The ‘doctrine of necessity’

The landmark Supreme Court (SC) judgment validating parliament’s enactment of laws authorising trials of terrorists by military courts was widely hailed throughout the country. Greeted with a sigh of relief, public opinion registered a massive surge of hope and aspiration. The SC ordered that the military courts adopt the basic principles and procedures of a fair trial for orders and sentences. Subject to judicial review by the superior courts, the legal position of their judgements will not be radically different from what the customs or tax tribunals are subject to.
In keeping with the overwhelming public opinion, the plurality SC judgement avoided direct conflict with the army, the government and a unanimous parliament while explicitly addressing the fears that military courts could keep on enhancing their jurisdiction by observing that “trials of civilians by court martial are an exception and can never be the rule”. In his dissenting opinion, Justice Saqib Nisar quoted the US SC judgement in the “Marbury vs Madison case”, which adroitly mixed judicial innovation with judicial pragmatism as “an act of high judicial statesmanship”.
The Mian Nawaz Sharif government deserves credit on two counts: (1) taking cognizance of the deficiencies in our law enforcement and judicial system by bringing in military courts for a limited period within defined constitutional parameters to ensure the rule of law being taken to its logical and practical conclusion, and, as such, (2) heading off inevitable autocratic rule if democratic dispensation from parliament was not forthcoming — the patience of the khakis was wearing thin! Mian Nawaz Sharif personally deserves plaudits for listening to the sane voices in his cabinet, over-riding the machismo of ‘paper hawks’ railing against giving the army space to fulfil its constitutional responsibilities of protecting the country from foes within and without. Thank heavens he has not repeated his October 1999 madness, at least not yet!
Presently inconsistent, the application of the rule of law is at best a theoretical proposition subject to the appearance of the moon; smart lawyers exploit glaring loopholes in the Evidence Act (duly amended) already compounded by weak evidence gathering during police investigation, witness intimidation, indifferent prosecution by a corrupt and inefficient system, and tainted adjudication thereof by a badly compromised lower judiciary. Why spend money on good lawyers when you can spend it more wisely corrupting judges? Combine criminals in politics with governance and what do you get? Murderers will walk free, as was happening openly in Karachi.
Not only will they walk free but some of them have also gotten (and will get) to rule the nation. Prima facie caught red-handed for smuggling and money-laundering, fashion model Ayyan Ali, after four months of courtroom and media drama, is now portrayed as a victim by sections of our media rather than as an accused.
Terrorism of any kind depends upon money sources; eliminating the source of such funds is crucial to eradicating terrorism. Organised crime maintains bank accounts and carries out money laundering in connivance with bank officials manipulating the banking system. These are used to purchase weapons, explosives, make identity documents, transportation costs, safe houses, numerous miscellaneous logistical requirements not excluding surveillance of potential targets, obtaining of information and bribing of local police officials.
For the justice delivered by military courts to have credibility, the military must submit itself to self-accountability. “Dismissing” a major general, and giving “severe displeasure” to a Lieutenant General, General Raheel Sharif’s decision in the National Logistics Cell (NLC) scam was spontaneously welcomed throughout Pakistan and applauded in the army. Why did Kayani sit on this enquiry for over three years? The vast real estate holdings and other assets of a few scoundrels are no secret; did they accumulate their enormous wealth commuting their pensions and ‘kitchen money’ saved by their wives? The nepotism and corruption of a handful of Musharraf’s generals has tainted the uniform; a crook is a crook whatever his rank. General Raheel Sharif acted with great courage in putting the NLC scam behind us. A handful, along with their kith and kin, still require accountability, most notably Kayani’s two very talented brothers.
One hopes that the rumours of the army resurrecting Musharraf politically with the support of the popular Mustafa Kamal are not true. It would be a catastrophe for the army and the country to try and go back into the quicksand of the murky Musharraf past. One’s personal association notwithstanding, the author of the National Reconciliation Ordinance (NRO) is the major reason for this country being in the mess it is in today. To wipe the stain from the uniform our brave soldiers wear, and are frequently dying in, nepotism and corruption must be made examples of. Raheel cannot dishonour their shahadat (martyrdom) by allowing such scoundrels to continue living a life of tax-free luxury. The sacrifices our brave soldiers have given allow us instead to reach for the future, for our children and their children.
Justice Saqib Nisar talked about the lack of self-accountability within the judiciary, there being no parallel in the world for a judiciary appointed by the judiciary and answerable to the judiciary; the general rule being that the superior judiciary is answerable to the people. The dissenting justice noted that no judge of the superior court has ever been prosecuted in a criminal court. The judiciary in Pakistan, having a uniquely privileged position constitutionally, a creation of the Constitution and not above it, its conduct must be above board while exercising great powers with restraint and wisdom.
Our lordships may camouflage the reasoning behind their judgement in legal language, exceptional circumstances forcing the SC to adopt the much-maligned ‘doctrine of necessity’. The ordering of judicial review to ensure meeting the ends of justice has opened a door (or is it a Pandora’s Box?) to legal challenges to judgments delivered by the military courts. Unless parameters are unambiguously qualified, if challenges proliferate and overwhelm the superior judiciary, the whole exercise of rendering swift justice becomes infructuous and therefore meaningless. The SC, having established a plurality precedent, what will then prevent the military for opting for the ‘doctrine of necessity’ out of sheer frustration?

The writer is a defence analyst and security expert