The bill in question includes provisions for the constitution of benches, exercise of original jurisdiction, interpretation of the Constitution, and the right to appeal. The Act mandates that every cause, appeal, or matter before the Supreme Court shall be heard and disposed of by a bench constituted by the Committee comprising the Chief Justice of Pakistan and the two most senior judges, in order of seniority. It also establishes a process for appeal, which shall lie within thirty days from an order of a bench of the Supreme Court exercising jurisdiction under clause (3) of Article 184 of the Constitution to a larger bench of the Supreme Court, and such appeal shall be fixed for hearing within a period not exceeding fourteen days.

According to the new Act, whenever a cause, appeal, or matter is brought before the Supreme Court, the chief justice of Pakistan and the two most senior judges will decide as to which judges will be assigned to hear and dispose of the case. The order of seniority will be followed in selecting the judges for the said committee, with the most senior judges given priority. It outlines the process by which benches are to be formed in the Supreme Court of Pakistan to hear and decide cases, ensuring that the most senior judges are given a prominent role in the process.

The primary object of the Supreme Court (Practice & Procedure) Act, 2023 is the realignment of powers and authority within the SC, and not curtailing its jurisdiction. The apex court is not just composed of the Chief Justice, but also other judges who could potentially take action on cases.

Undoubtedly, Article 191 grants the Supreme Court the authority to make rules regulating the practice and procedure of the court, but this power is subject to the limitations imposed by the Constitution and other laws. One such limitation is that the Parliament, which is responsible for making laws, can create rules regarding the constitution of benches in SC through legislation. This means that the Parliament can pass a law that specifies how the benches in the court should be constituted, which would then become a part of the legal framework governing the functioning of the court.

The Act further specifies that before any matter invoking the exercise of the Supreme Court’s original jurisdiction under Article 184(3) can be taken up by the court, it must first be placed before the Committee for examination. If the Committee determines that question of public importance with reference to fundamental rights specified in the Constitution is involved, it will then constitute a bench of not less than three judges for adjudication of the matter which may also include members of the committee. In addition, the Act also recognizes that matters involving the interpretation of constitutional provisions are particularly complex and important. Therefore, the requirement is to constitute a bench of not less than five judges by the abovementioned committee in order to ensure that these cases are heard by a diverse and experienced group of judges, who can provide a thoughtful and nuanced analysis of the constitutional issues involved. Furthermore, section 5 of the Act is related to appeal which indicates the procedure for filing an appeal within thirty days to a larger bench of the Supreme Court against the order passed under article 184(3) of the Constitution. The appeal must be scheduled for a hearing within a period of not more than fourteen days. An individual who has been adversely affected by an order issued under clause (3) of Article 184 of the Constitution, prior to the enactment of this act, also has the right to appeal. However, such an appeal must be filed within thirty days of the commencement of this act.

Entry 55 of the Fourth Schedule, Part 1 of the constitution of Pakistan specifies that the Parliament of Pakistan has the power to make laws regarding the jurisdiction and powers of all courts, except the Supreme Court, on certain matters listed in the Constitution. However, any law made by the Parliament to enlarge the jurisdiction or confer supplemental powers on the Supreme Court must be authorised by the Constitution. Nevertheless, it is imperative to align it with Clause 2 of Article 175 of the Constitution which stipulates that no court is allowed to exercise its powers and authority beyond what has been explicitly granted to it by either the Constitution or any law passed by the Parliament. Consequently, although Constitution limits the legislature’s power over the Supreme Court in certain cases, it also allows the legislature to determine the cases that fall under the Supreme Court’s jurisdiction.

In India, a Constitution Bench of the Supreme Court is required to decide on matters of law that require interpretation of the Constitution or involve significant legal questions. Such a Bench must involve a minimum of five judges. A Constitution Bench can also be constituted when two or three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, or when a later three-judge bench doubts the correctness of a judgment delivered by a former bench and decides to refer the matter to a larger bench for reconsideration.

The primary object of the Act is the realignment of powers and authority within the SC and not curtailing its jurisdiction as the Supreme Court in Pakistan is not just composed of the Chief Justice, but also other judges who could potentially take action on cases. By involving more than one judge in important cases, the law would ensure that decisions are made through a collaborative effort and not the sole prerogative of a single judge. The creation of a judges’ committee to decide which judges would hear the case would provide a structured and impartial process for selection. Besides, the right to appeal against the decision of a single judge to a larger bench would ensure that the decision-making process is fair and transparent. Consequently, it is beneficial in promoting transparency, fairness, and collaboration in the judicial system.

