Zardari, Nawaz pitting army against judiciary
Soon they will stand by the judges because of their history with the brass
Justice (r) Wajihuddin Ahmed has gained the reputation of Mr Clean in our political structure, which is quite an achievement. He has emerged as a personality known for upholding the rule of law and the constitution. He was set to become chief justice of the Supreme Court when he refused to accept Gen Musharraf’s PCO, preferring to bow out instead. He was also among the first to publically condemn Musharraf’s decision to make Iftikhar Ch dysfunctional in March ’07, despite his reservations – expressed in public – about the promotion of Arsalan Iftikhar. “Where there is smoke, there is fire”, he said of the CJ’s son, who remained controversial well after his father’s retirement.
He has since joined Imran Khan’s PTI. During party meetings, he would routinely advise Imran against praising personalities instead of concentrating on their work, Iftikhar Ch being the biggest example. Later, when Imran was nursing a back injury around election time last year, and complained about Iftikhar’s actions to Wajih, the latter reminded him of the importance of keeping a distance from names.
Now, as the 21st amendment throws the role of the courts into question, he talks exclusively to DNA about likely repercussions.
Question: Do you think that the judiciary has been compromised in dealing with the cases of terrorists. Do you think military courts would help in bringing terrorists to justice?
Wajihuddin Ahmed: As far as terrorism is concerned, the judiciary has performed well to some extent but not to the level which was required to deal with hardcore terrorists. But responsibility for not bringing the terrorists to justice lies with the executive and parliament and not with the judiciary. The judiciary is in itself a sustaining entity like the armed forces so the problem is not with the judiciary, rather the executive has to take measures to ensure effective case development against the accused, removing procedural flaws so criminals don’t dodge laws, and enabling the judiciary to make a judgment.
However, under a volatile law and order situation, ineffective policing and faulty investigative system, one can’t blame the judiciary for letting terrorists off the hook. It is more a failure of the system than the judiciary. When there is no evidence against an accused and witnesses refuse to stand by their statements, what sort of justice could be delivered by the judiciary?
Our judges are underpaid and they have no security. Hazrat Ali wisely said that judges should be paid handsomely so they are not tempted or intimidated by the wealthy and influential. The lower judiciary is working in an appalling situation. They have no protection and witnesses routinely refuse to stand by their statements. However, the overall performance of judiciary is still good.
The judiciary over the years gave 8,000 capital sentences but executive stopped executions under foreign pressure and terrorist threats, which helped militants dodge the judicial process. It is true that the performance of the judiciary is not up to the mark. Basically, the parliament and executive failed to perform and take responsibility.
Q: Do you think that the legislation for military courts would be challenged in the apex court? Do you think that the Supreme Court would strike down this law?
WA: Yes, I expect it to happen sooner rather than later. If the matter is challenged in the apex court, and I know that different bar associations are going to challenge it, the court would have to make a judgment. Actually, the judiciary is the only institution whose independence has been guaranteed under the constitution. If the court strictly goes by constitutional provisions, the 21st constitutional amendment would be declared void as this amendment is a violation of the basic structure of the constitution.
But the judiciary has its limitations as it is in total control of government vis-à-vis its financial and administrative matters. Yet its performance is not so bad. You see, in Britain, there is a judge or magistrate for a unit of 1,000 people. But in Pakistan, one judge is to decide cases of 90,000 people.
So, if you give a weapon to a judge, how he would perform? Likewise, if an army officer is given a pen, how would he decide cases? He is not trained to make judgments, rather he is trained to use his weapons. I remember how Chief Justice Sajjad Ali Shah had set aside 13th and 14 amendments passed by the Nawaz regime. The same is likely to happen again. PM Gillani also tried to subdue the judiciary.
Q: If the law of military courts gets struck down, do you see a direct confrontation between the two major organs of the state — the judiciary and the army?
WA: I fear that there is a conspiracy by the government to pit the army against judiciary. Actually the parliament and the executive have invited a direct confrontation between these two institutions. Probably the government wanted the military to be pit against the judiciary because the army-men don’t apply their minds. Rather, they are trained to use the power from the barrel of the gun.
I think that the PPP and PML-N are hand in glove in conspiracy to pit the army against judiciary. This looks to be a calculated move. If this confrontation happens, both the PPP and PML-N would stand by the judiciary to avenge their past grievances against the army. We remember how, after coming to power, Asif Zardari made a failed effort to bring the ISI under his thumb.
Same the case is with Nawaz Sharif. There is a proverb ‘once bitten twice shy’. You know Prime Minister Nawaz Sharif has been sent home twice. First he was sent home by General Kakar. Then General Musharraf packed his government. It seems that when the military grabbed power and made the prime minister a puppet, Nawaz Sharif, like a true hypocrite, decided to respond. It is a bid to cut the army to size. So he decided to go for legislation for military courts, thinking that the judges would react.
Q: If you had calculated military-judiciary showdown, do you see yet another martial law? Why did your party back the lawmaking for military courts if you see a conspiracy?
WA: I really don’t know how the military would react if judiciary strikes down the 21st amendment. But what I can see is that the army chief, General Raheel Sharif, made big achievements during his recent foreign trips to Afghanistan, UK and US.
Unfortunately, whether it is Pakistani politics or our institutions, there are wheels within wheels everywhere you go. The Nawaz government does not see eye to eye with the army. So despite knowing that there are constitutional flaws in this legislation, he gave the go-ahead for military courts.
Actually, there was no need for constitutional amendments if he wanted speedy justice. I am on record to oppose a constitutional amendment if the government and military wanted speedy trial of terrorists. This could have happened without damaging the basic structure of the constitution as we should follow the constitution and rather than violating it.
In my view, civilians could have stood trial in military courts by making minimal changes in the army act. But if any major punishment is to be handed down by military courts, the right of appeal may have been to the Supreme Court and it could have been asked to decide the matter within four to six weeks. My party leadership also did not want an amendment for military courts and it had shared its reservations in the APC.
The PTI representative in the committee, Hamid Khan, also did not support it. However, when all political parties supported the idea, my party also agreed so the national consensus on terrorism was not damaged.
