“Men make their own history, but not of their own free will; not under circumstances they themselves have chosen”. — Karl Marx

Faisal Siddiqi

But what if the present judicial actors are not free actors but partial prisoners of circumstances?

Today’s expansive judicial power is rooted in our own judicial history, besides being a global phenomenon.

2007 — a paradoxical revolution: The earlier transitions to democracy, namely 1968-1971 and 1983-1988 were the result of political struggles dominated by politicians using political ideology and mass mobilisation, with the judiciary having an insignificant role in such a transition. In fact, in 1969 and 1983, it was in collusion with the military. But 2007 was radically different because in order to get rid of Gen Musharraf, the politicians used the lawyers/judicial movement to make the transition to democracy. This had two consequences.

Firstly, the leadership of the democratic transition was handed over to the judiciary. The democratic battles against a dictator were not fought primarily through mass political mobilisation but through the process of law with reliance on judicial adjudication. Moreover, between 2007 and 2018, most political battles between politicians have been fought in court and not in the arena of political ideology, political performance and mass mobilisation. In short, it is politicians themselves who created this judicial empire by their existential dependence on it.

Secondly, the ideology which defeated Gen Musharraf was not socialism or some other political ideology concerning the people’s welfare but rather constitutionalism and human rights as defined by the judiciary. The gap left by the poverty of ideology on the part of the political elite was filled by a triumphant judiciary’s ideology of constitutionalism. Therefore, the success of the 2007 democratic transition is also part tragedy for the political elites because the leadership and ideology of this democratic transition has been handed over to the judiciary.

Judicial empire — historical and global: This expansive judicial power is rooted in our own judicial history and is also an established global phenomenon. Firstly, pre-1972, there was a colonial-minded but independent judiciary as it believed not in the rule of law but rather rule by law. Due to this colonial mindset, neither the 1958 nor the 1969 military takeover was judicially challenged as rule by law was always possible under military or colonial regimes. After the political enactment of Pakistan’s first-ever democratic Constitution in 1973, the slow trend of judicial dissent also began against military rule. In 1981, 2000 and 2007, high court and Supreme Court judges unprecedentedly defied military rule by refusing to take the oath of allegiance to martial law. This judicial dissent trend finally led to the shortest martial law in Pakistan’s history in November 2007, lasting less than two months. The present expansive judicial power is also rooted in this history of dissent. Moreover, the present fascination of the high courts and the Supreme Court with constitutional jurisdiction under Article 199 and 184(3) of the Constitution has its roots in the period 1988-90 ie the time of the first suo motu. Since 1988, there has been a steady and continuous increase in judicial adjudication of all kinds of political, economic, social and cultural issues. Thus, the present radical expansion of judicialisation of state and societal issues is deeply rooted in Pakistan’s judicial history since 1988.

Secondly, this trend of ever-accelerating reliance on judicial means for adjudicating core moral issues, public policy questions and political controversies is a global phenomenon. Whether it is South Asian countries like India and Bangladesh, or Latin America countries like Brazil and Costa Rica, or Southeast Asian countries like Korea and the Philippines, or African countries like South Africa or the invention of judicial activism by the American courts, the judicialisation of politics and governance by the judiciary is not a typically Pakistani phenomenon.

Security establishment under constitutional democracy: The democratic and liberal dream was simple: the Constitution and elections would roll back the powerful Pakistani security establishment. But to think that a huge standing army with an existential stake in the budget, a massive intelligence network, a nuclear option under its control, with a vested interest in conflicts in Afghanistan and India, and with huge stakes in the economic and social sphere, could be controlled by the Constitution and elections is nothing but a fantastical delusion.

Once the security establishment realised that it could no longer impose direct military rule because of local resistance and changing global realities, it followed the old advice of all ruling elites that ‘everything needs to change, so everything can stay the same’.

The security establishment has decided not to overthrow constitutional democracy but to reinvent and re-establish itself under it. Two aspects of this reinvention can be elaborated. Firstly, it seems to have ‘forcefully’ convinced both the political elites and judicial elites that for the sake of continuance of democracy and constitutionalism, a strategic silence must be maintained on security-related issues eg silence on alleged human rights violations in operations in Balochistan and on terror, establishment of military courts, and the exemption of military from financial accountability.

The second aspect is the use of perfectly legitimate constitutional means ie legal accountability through the courts, to achieve unconstitutional ends ie military domination. The Memogate and the Panama cases are classic examples of this as both cases involved legitimate legal accountability through legitimate constitutional means but led, unintentionally to domination by the security establishment.

Where constitutionalism weakens civilian rule, where democratic elites perceive an independent judiciary as an enemy and where a powerful security establishment has exempted itself both from democratic and constitutional control, surely Pakistan’s path to constitutional and democratic modernisation will be treacherous and complicated.

