The news value of the Indian Prime Minister’s brief bus-over in Pakistan has been overtaken by an event of profound significance. In a unanimous judgment, a nine-member bench of the Supreme Court (SC) of Pakistan led by the most honourable chief justice, Justice Ajmal Mian, and his honourable senior-most colleagues has declared that the military trial courts (MTCs) decreed by the prime minister, Nawaz Sharif, first in Karachi and then all over Pakistan are “unconstitutional and illegal”. The SC has also swept aside all the judgments of the MTCs to date and provided “guidelines” to the government whereby the ends of justice may be met swiftly and legally either via the existing anti-terrorist courts or by other courts “established under law” to deal with terrorism, with the right to hear appeals vested securely in the high courts.
The judgment is music to the ears of every democrat in Pakistan. One, it restores part of the credibility of the supreme court which was seriously eroded in 1997 when it allowed itself to be divided and assaulted by the executive. Two, it heaps scorn on Mr Sharif’s attempts to browbeat the judges into condoning the MTCs — first by contemptuously announcing the establishment of MTCs all over the country even as the SC was hearing petitions challenging their legality and just after the SC had “stayed” the execution of the death sentences by the MTCs and then by using state-controlled media to launch a campaign showing how the people of Karachi were all in “favour” of the military courts. Three, the judgment vindicates the position of the former chief justice of Pakistan, Justice Sajjad Ali Shah, who had argued that even the special anti-terrorist courts could not operate outside the ambit of the high courts.
The judgment has far-reaching implications. One, it suggests that the supreme court is not likely to be swayed by an authoritarian regime’s brazen attempts to bypass the constitution on the basis of its so-called “mandate”. Many people may have voted Mr Sharif to power and others in Karachi may “approve” of the MTCs but the judges have confirmed that the constitution is permanently sacred, stands above the temporary fray and may not be violated by anyone, singly or collectively. Two, the SC’s message is equally clear on another front: if the government tries to call a joint-session of both houses of parliament without first debating any bill in the senate, the court is likely to strike such unconstitutional tactics down. Indeed, any attempt to amend the constitution — as for example via the Shariat Bill — and bypass the writ jurisdiction of the superior judiciary is also likely to meet with the same fate. Three, the judges have unequivocally denounced the “law of necessity” which was mercilessly flogged by the Attorney-General in a vain attempt to justify the use of MTCs to deal with the “threat of terrorism”.
The SC’s judgment comes on the heels of a decision by the Lahore High Court striking down the State Bank’s seizure of foreign currency accounts under the “law of necessity”. It follows a decision by the Chief Accountability Commissioner asserting his autonomy from the Accountability Cell and another by a bench of the SC which granted relief to the Jang Group in its life-and-death struggle against victimisation by the same Accountability Cell. These decisions, coupled with rising disgruntlement within the ranks of the ruling Muslim League as demonstrated recently by Mian Azhar’s numerous and vocal supporters in Lahore, would suggest that Mr Sharif is not going to have an easy ride. In fact, the opposition may take heart from this ray of light emanating from the SC to resist Mr Sharif’s authoritarian ways with greater vigour. Ms Benazir Bhutto, in particular, should be quite pleased with the way events are unfolding. It will not be easy for the judges to convict her of corruption or misuse of power even as similar charges remain pending in the supreme court and the Accountability Commission against her nemesis Nawaz Sharif.
There is, finally, the question of the impact of the SC’s decision on the armed forces. General Jehangir Karamat had wisely and discreetly resisted attempts by Mr Sharif to drag the army into the domain of the judiciary. With equal sincerity, however, General Pervaiz Musharraf took the opposite decision. Now the cookie has crumbled in the COAS’s fist and he must reckon on how to pick up the pieces. In particular, the officers who manned the MTCs and handed out the summary decisions must be quite peeved at their predicament. But this was a matter of mistaken concreteness and not a blunder. It will pass. What is important is that General Musharraf should learn the right lessons from this experience.
In the final analysis, of course, it is Nawaz Sharif who needs to reassess the dangerous implications of his reckless and authoritarian demeanour. He must learn to use his mandate to strengthen democratic institutions instead of riding rough shod over them. The SC has rapped him on the knuckles. If he doesn’t mend his ways, it could be more consequential the next time round.