Will the judiciary and the military meet?

Will the judiciary and the military meet?

By  Qamar Bashir

Former Press Secretary to the President

Former Press Minister to the Embassy of Pakistan to France

Former MD, SRBC

The timing of the ISPR Press Conference was quite intriguing. It coincided with the Supreme Court’s decision to accept the petition by Sardar Latif Khosa and Atizaz Hussain seeking court intervention to halt or reverse the federal government’s decision to send the cases of civilians allegedly involved in the May 9 Mayhem to the military courts for trial. Yesterday (26 June, 2023) at an unexpected press conference, the ISPR warned in no uncertain terms that all those who were involved, aided, or supported the 9 May mayhem would be held accountable without mercy.  The military made its position on May 9 perpetrators, abettors, and facilitators, possibly including the judiciary, abundantly obvious. Sending a clear message to the Supreme Court: “Don’t mess with the army.” The judiciary read the message, and adjourned the court proceedings sine die although it had promised to announce its verdict on Tuesday (27th June, 2023).

The judiciary and the army are two vital institutions which should be kept above board, empowered and devoid of any controversy. But unfortunately, the judiciary is currently divided, weakened, and discredited, marking some of the lowest point in our history, and the army’s public image is compromised which needs to be restored as fast as possible because the health, effectiveness, and credibility of the Judiciary as a pillar of the state to uphold rule of law and the army as a vital institution to counter internal and external threats are essential to a healthy society and the nation.

The judiciary is possibly going through its most difficult period. The nine-member bench constituted to hear the impugned petition was disbanded shortly after it began hearing. The reassembled 7-member court disbanded the following day when one more judge declined to participate in the hearing. The reconstituted six-member bench is currently hearing the petition, the legality and credibility of which has been called into question by none other than Chief Justice in waiting, Qazi Faiz Essa, who withdrew himself, calling the constitution of any bench totally illegal until supreme court announce its final verdict on the fate of sub-judice case of Supreme Court Practices and Procedure Act 2023, which was aborted even before it was born.  This prompted our Interior Minister to declare the Supreme Court’s entire proceedings unconstitutional, null and void and of no consequence, and warned that any adverse verdict of the court in this matter will face the same destiny as the Supreme Court’s decision to hold elections on May 14th. The proceedings of the truncated 6-member bench have now met the same fate as the Supreme Court Practices and Procedure Act, which was declared invalid even before it was enacted.

Internal conflict among the justices, which appears to be a revolt against the Chief Justice, is one of the major factors eroding the supreme court’s writ. The judges openly challenge and undermine the Chief Justice’s authority, raising concerns about political interference or personal biases influencing judicial decisions, creating a highly polarized atmosphere within the court and impeding the ability to reach consensus on important legal matters. The resultant schism has harmed the institution’s reputation and effectiveness, impairing prompt settlement of crucial legal issues with major ramifications for the administration of justice. This uncertainty has influenced how laws are interpreted and applied, causing confusion and inconsistency in lower courts and among legal practitioners. The  checks and balances among the different branches of government have been undermined, culminating in a political and legal crisis that threatens the system’s stability.

The mess we’ve created in all sectors is entirely our fault. Even our ferocious adversary is not to blame. It is obvious that the United States, China, Israel, and India have many more enemies and face much greater threats than we do, but all of them are flourishing and progressing at a rapid pace, demonstrating that if a country is strong within, no enemy, no matter how powerful, can harm its economic, financial, and security interests. This was possibly our weakness: we lost the entire wing in 1971, and we sacrificed over 70,000 lives in the United States’ war against terrorism as if our lives were less valuable and our blood was thinner than the lives and bloods of other nations. We lost Kargil, and we lost our dignity and self-respect when Osama Bin Laden was murdered while hiding in Pakistan, despite our furious denials.  Now, we are on the verge of losing Kashmir not because our adversary is strong, but because, in the pursuit of a larger share of power and the distribution of scarce economic resources, as well as personal vendettas and vested interests, we have been pushed to the bottom of all kinds of international rankings. We have willingly mortgaged our sovereignty, pride, and independence with the IMF and other lending institutions and nations to buy some breathing space, but this space is also limited if we continue on the self-destructive path and do not significantly and fundamentally alter and reform our attitudes, work ethics, and business processes.  We must recognize that it is not because of other countries’ conspiracies, but because of our own weaknesses, that we have lost any kind of leverage over international players when compared to manipulative abilities and capabilities acquired by our sworn enemies and neighbors as a result of their correct world view, confidence and pride in their own people, and investment in education, health, and civilian infrastructure, which allows them to create a lot of wealth, which in turn has been utlized to strengthen their defense and security apparatus  It cannot be the other way around by any stretch of the imagination.