Osama Khalil

The writer is a legal intern based in Peshawar and holds a BS-Law degree from Edwardes College, Peshawar.

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The government had convened a National Assembly sitting ahead of schedule and approved a bill regulating suo motu litigations and passed two resolutions targeting the judiciary for “exceeding its institutional mandate”.

Amid institutional wrangling, an eight-member larger bench of the Supreme Court had preemptively barred the implementation of the Supreme Court (Practice and Procedure) Bill 2023 that limits the Chief Justice of Pakistan’s discretionary powers.

The move was widely criticised by the coalition government, as well as the legal fraternity.

In response, the government convened a National Assembly sitting and passed a bill, titled the Supreme Court (Review of Judgements and Orders) Bill, 2023.

Tabled by Pakistan Muslim League-Nawaz’s Shaza Fatima Khawaja, the bill was aimed at “facilitating and strengthening the Supreme Court in exercising its powers to review its judgements and orders”.

If the bill is passed, it will give the right of appeal to the aggrieved party in suo motu cases. The review petition would be heard by a larger bench than the original one, Express Tribune reported.

According to the bill, any individual who files a review petition can be allowed to hire the services of a lawyer of their choice rather than the current policy of utilising the same lawyer who had argued the initial case.

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Senior journalist Nasim Zehra had also shared the report, saying that senior judges Justice Qazi Faez Isa, and Justice Mansoor Ali Shah had encountered the CJP and Justice Ijaz ul Ahsan during their evening walk in the Judges’ Colony Park. She said that both sides allegedly exchanged harsh words and were nearly involved in a physical altercation.

Details are more “thrilling ” than the info shared here 😉 https://t.co/MfHXkwHsvJ

— Ajmal Jami (@ajmaljami) April 14, 2023

However, the Supreme Court issued a statement denying the “false news”.

Refuting the report in “strongest terms”, the statement said, “it is false, mischievous, and malicious”.

It also added that false reporting regarding the judges of the senior court is a “serious violation of law”.

&;

Amid simmering tensions between top Supreme Court judges over the Chief Justice of Pakistan’s discretionary powers, it was also reported that senior judges exchanged harsh words with each other after the Judicial Commission of Pakistan meeting, chaired by the chief justice.
Justice Qazi Faez Isa, Justice Sardar Tariq Masood, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah were called into the CJP’s chamber after a JCP meeting wherein nomination of Justice Musarrat Hilali as the chief justice of the Peshawar High Court was approved.

Senior Supreme Court judges, including Justice Qazi Faez Isa, Justice Sardar Tariq Masood, Justice Ijazul Ahsan, and Justice Syed Mansoor Ali Shah, have openly expressed disagreement with the CJP over his discretionary powers on bench constitution, and suo motu notices among others.

According to Express Tribune, after CJP Bandial called these judges to his chamber, both sides traded barbs. A retired judge also intervened but his attempts to make reconciliation failed.

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Concerns over the Chief Justice of Pakistan’s discretionary powers are now being raised from within the Supreme Court. Institutional solidarity has fractured because of the repeated, bullheaded refusal of each Chief Justice to rein in their power. In a searing critique that brings to light the polarisation now prevalent in the court itself, Justice Mansoor Ali Shah accused the office of the Chief Justice of Pakistan of making the Supreme Court a “one-man show.” He argued that it was “anachronistic, outdated and obsolete but also antithetical to good governance and incompatible to modern democratic norms.”

The dissenting voices in the judiciary have a point. The powers of the chief justice are being exercised without any modicum of accountability. The only institution that can hold the Chief Justice accountable is the Supreme Judicial Council – essentially the judiciary itself. Ironically, that is where the chief justices have shown maximum restraint. This was witnessed when the Women’s Action Forum filed a reference against former chief justice Saqib Nisar. Ultimately, it was a matter never heard or addressed despite the formulation of a well-documented and strong case against him.

Why absolute discretion is problematic

The rule of law and attainment of democracy must be the final destination for any path forward for Pakistan. And while these concepts often elude easy definitions, there are some broad ideas about them that we can all agree on.

