Milord! But which one?

Published: April 20, 2015

The Supreme Court of Pakistan suspended six death sentences passed by the new military tribunals.

On December 17, 2014 Prime Minister Nawaz Sharif lifted a seven-year moratorium on executions, after the Taliban killed more than 150 pupils and staff during an attack at the Army Public School (APS) in Peshawar. Subsequently, Pakistan’s Parliament passed a constitutional amendment that allows a parallel system of military courts to try terrorists – it was argued that a weak civilian judicial system had failed to bring militants to justice.

Conversely, on April 16, 2015, the Supreme Court of Pakistan suspended death sentences passed by the new military tribunals, until it rules on the legality of the sentences concerning six militants who would have otherwise imminently been executed – the Supreme Court Bar Association has challenged the 21st Amendment that created the military tribunals in the first place. Moreover, given the history of country’s military coups, some political leaders also opposed the amendment as significantly expanding the army’s power under a civilian government.

Although, historically, it has been the Supreme Court of Pakistan that has consistently legitimised interventions by the military into politics as well as succumbed to political pressure from the executive, we may now be witnessing ripple effects of the notable “Lawyer’s Movement” (2007 – 2009) and the 18th Amendment, that laid the foundation of a new era of judicial independence across Pakistan, by way of this suspension.

The suspension is yet another commending step towards the restoration of the “institutional” balance of power between the executive and the judiciary – the “composition” and “independence” of the judicial and executive branch is a separate question. A legislation enforced by the executive has been contested on the basis of contradiction with fundamental rights by the judiciary. While Pakistan’s Supreme Court has previously been reluctant to challenge the executive to enforce fundamental rights, the recent suspension demonstrates an autonomous attitude of the judiciary, thereby strengthening the rule of law in Pakistan.

It is, however, perplexing why historically the executive has constantly allowed for military intervention in key governance areas such as security and foreign relations, paving the way for military coups and thereby derailing the democratic process – military tribunals via the 21st Amendment are yet another example of this. Rather than strengthening its own performance in the aforementioned aspects, the executive has instead endorsed and abetted the military in facets where it has failed to deliver.

Unfortunately, the judiciary has been misused by the executive and the military to advance their own agendas at exclusive points in time – at times to enforce the “doctrine of necessity” and at others to put various amendments into effect, shifting balance of powers between the executive and the military. Needless to say, this has been a result of the composition of the judiciary, where individual judges have not been objective and impartial. Merely, the institutional independence of the judiciary and executive are not enough – there is need for a collective mind-set change of the nation towards the implementation of the rule of law.

While the prevalent civilian government and the army have an understanding of refraining from disrupting the democratic process, it is noteworthy that this so-called “understanding” is between two individuals, Prime Minister Nawaz Sharif and General Raheel Sharif, and not the two institutions. In the absence of concrete steps by the democratic governments to improve its performance on the security front, as well as the promulgation of hard-hitting ad-hoc amendments that enhance the army’s remit of power, we will always run the risk of another potential military regime that could further weaken the civil society. Consequently, it is important to follow the developments in the suspension of the recent executions in the upcoming days, in order to further understand the transformation of the judicial framework, which is likely to play a significant role in the political arena to stabilise the power corridors in Pakistan – no one should be above the law.

Sana Hameed Baba

Sana Hameed Baba

A Bar Professional Training Course (BPTC) student at BPP London and member of Lincoln's Inn. She has been actively involved in youth led initiatives for Pakistan in the United Kingdom and tweets @Sana_H_Baba.

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

  • Parvez

    Absolutely agree…NO ONE SHOULD BE ABOVE THE LAW…especially those who make the law and when those entrusted with implementing it fail to do so without fear or favour, a credibility crisis arises. If one wishes to appear credible …..one has to act accordingly. Respect is earned and never demanded.Recommend

  • MK

    Finally the lamb realised the butcher’s intention. Recommend

  • RA

    well-articulated piece..!Recommend

  • Ahmed Haroon

    For the record the statement ‘While Pakistan’s Supreme Court has previously been reluctant to challenge the executive to enforce fundamental rights, the recent suspension demonstrates an autonomous attitude of the judiciary, thereby strengthening the rule of law in Pakistan’ is grossly incorrect. While the current and previous Chief Justice have restored some sort of sanity to the Court. Their predecessor Mr Chaudhry blew the concept of separation of powers into smirtheens. The obvious vendetta that he carried out against the previous government not only had far reaching impact on country’s functioning not to forget back dated removal of a Prime Minister whose actions are still a legal question mark. It also created precedents which will come to haunt us in years to come.

    What judiciary of Pakistan needs is to start doing their job and giving people justice. What we need to do meanwhile is stop appreciating step which are basically their duty to begin with, Judiciary needs to go a long way in Pakistan before it can be worthy of any praise.Recommend

  • Niazi

    And the courts step in once again to protect extremists that are killing Pakistani’s… After all these are the same courts that find over 99 per cent of all terrorists to be innocent irrespective of the over-whelming evidence against them.. witness the continuing Lal Masjid saga, the lack of “balls” to rein in Mullah Burka, release of Ludhianvi, Sufi Muhammad getting exonerated in case after case.. Do also recall the ringing endorsement given by TTP to former CJ Iftikhar Chaudhry..Recommend

  • Moid

    As noted by the writer, it is imperative that a collective mind-set change take place across the nation. Each and every individual should be equal under the rule of law, regardless of who they may be. And finally, the judicial framework should continue to evolve independently and all facets of the government should work effectively and transparently to ensure that faith is restored in our country’s institutions; only then will we progress as a nation.

    Well written piece.Recommend

  • Parvez

    To Sana Hameed Baba,
    I must say that you are one of the very very few writers that displays the courtesy of even bothering to read the comments and then acknowledging them…….+1 to you.Recommend

  • Sana Hameed Baba

    Thank you Parvez :-) for reading and commenting – it will keep encouraging me to write more often.Recommend

  • SK

    Good post, well done!Recommend