The writer is a lawyer.

This story was originally published by Dawn, Pakistan

On the issue of enforced disappearances or missing persons, a kind of media civil war is going on, with the human rights lobby and liberals pitted against the military elite and its intelligence agencies. The human rights lobby and liberals accuse the intelligence agencies of engaging in the immoral, illegal and unconstitutional practice of enforced disappearances with ill intention and impunity. For their part, the military elite and its intelligence agencies accuse the human rights lobby and liberals of, at best, not understanding the necessity of this practice to safeguard national security and, at worst, of acting on a foreign agenda. The two groups question each other’s intentions and neither is willing to accept that both may actually be right in part.

Faisal Siddiqi

Can these opposite positions be reconciled?

Hypocrisy vs denial: With the exception of the principled position taken against all enforced disappearances by the Human Rights Commission of Pakistan, there is a general hypocrisy pervading liberal sections of Pakistani society on this issue. How many liberals have condemned or protested or written about the enforced disappearances of Islamic militants and their sympathisers by the same intelligence agencies? Are they willing to recognise that the overall majority of the disappeared are Islamist militants and their sympathisers and not Baloch activists or liberal bloggers?

What if the military and intelligence agencies are right about detention without trial?

How many liberals are willing to accept that the allegations of Baloch activists that there are 12,000 to 14,000 Baloch missing persons is political propaganda because according to the Commission of Inquiry on Enforced Disappearances (as on December 2015) a total of 3,012 cases were filed, out of which 1,449 have been traced, and even out of 1,390 pending cases, only 125 relate to Balochistan? Even if these figures about Balochistan are underestimated, there is no data showing that the number of Baloch enforced disappearances is more than a couple of hundred. Such hypocrisy is an obstacle to recognising that actually there is societal consensus, among liberals and Islamists, to end all enforced disappearances.

As for the intelligence agencies, can they deny that they have engaged in enforced disappearances in view of the following facts? Firstly, two official Commissions of Inquiry on Enforced Disappearances, in which both the ISI and MI participated, recognised enforced disappearances. Secondly, the report of a Federal Task Force on Missing Persons, of which both agencies were a part, also recognised enforced disappearances. Thirdly, the Supreme Court judgements in the ‘Muhabat Shah’ case and ‘Law and Order Case on Balochistan’ recognised enforced disappearances. Fourthly, an official ISI statement, attached as Appendix I to the book The ISI of Pakistan by Hein G. Kiessling, recognises the practice of enforced disappearances and details efforts made to solve it. Therefore, denial of enforced disappearances by the security apparatus in 2017 is like living in an alternative Trumpian world of invented but fictional ‘facts’.

Ambiguity leads to impunity: Whether it is the operations in the tribal areas or in Karachi or elsewhere, is it not an open secret that one of the key anti-militant strategies adopted by the intelligence agencies is enforced disappearances? There is universal praise by the liberals for Operation Zarb-i-Azb even though it is well documented that this ‘war on terror’ has also involved large-scale unjustified arrests, torture, enforced disappearances and extra-judicial killings. It is this ambiguity of response in not condemning the enforced disappearances of Islamic militants or lukewarm condemnations of the enforced disappearances of MQM militants that both confuses, and provides justification, leading to the rigid approach of the intelligences agencies to continue these practices with impunity.

Towards a compromise: Does our political elite or the parliamentarians know that there are consensus recommendations (ie consented to by both the civilian and military establishment) of the Federal Task Force on Missing Persons gathering dust in the interior ministry? And that there is a draft law on enforced disappearances lying with Nacta based on these consensus recommendations?

The solutions proposed are controversial but realistic. Firstly, we need to rethink the current detention framework under Article 10 of the Constitution; we need more flexible detention laws allowing long-term detention of suspects without trial. Yes, this is not ideal but this will radically diminish illegal detentions/enforced disappearances, torture and at times, extrajudicial killings as a consequence of such enforced disappearances. Without such flexible detention laws, intelligence agencies will not end enforced disappearances.

Secondly, once flexible detentions laws are in force, criminal prosecutions should immediately follow any future cases of enforced disappearances.

Thirdly, there should be legal immunity for intelligence agency officials and other state officials for making full disclosures about missing persons, especially people missing for many years. Moreover, compensation should be paid to the victims of enforced disappearances.

Fourthly, an independent tribunal is needed for deciding enforced disappearances cases with powers to take action against any state official engaged in the practice and with power to award compensation to the victims.

The issue of enforced disappearances is a difficult moral and political one, and we should have the courage to recognise that there are no choices between good and bad solutions in such difficult issues. Rather, the choices are between bad and worse solutions. Therefore, we must make these tough choices.

The writer is a lawyer.
Published in Dawn February 6th, 2017

This story was originally published by Dawn, Pakistan