First of all, a system that adheres to the rule of law requires decisions to be made based on objective principles, free from arbitrariness – where all cases are treated alike. This means that an individual cannot have absolute discretion.

Moreover, the fundamental principle of democracy is the people’s say in the decisions that impact their lives. Tied with this is the concept of accountability of public officers through the exercise of the vote. And every state institution is bound to respect and aspire to these principles. It is, therefore, necessary for the Supreme Court of Pakistan to not only ensure that every organ of the state is held accountable for any deviation from these principles, but also hold itself to the same standards.

The Supreme Court’s power to take suo motu notice, as is being currently practiced, is difficult to justify from both a rule of law perspective, as well as from the governance standpoint. Judicial restraint and reforming the system that grants these unbridled powers of the Chief Justice of Pakistan is the need of the hour.

The anomaly

In a constitutional system, no court can exercise jurisdiction not specifically granted to it under the law. For a case to be heard directly by the Supreme Court (as per its original jurisdiction), the conditions outlined in Article 184 (3) must be fulfilled: The case must relate to a matter of public importance and involve a violation of the fundamental rights guaranteed under the Constitution.

Since the 1973 Constitution was framed, and all the way to the 1990s, this power was always understood by the Supreme Court to mean that an actual case needed to be filed before it met the criteria of Article 184 (3). During this period, the Chief Justice of Pakistan could not create a case on his own – based on a news headline, letter or his own opinions. This novelty came nearly about two decades after the Constitution was enacted. This power was created through judicial activism. It has no basis in the text of the Constitution, and it had not even been mentioned by the Supreme Court when it framed its own rules in 1980. Despite this, the top court eventually established a precedent that gave the Chief Justice the power to take up matters of public importance out of his own volition.

While there is precedent regarding how the ambiguous terms in 184 (3) are to be interpreted, recent history has demonstrated that what is a matter of public importance depends largely on the views of the Chief Justice of Pakistan. For some, it has been privatization, for others disqualification of politicians. Matters of public importance for the country change as fast as the Chief Justice.

As for fundamental rights, the period spanning from Iftikhar Chaudhry to Saqib Nisar has shown us that if a judge feels strongly enough about an issue, he will interpret a fundamental right so expansively as to justify a foray into making policy. Saqib Nisar did precisely this with the right to life, using it to justify his project of fixing Pakistan’s water woes.

Due to these unenviable precedents, Chief Justice of Pakistan now has the unbridled authority to take up any matter that he considers important enough, and even make a policy that can be imposed on a country of over 220 million people. This is an untenable position for any democracy to have.

The way in which suo motu power are currently being exercised undermines democratic decision-making. By using it to frame policy, the Supreme Court routinely acts beyond the scope of its judicial mandate – acting as the executive or the legislature with the economic or political competencies to participate in either. Under such circumstances, the separation of powers, an essential accountability mechanism in a democracy, is swept aside.

In one of the most infamous recent examples, Chief Justice Saqib Nisar decided that Pakistan needed to build another dam and began using his office to raise funds for the purpose. That was problematic because the country’s policy on water management and the use of natural resources should not be determined by an individual – especially when that person is neither elected nor an expert on the issue.

Policy decisions, whether on public health or the economy, are supposed to be made by elected representatives. The Constitution of Pakistan makes this distinction clear by treating principles of policy as distinct from fundamental rights. The latter can be enforced and implemented by courts; the former are aspirational goals left to the executive and parliamentary discretion. The purpose of the policy principles enshrined in the Constitution is to broadly frame or define the type of democratic system the country ought to have. But it is up to the legitimate stakeholders involved in the democratic process to decide how to get us there.

The democratic process is far better suited than the judiciary to take the right decisions on matters related to public policy. The nature of parliamentary democracy is such that issues must be debated, reasoned, and weighed by elected representatives before decisions can be taken. The entire process is built to accommodate compromises and negotiations on intractable issues. The courts aren’t suited for this because they are fundamentally adversarial in nature. They are built not on compromise, but on exacting legal rules. They cannot weigh the numerous equities at play, for instance, deciding how best to allocate state resources given a certain set of competing interests and influences.

