The decision by the Supreme Court to uphold the military courts indicates its rapprochement with the Army, and may mean not only a hesitation to apply the Salient Features doctrine, but also a re-establishment of the military-judiciary nexus that allowed the validation by the Supreme Court of all the four martial laws imposed since 1958. By the decision, the Supreme Court did establish a jurisdiction of a kind over military courts, by allowing an appeal from them to it.
The Supreme Court had taken the unusual, but not unprecedented, step of fixing the case before the Full Court of all 17 judges. The decision, 11-6, was comfortable, but not unanimous. The decision was conservative, as it did not tread into the dangerous ground of overturning constitutional amendments that had been properly passed by Parliament. The Constitution itself clearly prescribes the ousters of all courts from Parliament, but the Indian Supreme Court has evolved a salient features doctrine, which has been quoted with approval by the Pakistani Supreme Court, which prevents even the Parliament from changing the salient features of the Constitution. A necessary corollary has been that the Supreme Court has had to define those features. One of those features is an independent judiciary, and the Supreme Court in its previous judgements has been a fierce guardian of this, to the extent that it has examined the question of how far the judiciary has been left independent by various bouts of military rule. This has extended to the Supreme Court prescribing how judges of the superior judiciary are appointed, with the mechanism of the Judicial Commission effectively taking this power away from the government.
However, the doctrine of necessity was once again urged upon the Court to explain why the government was obliged to opt for military courts as the solution to the terrorism problem. It is worth noting that the government sees the military courts as temporary, implying that it will not institute the reforms the civilian judiciary needs. Not only will it avoid spending money that way, it will also avoid making permanent changes to the judiciary. That these permanent changes are needed anyway is another matter. The doctrine of necessity was the extension of Kelsen’s doctrine, applied to international law that any government that held office had to be accepted by other states as legitimate. This was rejected by the Supreme Court with Mr Justice Iftikhar Chaudhry as Chief Justice, which declared that such interventions were extra constitutional, and ordered the latest coupmaker, Gen (retd) Pervez Musharraf, to be tried for treason. That trial began, but has now apparently petered out. The sweeping taboo against any trial of any generals has been reduced by the recent court martial of a retired lieutenant general and a retired major general in the NLC scam, for which they had been convicted and given sentences short of jail time. There is still apparently a taboo on generals having to undergo the humiliation of a trial by a civilian court, or of having to serve time in civilian jails. The verdict came almost as if in time to tell the world that Court Martials were just, and spared no one.
The dichotomy has been established by the government, and apparently accepted by everyone that while civilian courts are craven and corrupt, their military equivalents, the courts martial, are both bold and honest. However, some things need to be factored in. Court martial depend much on the report of the preceding board of enquiry. Civilian courts depend upon the police investigation. Also, court martial depends on the will of senior officers for a verdict. It must not be forgotten that the officers comprising a court martial depend for their careers on their seniors, and often will not risk offending them in the interests of justice, and have been known to ask what verdict was wanted. High court judges may supervise the lower judiciary, but promotions go by seniority, and thus they cannot affect verdicts. They might overturn them on appeal, but only if the cases come to them for hearing. It is true that the courts martial do not have readers touting for bribes, but recent measures have ensured that verdicts are given according to the merits of cases rather than the relative capacities to pay. The main argument seems to be that the military affords more security to judges and lawyers than the civilian courts. One solution would be to improve that security. That does not seem possible, and the military has been delegated the task.
It might be all right for the military to try cases where its own people have been killed, as some of the more horrendous militant attacks have been on military targets, such as the one on GHQ in October 2009. The accused was convicted and given the death sentence by a military court in 2011, but was not executed until December 2014. The moratorium on executions was not the only reason to blame; it had not been in place for the entire period. It is true that trials by military court mean that post-sentencing custody or execution depend on them, but it also means that witnesses need to be protected. The death in a police encounter of Malik Ishaq, the founder of the Ahle Sunnat Wal Jamaat does not provide a solution, though it meant that one of the most ruthless alleged killers of judges and witnesses was no more.
That death shows what is at stake. His death was a simple act of vengeance. Courts exist to provide punishment, as sanctioned by society, or even the Almighty, not to wreak vengeance. It is because of this that the Supreme Court has always tried to prevent interference of any kind from the executive. Military courts were not just about fair trials, but about making sure that militants did not get away. Civilian courts have a painstaking regard for fair trials, and try to ensure that there is no shadow of doubt in the conviction. That is particularly so in capital cases. The Supreme Court has turned itself into a forum for appeal for that reason. It wishes to ensure that there is some sort of civilian judicial oversight over the military courts, not just because it does not trust them to do justice, as because it wishes to preserve the arrangement whereby it has jurisdiction over all decisions.
It is this same judicial oversight it wished to preserve in military rule, which also included the setting up of military courts to try civilian offences. It might have slipped the public memory that the 1981 PCO and the resulting purge of the judiciary came about because the Supreme Court, which had validated the 1977 Martial Law and also the hanging of the ousted Prime Minister, had found that military court convicts could appeal to the civil courts. However, this has probably not slipped the institutional memories of either the judiciary or the military. The military has long wanted courts free of civilian ‘interference.’ It has now got it, with the Supreme Court’s blessing.