The May 9 mayhem was a heinous and abhorrent act that was condemned by all and everybody, including the head of the PTI. It was similar to other terrorist attacks on defense institutions, such as the strikes on Pakistan Naval Station Mehran (2011), which damaged two P-3C Orion aircraft and killed several military personnel, attack on Kamra Air Base (2012), which resulted in the deaths of many military personnel, attack on Badaber Air Base (2015), which resulted in the deaths of 29 persons, including 16 military personnel. The attack on Bacha Khan International Airport in 2014 killed 29 individuals, including civilians and security officers. The horrible attack on Army Public School (2014), which killed 132 students and 10 staff members, making it one of Pakistan’s bloodiest acts of terrorism in history.

Our brave and professional soldiers dealt with all of the terrorists and terrorist organizations involved in the attack on our defense sites with iron fists.  This is exactly what they are doing right now against those guilty for the 9 May devastation. The Army, with its legendary accountability system, has already completed two comprehensive inquiries led by two major generals, and disciplinary proceedings have been completed against those who failed to maintain the security and honor of garrisons, military installations, Jinnah House, and General Headquarters. “Three officers, including a lieutenant general, have been dismissed.”  Strict disciplinary actions have been completed against officers, including three major generals and seven brigadiers.

Same fate is perhaps waiting for any civilian who was either armed, his ulterior motive was to kill security personnel, take over and destroy the military resources Vandalism and destruction of property. However, the  jurisdiction and venue for trying civilians can vary depending on the specific circumstances and legal frameworks of a country. In the United States,  the Uniform Code of Military Justice (UCMJ) primarily governs the conduct of military personnel and does not typically apply to civilians. In the United Kingdom civilian police forces would investigate the crime, and the individuals involved would be subject to the regular criminal justice system. In India, if a civilian is found involved in vandalizing military property, they would generally be tried in civilian courts rather than military courts. However, if the act of vandalism poses a significant threat to national security or is linked to a broader conspiracy involving military personnel in such cases, the military authorities may request the transfer of the case to military courts.  This is precisely what is taking place in Pakistan.

The statement of the DG, ISPR that the conspiracy leading to 9 May was hatched three months ago may have been hatched in connivance or abetted by the civilians who therefore could be tried under the Army Act 1952.  The army courts were established as part of the National Act plan following the passage of two exceptional pieces of legislation on January 6 and 7, 2015, namely the 21 Constitution (Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015. Article 175 of the Constitution was amended allowing the establishment of military courts to try civilians for offenses related to terrorism, waging war or insurgency against Pakistan, and the prevention of acts threatening Pakistan’s security by any terrorist group misusing the name of religion or a sect. These modifications, which were initially effective for two years, were extended and are still in effect today. Section 58 of the army act also covers abetment and says, “Any person subject to this Act who abets the commission of any offense before in this Act specified, or of any offense…….shall, on conviction by Court martial be punished with the punishment provided for such offense in this Act (XIV of 1932).  However, the procedure to hand over a civilian to the military is very elaborate.  The civilian must be arrested by the police or other law enforcement agency. The police  must  charge the civilian in a civilian court, the court would determine whether the civilian should be tried in a military court or a civilian court. If the civilian court determines that the civilian should be tried in a military court, he is properly handed over to the military after seeking approval of the government.

It is undoubtedly a challenging period for the military. Taking stern administrative actions against their own officers and jawans is a difficult, hard, and excruciating undertaking. Similarly, trying civilians, which has social, cultural, and international ramifications in terms of human rights, is not an easy decision to make, and they must ensure that no innocent person is punished or subjected to hardships. Similarly, the Supreme Court is experiencing some of the most painful and low points in our history. The internal schism has given the litigants the confidence to defy the Supreme Court’s decision. It is high time for all of the state’s pillars and institutions to step back from their belligerent positions and, putting aside their personal vendettas, rage, and frustrations, to once and for all decide to stay within the bounds of the constitutions and allow all pillars and institutions to function as per law, without fear of intimidation, bullying, harassment, and intimidation, and only in the greater national interest.

As a first step, we as individuals, groups, and as a nation should take all necessary steps in our respective capacities to restore the Supreme Court’s effectiveness in upholding the rule of law, as well as to restore the prestige, love, and affection for our armed forces, which is a recognition of the countless sacrifices they have made to keep our country safe and secure.