Apart from lacking the expertise to solve these issues, the judiciary is not the right place for these decisions because it is unelected and therefore its policy decisions would lack legitimacy. They cannot be held to account for their bad decisions the same way as parliamentarians can – simply because judges can’t be voted out of office.

This is why whenever the Chief Justice of Pakistan uses the suo motu power to determine the state policy, he undermines democracy. Institutional boundaries are blurred, and an unelected individual is allowed to wield extraordinary power to impose their own subjective economic, social, and political views on an entire nation. And these discretionary powers find no clear basis in the Constitution.

The Rule of Law Problem

That the authority to take suo motu allows judges to form a national policy is enough to consider steps to curtail this power. And even if this power is exercised for fundamental rights protection, the power runs into broader rule of law problems.

When the Chief Justice takes suo motu notice of an issue, he is signalling that he cares deeply about the question it raises. That issue is then heard by a bench that he himself presides over. Thus, it is established even before the first hearing that the judge heading the bench feels strongly about the matter.

Add to this the Chief Justice’s absolute discretion to determine who sits on a bench, hearing a case with him. This means disputes become foregone conclusions. These judges often have the same ideological views on the matter as the top judge. Agreement is guaranteed from the outset. In the rare case where there is dissent, the bench can always be reconstituted. This happened, for instance, when Saqib Nisar abruptly reconstituted a bench to exclude Justice Qazi Faez Isa as soon as a glimmer of disagreement was witnessed, or even with the recent fiasco during the hearing concerning the date for provincial elections in Punjab and KP.

It is an essential attribute of the rule of law and due process that justice must not only be practically done, but should also be “seen to be done” by the people. The public’s confidence in the impartiality of the judicial process is as important as the results of that process. People need to have confidence that judges have a certain level of detachment from the cases they are hearing, that all sides will be heard fairly and that decisions will be made according to objective principles rather than the subjective views of the Chief Justice. A suo motu notice prevents this.

Instead, it signals that those who hold the same views on an issue as the current chief justice’s pet project will evidently have greater chances of success in the judiciary. During Saqib Nisar’s tenure, it was clear that a person’s views on the dam fund would determine how they would be treated in court. The image of the judiciary as an impartial arbiter was fractured.  Former Supreme Court justice Maqbool Baqar said about the power to reconstitute benches: “The practice has also tarnished the public’s perception about the independence of the judiciary.” Rule of law is also about reigning in discretion.

Justice is a system

I am conscious that all these arguments – on democracy, discretion, and impartiality – may be met with the same objection: that Pakistan is not an evolved democracy; the people in parliament are corrupt; our institutions are not independent. That in such an environment, the court  has no choice but to intervene to protect the country.  That extraordinary circumstances require extraordinary measures It is no wonder, thus, that suo motu cases which are tough on politicians are celebrated.

It is an argument so familiar to Pakistan’s history that at this point it has lost all meaning. It justified military rule and was the premise of Justice Munir’s use of the doctrine of necessity. To continue to insist on its worth is a failure to learn from history.

That all politicians are corrupt is another cliché. Yes, corruption exists in Pakistan, but one-off decisions cannot solve the institutional problem. Whatever our opinion on politicians, we must respect that they were voted into power by millions of Pakistanis. To disregard them is to disregard democracy.

Of course, some suo motu decisions have given us good results. However, focusing on singular decisions is myopic. Justice is not simply about results. It is a system. Focusing on results creates  little distinction between justice and the rule of the mob. Mobs don’t make a just process. An obsession with results ends up turning our perception of the fundamentals of the rule of law into unnecessary obstacles rather than necessary foundations.

When we forget about systems, we never fix the problems that plague them. We create perverse incentives instead. Because the justice system is broken, everyone wants a suo motu on their case because they recognise that it will be heard on an expedited basis. After all, it is the ability to generate enough buzz and headlines that will get your case heard by the Chief Justice – extra points if it can help him build a legacy. Meanwhile, the decades-old property dispute of some poor individual is left navigating the maze of trial and appellate courts for decades.

Law as Integrity

From here we need to chart a path forward. We need a deeper conversation on the relevance of suo motu powers and the merits of judicial restraint. Judicial restraint should not be caricatured as a theory preventing the evolution of law and precedent. Instead, it should be viewed as a principled stand in favour of the separation of powers.

