In an article (https://www.thenews.com.pk/print/447459-a-question-of-justice, March 23, 2019), Babar Sattar, one of the current Islamabad High Court judges, bemoaned the role of the parliament in legitimising military justice through the 21st Amendment. He also came down hard on the senior judiciary, asking whether it will at all uphold fundamentals of adjudication. Let us recall what (Justice) Sattar wrote then:
“The judiciary came under criticism after the APS attack for failing to deter terror and releasing terror suspects. It found an opportunity while stuck between a rock and a hard place: it claimed for itself the power to strike constitutional amendments down while upholding the 21st Amendment and military courts.
“In 2015 military courts were introduced as a necessary evil for a two-year period. The sunset clause was thrown at critics as a guarantee of the temporary nature of this experiment. Many had argued even then that a genie once out of the bottle acquires a life of its own. In 2017, military courts were extended for another two-year period, which now expires at the end of March.
“The debate stands framed even without discussion on the issue: if you are a patriot, you must be pro all things military, including military courts.
“We’ve come a long with since ‘Mehram Ali’, wherein the Supreme Court declared a number of provisions of the Anti-Terrorism Act unconstitutional for being in breach of fundamental rights and foundational principles like separation of powers and independence of judiciary. Read ‘Mehram Ali’ today and you might think it was interpreting a different constitution. It wasn’t. But a change has come about, especially in the last five years. The SC has also set a new trend of constituting JITs comprising serving army officers from the ISI and the MI.”
This happened in 2015. And today, in July 2023, one wonders when exactly did the Supreme Court judges, including their chief, decide to tag along the post May 9 currents, instead of fending off the headwinds with the strength of their constitutional authority.
Interestingly, (Justice) Sattar had led the article off with the following enduring quotation by Georges Clemenceau: “Military justice is to justice what military music is to music.” Clemenceau was a French statesman who led France during WWI and was one of the principal architects of the Treaty of Versailles.
(Justice) Sattar went on to posit some basic questions with regard to the role of the parliament and the senior judiciary in a functional democracy: “The SC can adjudicate, sooner rather than later, the defense ministry’s appeal against the PHC judgment, to determine whether military courts are dispensing justice or revenge based on suspicion. But will it? Our parliament can engage in a meaningful debate about extension of military courts, by summoning from the defence ministry record of trials conducted by military courts so far and determining through application of mind whether the process in place meets basic standards of fairness. But will it? As for the executive, let’s not even ask what it can do and if it will do it.”
With the above concluding paragraph, Sattar had then essentially questioned the ability of the Supreme Court to fairly adjudicate the matter; the efficacy of military courts; and the hopelessness of a self-serving executive comprising politicians and their bureaucratic aides.
Quoting the high-handedness of NAB in those days, the writer had cautioned: “When you hand power to anyone without accountability, its abuse is a certainty. And if you subject NAB to effective external checks and balances, how do you ensure that the vast authority and discretion vested in NAB will be exercised such that it produces the desired consequences in matters of special interest to the state?”
Difficult to guess if Justice Sattar will apply the same old prism if he were to hear to adjudicate a similar case before the IHC.
Will the Supreme Court move a notch up from where it left the issue of military courts in 2015? The collective national conscience is on trial right now; judiciary, civil society, the HRCP, large sections of lawyers as well as civilian bureaucracy — all under the awe of the blitzkrieg.
This article was first published in The Express Tribune. Click here to go to the original.