The judiciary-military nexus

Despite passing the 18^th Constitutional Amendment and feeling itself secure of any threat to the parliamentary democracy, Pakistan has just escaped another accident of its democratic history.

Despite passing the 18^th Constitutional Amendment and feeling itself secure of any threat to the parliamentary democracy, Pakistan has just escaped another accident of its democratic history. A careful study of the July 28 judgement of the Supreme Court (SC) indicates that a nexus between the higher judiciary and the military was in place to jettison the then sitting Prime Minister, Nawaz Sharif, in case he did not submit to the decision of the SC.

In its para 15, the July 28 judgement says: “As a sequel to what has been discussed in paragraphs 13 above, the following declaration and direction is issued … (iii) The President of the Islamic Republic of Pakistan is required to take all necessary steps under the Constitution to ensure continuation of the democratic process”. Subsequently, the judgement reiterates the same direction in para 4 of the “Final Order of the Court”.

For the sake of discussion, the afore-quoted sentence can be parsed into three parts.

Part I would discuss whether or not any power was vested in SC to issue a “direction” to the president.

Part II would discuss what was expected from the President of Pakistan in the context of taking “all necessary steps under the Constitution.”

Part III would discuss the meaning surrounding the “continuation of the democratic process.”

Part I of this discussion is about the power of the SC to issue a “direction” to the President. There are two main problems with this part of the judgement. First, the SC overlooked the fact that a direction is given by a higher authority to a lower authority. However, under the Constitution of Pakistan, the President of Pakistan was not an authority lower than or subordinate to the SC. As per Article 175 (A), the power to appoint the Chief Justice of the SC of Pakistan and the judges of the SC rests with the president. Hence, by giving a direction, the SC overstepped its constitutional limits. Second, the SC overlooked the fact that the meaning of giving any direction to the President of Pakistan meant giving a direction to the Parliament. As per Articles 41 and 47 of the Constitution, the President of Pakistan is a part and product of the Parliament, as the Head of State, and not isolated from the parliament. Similarly, Article 48 (1) says that, in exercise of his functions, the President “shall act on and in accordance with the advice” of the Cabinet or the Prime Minister, and not on the direction of any authority. Hence, the Constitution had not mandated the SC to issue any such direction. This is how the July 28 judgement becomes an example of judiciary’s overstepping its constitutional limits.

The discussion raises a question, why the SC attempted to give any such direction to the President, and a search for the answer to this question takes the readers to the next part. Part II of this discussion is about finding out what was expected from the President of Pakistan in the context of taking “all necessary steps under the Constitution”.

The answer lies in Article 48 (2) which says that the President “shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so…” That is, the meaning of taking “all necessary steps under the Constitution,” as written in the judgment, can be understood in light of Article 48 (2). With the exception of the word “direction” or “required to”, para 15 of the July 28 judgement asked the President of Pakistan vehemently to invoke his powers – unconditionally – given under Article 48 (2). This was an unjustified intrusion of the SC into the domain of Article 48 (2). Interestingly, for the sake of its implementation, one the one hand, the July 28 judgement discredits the “discretion” of the president by giving him a “direction”, while on the other hand, the judgement relies on the power of “discretion” invested in the president to process the implementation of the judgement.

Nevertheless, to substantiate Article 48 (2) comes Article 243, Section 1 of which says: “The Federal Government shall have control and command of the Armed Forces,” while Section 2 of which says: “Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President”. That is, generally, the command of the armed forces rests in the federal government (which also includes the president), but precisely the command rests in the office of the president. To elucidate this point further, Article 245 (Sections 1 and 2) says that the Armed forces, besides defending “Pakistan against external aggression or threat of war”, “under the direction of the Federal Government” shall “subject to law, act in aid of civil power when called upon to do so”, and that the “validity of any direction issued by the Federal Government … shall not be called in question in any court”. That is, on the direction of the president, the armed forces will come into action and, in any such eventuality, Article 6 (embodying the act of high treason) is applicable neither to the president nor to the armed forces. This is why one can find the statements repeatedly coming from the Chief of Army Staff, General Asim Bajwa since July 28, that the military is successfully decimating terrorists in Khyber-IV operation to establish the rule of law and that the military is committed to upholding the supremacy of the Constitution in Pakistan. Through his utterances, it is Article 245 that General Bajwa is reminding everyone time and again.

The discussion raises another question, what is the relationship between the emphasis by the SC to “ensure continuation of the democratic process” and the refrains raised repeatedly by General Bajwa to “uphold the supremacy of the Constitution,” and a search for the answer to this question takes the readers to the next part.

Part III of this discussion is about the emphasis of the SC on ensuring the “continuation of the democratic process”. There are two main problems with this part of the judgement. First, the SC laid emphasis on the “continuation of the democratic process” and not on the continuation of the existing parliament (both National Assembly and Senate). That is, the SC expressed scorn for the (continuation of the) existing parliament. Under the Constitution, the SC was not mandated to do so. Second, through all his publicly aired messages since July 28, General Bajwa has been vowing military’s commitment to upholding the supremacy of the Constitution, and not the supremacy of the parliament in Pakistan. Through such sloganeering, the military is also overstepping its limits enshrined in the Constitution. General Bajwa is overlooking the fact that the President of Pakistan, the SC and the Constitution – and even the military – are all the product of the parliament. Constructing any line of command alternative to the parliament (or to counterbalance the parliament) is against the norms of democracy.

The message aired by the July 28 judgement of the SC is now quite clear. The SC had expected that a kind of resistance would be offered by the then sitting Prime Minister, Nawaz Sharif, on his disqualification through the judgment. Consequently, there might erupt riots in the streets by political parties which had filed the constitution writ petitions. The chaos would galvanise the armed forces into obtaining a direction from the president to act on his advice, with impunity from high treason. Interestingly, this implication of the July 28 judgement is still extant. Unfortunately, at the centre of the consequent judiciary-military nexus lies the power of rioters, as a driving force.

Hence, through its July 28 judgement, besides disqualifying the sitting prime minister on flimsy refutable grounds, the SC has done another five serious injustices to Pakistan. First, it forged a nexus between itself and a subordinate part of the executive, the military. Second, it crossed its constitutional limits. Third, it attempted to exploit the discretionary powers of the president. Four, it provoked the military to be disrespectful to the parliament. Fifth, it offered ample manoeuvring space to the forces of riot to spawn.