Given how anomalous the suo motu power is in a democracy, the ideal solution would be to eliminate it altogether while framing clear guidelines on the exercise of the court’s jurisdiction when a petition is filed under Article 184 (3). The parliament should enact a framework on what the term ‘public importance’ can mean.

Alternatively, if the power is to be retained, we could have a more robust and consultative framework for its exercise. For example, to modify proposals given in Pakistan’s Senate by Farooq Naek in January 2022, and those by Justice Mansoor Ali Shah in his note in the recent provincial election case, the decision regarding whether a case merits suo motu notice should be taken by a panel of five judges in the Supreme Court rather than just the Chief Justice. This panel of judges could be a mix of senior and junior judges.

If the panel decides to take suo motu notice, they should then refer the matter to be heard by a separate bench of judges – to ensure impartiality.

These decisions should be appealable (currently suo motu decisions can only be challenged in review before the same bench of judges). Mistakes happen after all, even by the Supreme Court.

But none of this will matter unless we have a broader political consensus that the Supreme Court should not involve itself in cases that relate to economic and social policy that are best left to elected representatives. Pakistan needs fewer unelected institutions wielding power, given the country’s history.

To have integrity, the law must function as a body of coherent decisions. And this stability cannot be achieved if the law changes with the Chief Justice.

For far too long, our rule of law has been juggled from the tenure of one Chief Justice to another. It is time we return this rule to whom it belongs: the separate institutions of the government, who are required to exercise this rule transparently.

Hassan A Niazi

The writer is a lawyer and former member of the visiting faculty at the Lahore University of Management Sciences. He did his LL.M. from New York University where he was a Hauser Global Scholar. He is currently based in Singapore.

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Justice Mussarat Hilali will resume the charge of the Peshawar High Court Chief Justice as two senior judges of the high court are set to retire in March.

The judges who are set to retire include PHC Chief Justice Qaiser Rashid, who is also a member of the Supreme Judicial Council (SJC), and Roohul Amin Khan.

Justice Mussarat Hilali is likely to resume the charge of the high court chief justice in April till August 7 when she is expected to retire, Express Tribune reported.

According to her profile information given on the website of the Peshawar High Court, Justice Mussarat Hilali received her law degree from Khyber Law College Peshawar University and enrolled as an advocate of district courts in 1983; as an advocate of the high court in 1988 and enrolled as an advocate of Supreme Court of Pakistan in 2006.

She was also the first woman additional advocate general of Khyber Pakhtunkhwa when she resumed the charge in November 2001 which lasted until March 2004.  She was also the first woman appointed as Chairperson Khyber Pakhtunkhwa Environmental Protection Tribunal.

In 2018, Justice Tahira Safdar became the first woman in Pakistan to take charge as a high court chief justice when she was nominated by then-chief justice of Pakistan Saqib Nisar as chief justice of the Balochistan High Court.

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Pakistan stands not just on the brink of an economic disaster today but also faces an imminent meltdown of its state institutions. With each passing day, the Pakistani state looks increasingly dysfunctional. While there is an elected coalition government at the helm, the country appears rudderless. The parliament has been rendered ineffective and irrelevant by the largest opposition party, the Pakistan Tehreek-e-Insaf (PTI) of former prime minister (PM) Imran Khan, staying out of the National Assembly.

Unwilling to enter a dialogue with the government, Imran Khan has been calling for fresh elections, since his ouster through a vote of no-confidence in April last year. The PTI chief had a very public falling out with his patron, the former Chief of Army Staff, General Qamar Javed Bajwa in November 2021, eventually leading up to Khan’s ouster. The rancor between the two has by leaps and bounds since, with Khan dragging General Bajwa over the coals daily. The President of Pakistan, Dr. Arif Alvi – a PTI partisan – has locked horns with the country’s Chief Elections Commissioner (CEC) over the dates for provincial elections that come due in the Khyber-Pakhtunkhwa (KP) and the Punjab provinces, after the PTI dissolved the two assemblies. After the president, the Supreme Court of Pakistan (SC) jumped into the fray over the Election Commission of Pakistan’s (ECP) dithering and ordered various authorities to fix the dates. But in the process, the SC, and especially the Chief Justice of Pakistan (CJP)  made a very controversial public spectacle of itself. Four SC judges openly dissociated themselves from the CJP, effectively expressing their distrust in how he is presiding over the highest court of the land. The development was highly unusual but not unprecedented. In 1997, a majority of SC judges had rebelled against the then CJP, albeit for different reasons.

