Immunity to Institutions: Army and Judiciary

Pakistan  army money makerAfter arresting Javaid Hasmi of Muslim League (N) on treason charges, Prime Minister Jamali made a speech, in the Governor House Punjab, in which he stressed immunity from criticism for army and judiciary. He made comments after the anonymous letter which was though read by Mr. Hashmi but have not dramatically revealed something new to the public. What is demanded in the controversial letter is not something new and political analysts have demanded the same time to time in their columns and articles in newspapers.

The time has considerably changed since 1958 so Prime Minister Jamali andsupreme court and Army General Musharraf should not give sermons of 50s. Discussing the truth or asking for investigations of the event is not equivalent to maligning national institutions, whether it is army or judiciary. Army and judiciary do have constitutional safeguard from criticism on the ground that they would not participate in country’s politics. As they have been actively becoming a party in politics and ignoring constitution since 1977, so they cannot demand this constitutional immunity from criticism.  It is also quite interesting phenomenon as to why high treason cases are made against civil politicians only but men in uniform are immune with charges of high treason even when they indulge in politics, which is not only against the constitution but also against the oath that they take upon joining the army.

Mr. Jamali is not only Prime Minister but a seasoned politician and he must appreciate consequences of providing such a great comfort to these institutions, especially when controversies have been mounting against them since early 80s. Army and judiciary are organs of the state like any other so they should not be treated any different. Moreover, recommending complete immunization from criticism means giving them absolutely freehand for taking all kinds of legitimate and illegitimate actions. Considering history of Pakistan and track record of these institutions, a nation might not be willing to act upon the advice of PM. If such a suggestion is thrust upon people, it might lead to very negative consequences – love and respect cannot be secured by force.

If we go by the track record of army, whether politically or militarily, it is not very impressive. Since 1958, army generals have been breaking constitution of the country and capturing the highest political offices by employing unconvincing arguments. It is generals own perceptions and claims that they have always been invited by people or politicians to take over the power. Neither politicians nor people have ever invited generals into political arena. A few unpopular politicians might have made such invitations but how it is plausible to take unconstitutional actions of high gravity upon such requests is still a question in minds of majority. Legitimizing military actions is also not possible on these grounds that some of the politicians join military rule because of vested interests or due to hanging swords on necks. On the dimension of popularity, generals’ imaginative claims of popularity are usually exposed when they hold referendums and use government machinery to claim victory. Similarly, the military rulers though raise barren claims of good governance but history is a witness that they hardly fulfill what they promise at the time of occupying the government. As a matter of fact, it is incomprehensible as to how “backdoor entrants” can establish writ of law or good governance in the country!

The nation has experienced a short period of economic boom due to external and contingency reasons during military rules but none could stabilize the country economically and politically. If Gen. Ayub Khan benefited from the Korean War so do General Zia got the advantage of USSR-Afghanistan war. As far as Musharraf is concerned, he is enjoying fruits of 9/11. Gen. Ayub temporary economic benefits later resulted in political turmoil which led to disintegrate the country under the power of Gen. Yaya. Though, Money poured in the country during General Zia’s rule, his rule also endowed the nation with culture of Kalsinkov, deadly drugs, high level of corruption and sectarian killing. So far General Musharraf rule is concerned, we have to wait what we shall reap when Musharraf rule comes to its natural end.  It is unfortunate but true that we come to know what we have lost when a military rule has gone. If some of the political leaders are highly supportive of General Musharraf so General. Ayub, General Yaya and General Zia has enjoyed the same

Army has subjugated this nation many times but the fact remains intact that they could not do justice to their prime duty, which is, defending boundaries. Many analysts agree that we were at the verge of looking for opportunities to save our face in 1965, which we got in the shape of Tashkent Pact. In 1971, the army was killing Bengalese, ruthlessly and mercilessly, till the time they were in their land as Pakistanis, however, military surrendered without much hesitation and handed over half part of the country to the enemy when time came to raise real fight. It is an open secret that Kargil event was not more than an ambitious adventure which did not bring any fruitful result to the nation except embarrassment at the international level.

So far high level corruption in the armed forces is concerned, a popular opinion does not deny it. The issues of military officers’ corruption had been raised in courts and discussed in both national international media. A case is still filed in the Lahore High Court about army personnel corruption but no hearing has been made.

The track record of Judiciary is not impressive either. The judiciary gave number of decisions which carried negative implications for Pakistan’s politics and state building. The necessity doctrine of Justice(Retd.) Munir opened the way for the army to run over people’s wishes and democratic institutions. While declaring Yaya Khan’s rule as illegal, the necessity doctrine passed away and new precedence was established but judiciary gave rebirth to the doctrine by legitimizing Zia’s coup against the elected government. The judiciary is well aware of the fact that it out of their power to authorize any individual to amend the constitution but they cross their domain of authority by giving such power to General Musharraf. In five decades, they could not prove that they are guardians of the constitution. Another harsh fact of the history is that immunity to criticism for judiciary is always demanded from those quarters that want to use shoulder of the judiciary to legitimize their illegitimate action.

However, none can argue with PM that no one is above the law so do the Army and judiciary. In order to establish writ of the law in the country, the most appropriate suggestion for PM is that he should not insist in providing shelter of immunity to these institutions but strive for rule of the law. As a starting point, he should take appropriate action against the general involved in humiliating police officials in Lahore. In addition, a bill in parliament should be introduced under which army officers/personnel and judges of superior courts will also come under the purview of the accountability laws of the land.  Rule of the law will only be established when corrective measures are taken and not by putting Javaid Hashmi behind the bar or curbing opposition.

Published in the Daily Indus, Karachi, in 2004

Nadeem Yousaf

http://nyousaf.com/articles/immunity-to-instituions