrupt and inefficient system and tainted adjudication thereof by a badly compromised lower judiciary, etc.  Why spend money on good lawyers when you can spend it more wisely corrupting judges?  Combine criminals in politics with governance and what do you get? Murderers will walk free as was happening openly in Karachi.

 

 

Not only will they walk free but some of them have got (and will get) to rule the nation. Prima facie caught red-handed for smuggling and money-laundering, fashion model Ayyan Ali, after four months of courtroom and media drama, is now portrayed as a victim by paid-off sections of our media rather than as a blatant criminal.  She could probably get away with murder like countless others have because of this exercise of criminal political influence cushioned by heavy bribes. Ayyan should keep her fingers crossed, any link between the money she was carrying and funding of terrorists would have her and her mentors facing prosecution before a military court.

 

 

Terrorism of any kind depends upon money sources, eliminating the source of such funds is crucial to eradicating terrorism. “Organized Crime” maintains bank accounts and carries out money-laundering in connivance with bank officials manipulating the banking system. These are used to purchase weapons, explosives, make identity documents, transportation costs, safe houses, numerous miscellaneous logistical requirements not excluding surveillance of potential targets, obtaining of information and bribing of local police officials, etc.

 

 

For the justice delivered by military courts to have credibility, the military must submit themselves to self-accountability.  “Dismissing” a major general, and giving “severe displeasure” to Lt Gen, General Raheel Sharif’s decision in the NLC Scam was spontaneously welcomed throughout Pakistan and applauded in the army.  Why did Kayani sit on this enquiry for over 3 years?   The vast real estate holdings and other assets of a few scoundrels are no secret, did they accumulate their enormous wealth commuting their pensions and “kitchen money” saved by their wives?  The nepotism and corruption of a handful of Musharraf generals has tainted the uniform, a crook is a crook whatever his rank.  General Raheel Sharif acted with great courage in putting the NLC scam behind us, a handful along with their kith and kin still require accountability, most notably (General Ashfaq Pervez) Kayani’s two very talented brothers. The disappointment is that notwithstanding the well-known rampant corruption associated with him, does one really expect the Army to prosecute him?

 

 

One hopes that the rumors of the Army resurrecting Musharraf politically with the support of the popular Mostafa Kamal are not true, it would be a catastrophe for the Army and the country to try and go back into the quicksand of the murky Musharraf past. One’s personal association notwithstanding, the author of the National Reconciliation Ordinance (NRO) is the major reason for this country being in the mess it is in today. To wipe the stain from the uniform our brave soldiers wear, and are frequently dying in, nepotism and corruption must be made examples of. Raheel cannot dishonour their “Shahadat” by allowing such scoundrels continue living a life of tax-free luxury. The sacrifice our brave soldiers have given allows us instead to reach for the future, for our children and their children.

 

 

Justice Saqib Nisar talked about the lack of self-accountability within the judiciary, there being no parallel in the world for a judiciary appointed by the judiciary and answerable to the judiciary, the general rule being that the superior judiciary is answerable to the people.  The dissenting Justice noted that no judge of the superior court has ever been prosecuted in a criminal court.  The judiciary in Pakistan having a uniquely privileged position constitutionally, a creation of the Constitution and not above it, their conduct must be above board while exercising their great powers with restraint and wisdom.

 

 

Our Lordships may camouflage the reasoning behind their judgement in legal language, the exceptional circumstances forcing the SC to adopt the much maligned “doctrine of necessity”. The ordering of judicial review to ensure meeting the ends of justice has opened a door (or is it a Pandora’s Box?) to legal challenges to judgments delivered by the military court. Unless the parameters are unambiguously qualified, if challenges proliferate and overwhelm the superior judiciary, the whole exercise of rendering swift justice becomes infructuous, and therefore meaningless. The SC having established a plurality precedent, what will then prevent the military for opting for the “doctrine of necessity” out of sheer frustration?

 

 The writer is a leading defense and political analyst of Pakistan. He can be contacted at ikram.sehgal@wpplsms.com

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