What is unprecedented though are the palpable divisions in the army brass. The Pakistan army, arguably the most powerful entity in the country, has been an extremely disciplined outfit. Technically, a department of the ministry of defense, the army sees itself as an institution in the Pakistani state structure, which has always acted in unison to preserve its institutional interests. And for all practical purposes, the army is the chief and chief the army. While the decision-making is collective, the COAS is the face of the army’s unbridled power. But when the army decided upon the controlled demolition of its failed hybrid regime experiment, wherein it ruled jointly with Imran Khan, the brass, especially General Bajwa faced criticism from the officer class. In the end, the army went through with dismantling its Imran Khan project but in the process discovered itself to be a divided house. The incumbent COAS, General Syed Asim Munir, whose appointment Imran Khan had cast aspersions over, hasn’t been heard from much. While this could be him keeping in line with the army’s proclamation that it intends to remain neutral in the political matters or a more plausible scenario where the COAS hasn’t consolidated his authority.

Decades of army patronage have helped Imran Khan create not just a devoted public following but also a sizeable following within the civil bureaucracy, judiciary and, above all, the armed forces. The odious potion disparaging traditional politics and politicians, which the army had helped him peddle, was also consumed by its own. Capitalizing on his support in the army rank and file, Imran Khan has continued with his relentless assault on the former COAS Bajwa. Large sections of media, which previously parroted only the official army line, have sided with Imran Khan, drawing some notable but ineffective reprimand orchestrated by the current brass. And case after case, the superior judiciary, which has been the army’s handmaiden for the better part of the country’s existence, has given Imran Khan a kid glove treatment, indicating either a nod from a section of the brass or trying to chart its own course absent a directive from the army. Pakistan is, in effect, a house divided against itself. Add to this volatile mix a resurgence of the home-grown Tehrik-e-Taliban Pakistan (TTP) terrorists, and disaster in near future is writ large.

Most, if not all, the factors contributing to the morass Pakistan finds itself in today, are of the army’s making over the past 65 years, and should be put into perspective, when looking for a way out. While Pakistan was founded on the basis of Muhammad Ali Jinnah’s Two-Nation Theory, as a country for the Muslims of India, not much else about the direction the new state would take was clear. Jinnah, who passed away after year of the country’s founding, was not much of a writer and didn’t leave any written treatise about the national, constitutional, and economic orientation of the nascent state. His thoughts and vision were expressed mostly in his speeches and correspondence. Jinnah’s actions and views – often self-contradictory — were meticulously archived by Jinnah and his associates, but have been interpreted, unsurprisingly, by his detractors and admirers according to their own political, religious or ideological leanings.

In the absence of a clear roadmap, this makes his legacy infinitely negotiable and thus problematic to derive legitimacy from. The debates in the first Constitutional Assembly clearly show that politicians such as Huseyn Shaheed Suhrawardy, Ghaffar Khan and Bhupendra Kumar Datta et al had presciently called for the new state to be a pluralistic and progressive democratic federation of the diverse religio-ethno-national entities it included. Suhrawardy even warned that limiting trade ties with India and levying tariffs on exports would have dire economic consequences. But most importantly, he suggested replacing the Muslim League (ML) with what he called a Pakistan Nationalist League.

On the other hand, Jinnah’s close associates like the first PM Liaquat Ali Khan and scores of clergymen the founding father had gathered in his ML and in the assembly, proposed an Islamic identity for the state, and prevailed. But the bickering ML leaders, large numbers of whom had no electoral base in Pakistan, quickly lost political ground to a combination of the civil-military bureaucracy, out of which the army eventually prevailed.

After the partition of India, Pakistan inherited about one-third of its military and under one-fifth of its population and revenue sources. Being the largest organized entity in the new country’s chaotic polity, the army not only grabbed power in 1958 but also clearly enunciated its vision for the new state based on “Islamic ideology”. The military establishment anointed itself the guardian of not just the physical frontiers of Pakistan but also of the ‘ideological frontiers’ and smeared as anti-Islam and traitor, anyone who would challenge that notion. The usurper junta desperately needed a fortifying cement for the multi-ethnic state that would not just hold the various ethno-national entities in the two wings together but also legitimize and consolidate the military’s controlling position. The army made a conscious decision to transform Pakistan into an ideological, national security state as against a democratic, pluralist nation-state championed by politicians like Huseyn Shaheed Suhrawardy, whom the military had toppled and disparaged. Field Marshal Ayub Khan codified, in writing that the supra-ethnic Pakistani identity was to be Islamic in ideology and anti-India in military orientation, while its economic model would be a quasi-market economy literally financed by the US and western aid. To peddle its version of nation-building without any opposition, the junta cracked down on both the free press and political opposition.

All militaries, however, are uniquely ill-trained professionally and intellectually to rule the complex civilian societies, multi-ethnic states and modern governments, and invariably fall back on civilian collaborators. Discussing this design flaw in the militaries world over, Samuel Finer points out in The Man on Horseback: the role of the military in politics, that “politically the armed forces suffer from two crippling weaknesses, which preclude them, save in exceptional cases and for brief periods of time, from running without civilian collaboration and openly in their own name … one weakness is the armed forces’ technical inability to administer any but the most primitive community. The second is their lack of legitimacy: that is to say their lack of moral title to rule”. And this has rung true in case of every army dictator who has ruled Pakistan.

After an initial rule purely by the junta, Ayub Khan, Yahya Khan, Ziaul Haq and Pervez Musharraf, all brought in a coterie of pliant civilians to run the government. Every single Pakistani dictator resorted to coercing and coopting the superior judiciary, introducing some aberration into the constitution and/or manipulating the parliament to give legitimacy to their rule. From elections heist to fraudulent presidential referenda, from sham devolution of governance to local bodies to raising or appropriating political parties, from martial law to presidential rule, and from a tutelary role to a hybrid regime, the army has tried every trick in the book cling on to power. And predictably the playbook has not changed one bit since the first martial law.

Decades of constant meddling in the political process, tampering with the constitution, and manipulation of the state institutions, however, has had catastrophic consequences. Perpetual political engineering by the army has not just stunted the natural evolution of the state institutions but has made them disfigured and dysfunctional. Visualizing the smaller nations like the Baloch, through the national security lens rather than an equitable rights-based approach, and consequently unleashing a dirty war on them has pushed them to alienation and militancy. Additionally, the army’s use of jihadist proxies to prosecute its warped foreign policy has had bloody domestic blowback in the form of groups like the TTP that have been unleashing terror at home for over a decade-and-a-half.

The military, which is also the country’s leading business enterprise, however, has a vested interest as an economic class that it seeks to secure and perpetuate. It benefits immensely from fomenting discord with Pakistan’s neighbors as that helps it not only retain its preeminent position as the arbiter of national interest and security but a direct beneficiary of the domestic defense budget allocations and foreign military aid.

Perpetual political engineering by the army has not just stunted the natural evolution of the state institutions but has made them disfigured and dysfunctional.

The national security state façade is built at the expense of economic growth and diverts resources from health, education and social welfare sectors and tramples upon civil liberties and provincial autonomy. But while the army would seek to preserve its powerful position in Pakistan’s polity, the virulent mutations it has introduced into the state structures over the past decades, and especially during its hybrid regime experiment with Imran Khan, have compounded exponentially. The rot in the organs of the state is deeper than anyone thought, and it has put their viability into question. A fundamental reason that had kept the army’s four martial law regimes and a near-uninterrupted tutelary status afloat was the largesse received primarily from the US as an ally during the Cold War and the so-called War on Terror, to a lesser extent from Saudi Arabia and Gulf Sheikhdoms for mercenary duties, and later on from China for serving as a client counterweight to India. With the windfall from all these patrons effectively drying out over the past several years, the ugliness of the praetorian ventures has been laid bare. The tiff between Imran Khan and General Bajwa came to light after their bickering over the appointment of the Inter-Services Intelligence (ISI) director, but it truly had started over the country’s coffers drying up when the international gravy train came to a grinding halt.

The situation as it stands today is untenable. Pakistan looks down an economic and political abyss. Problems are myriad and solutions far and few between. It would take a herculean effort on part of the political parties to first come together to take stock and then bring the public at large, onboard to understand the gravity of the complex the crises the country is in. The political effort would have to be geared towards demanding of army to put its money where its mouth is. The army has proclaimed that it has decided to stay neutral and not meddle in the political affairs.

But that is not enough. Both the former army chief, General Bajwa and his ex-chief spook, Lt. General Faiz Hameed have confessed to violating the constitution and installing their blue-eyed boy Imran Khan in the high office. Before that, the duo had the orchestrated, in connivance with the superior judiciary, the disqualification of the erstwhile PM Nawaz Sharif on cooked-up corruption charges. In addition to that, their hands are smeared with the blood of the Baloch and illegal detentions of the Pashtun nationalists. The army could show the veracity of its words by bringing the two to book. The chances are, however, slim to none that anything of the sort would transpire. On the contrary, the army might actually go back on its word and consider an overt intervention if it decides that its institutional imperatives to preserve and perpetuate its preeminence demand such a drastic move.

Samuel Finer has discussed that a military putsch is generally a function of and an interplay between an army’s disposition to intervene vis-à-vis the opportunity existing on the ground for such intervention. Pakistan’s history has shown that its army has always maintained a relentless disposition and readiness to intervene. It has seized the opportunity when one popped up or manufactured one if none existed. The current political instability is reminiscent of the 1976-77 bitter feuding between the then PM Zulfikar Ali Bhutto and the opposition parties, which culminated in General Ziaul Haq taking full advantage of the chaos and imposing martial law. While the economic viability and international acceptance of a martial law regime today would be questionable and make such intervention less likely, it might serve to consolidate the incumbent COAS’ rather precarious position within the brass and rally the army behind him. Another wild card is the judiciary, which while appearing to side with Imran Khan currently, may eventually cast its lot with the army when push comes to shove.

The politicians, especially those in the coalition, have to put their house in order to preempt and stymie any adventurism. To bring Pakistan back from the brink requires a political will and capacity of the Himalayan proportions, which the incumbent civilian dispensation seems to lack. It would, however, behoove them to at least try to build a consensus for a new charter of democracy that calls for holding the previous putschists and their collaborators among the judiciary, bureaucracy, and politicians accountable.

There are already calls from the senior coalition partner Pakistan Muslim League-Nawaz (PML-N) to court-martial the former ISI chief, General Faiz Hameed, and proceeding against the complicit judges. But as General Hameed has himself declared, he was but an operative – albeit a powerful one – in a grand institutional scheme authored by the top brass and commissioned by General Bajwa. Instead of punitive measures against him, the political leadership should call for a truth and reconciliation effort, the forum for which should be the parliament. But that would require a massive political heavy lifting and vigorous narrative-building, for which the current government does not have the intellectual bandwidth and institutional wherewithal. There does not appear to be any organic grassroots effort on the horizon either that would hold the civil and military elite’s feet to the fire. Sections of the intelligentsia have made the clarion call, but absent a political response to it, prospects of bringing Pakistan back from the brink are dim.

Mohammad Taqi

The writer is a Pakistani-American columnist and commentator. He tweets @mazdaki.

The post To Bring Pakistan Back From The Brink, Military Must Put Its Money Where Its Mouth Is appeared first on Dissent Today.

According to the bill, titled Criminal Laws (Amendment) Act, 2023, whoever makes, publishes, circulates any statement or disseminates information, through any medium, with an intention to ridicule or scandalise the judiciary, the armed forces or any of their member will be guilty of an offence punishable with imprisonment of up to five years or with a fine which may extend to Rs1 million or with both.

The legislation also proposes that the offender be arrested without a warrant and calls for the offence to be non-bailable and non-compoundable which could only be challenged in a sessions court.

During the cabinet session, the lawmakers, mainly from Pakistan People’s Party’s, within the ruling alliance contested the proposed law.

They termed the proposed amendments to the penal code against basic human rights.

The lawmakers were of the view that the proposed legislation then should cover every segment of society, including politicians, and media persons among others.

According to reports, PPP leaders Sherry Rehman, Naveed Qamar, and Hina Rabbani Khar were among those who strongly opposed the proposed bill. Meanwhile, Khawaja Saad Rafique was the only Pakistan Muslim League-Nawaz lawmaker to have opposed the bill.

After the opposition from the cabinet members, Prime Minister Shehbaz Sharif formed a cabinet committee to decide the matter.

The proposed amendments have come under harsh criticism from human rights activists, as well as lawmakers.

News Desk

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