The recently passed 21st Constitutional Amendment – which authorizes the setting up of military courts (albeit with a sunset clause of two years) to conduct speedy trials for heinous, terrorist acts by individuals – has generally been greeted with a sigh of relief. The public confidence in the new law owes to the fact that more than 50,000 innocent people have lost their lives to terrorism in the last few years. There are, broadly speaking, two separate arguments advanced by two prominent constitutional experts of Pakistan in support of the amendment. Aitzaz Ahsan and Salman Akram Raja, both leaving a permanent imprint on the corpus juris of Pakistan, have gone public to endorse the idea of military courts but for seemingly different reasons, although they may overlap and complement each other when analyzed in detail.
The main thrust of Aitzaz Ahsan’s argument is based on the circumstances or the state of war premise. According to him, since Pakistan is in a state of war, therefore, such extreme measures are justified for a limited period of time and hence there is no need for a constitutional amendment. In other words, the question is that of survival of the country rather that of an academic debate on whether the constitution, as interpreted by the Supreme Court, strictly speaking, permits the operation of the proposed military courts or not impinging on the independence of judiciary and the right to fair trial and due process of law as guaranteed in the constitution. Quite apart from the legality of military courts, it has to be said that such an extreme measure is a damning indictment of our criminal justice system for failing to successfully put in place a confidence inspiring hierarchy of criminal trial courts.
Amnesty International and other global human rights organizations have consistently opposed the idea of military courts, as such measures, however justified, have invariably resulted in considerable erosion of human rights. According to them, such anti terrorism laws are bound to be used to target human rights activists by the government and the military. In the Pakistani context, if history is anything to go by, there is a real danger of such a system being abused to target Baloch activists, amongst other groups.
The United States and European countries enacting similar legislation to keep their citizens safe from the menace of terrorism and extremism is a case of the civilian leadership taking charge and codifying the general consensus prevailing in those countries through their respective elected chambers. In Pakistan, not surprisingly, the nudge and prod have come from the army. If one were to act as the devil’s advocate, one could very convincingly argue that under the garb of state of war argument another era of military overreach is being stealthily foisted upon Pakistan in order to undermine the tottering civilian rule. In an age where military takeovers may have gone out of fashion, the behemoth of military rule is being resurrected very methodically, one could reason.
The will of the people argument has recently been advanced by Salman Akram Raja whose main line of reasoning rests on the fact that public opinion expressed through the parliament is supreme. As per his line of argument, the parliament, which has been historically pummeled, pushed around and undermined by state institutions like the military and the higher judiciary in almost equal measure, must finally be accepted as the supreme law making body in the country. Once the parliament passes a constitutional amendment it must be impervious to any judicial scrutiny. Put another way, politics, especially when it concerns a resounding reflection of an overwhelming public opinion, must not be judicialized. It is interesting to note that very little has been said on the newly carved role the military is set to play at the expense of a palpable erosion of democracy, mirroring a similar response when General Musharraf seized power in 1999.
Coming back to the issue of military courts, the basic argument of the opponents of such courts rests on the basic structure theory which in the classical sense means that the independent judiciary can strike down any constitutional amendment which attempts to change the basic structure of the constitution, namely parliamentary form of government, and the secular nature of the society guaranteeing, inter alia, independence of judiciary. The Pakistani variation of the said theory, expectedly, takes a turn towards religion, reading into it an adherence to the tenets of Islam, giving our judiciary a carte blanche in the shape of a very large discretion to potentially strike down any amendment which falls foul of the Objectives Resolution.
It has to be said that the military establishment may have bailed out the elected government temporarily, but some questions remain unanswered. Is it a sea change in the military mindset or history repeating itself? Zhou En-Lai, the Chinese premiere, once famously quipped when asked what he thought of the French Revolution. “Its too early to tell”. Indeed!
Tariq Bashir is a Lahore based lawyer.
Email: me@tariqbashir.uk
Twitter: @Tariq_Bashir
The main thrust of Aitzaz Ahsan’s argument is based on the circumstances or the state of war premise. According to him, since Pakistan is in a state of war, therefore, such extreme measures are justified for a limited period of time and hence there is no need for a constitutional amendment. In other words, the question is that of survival of the country rather that of an academic debate on whether the constitution, as interpreted by the Supreme Court, strictly speaking, permits the operation of the proposed military courts or not impinging on the independence of judiciary and the right to fair trial and due process of law as guaranteed in the constitution. Quite apart from the legality of military courts, it has to be said that such an extreme measure is a damning indictment of our criminal justice system for failing to successfully put in place a confidence inspiring hierarchy of criminal trial courts.
Amnesty International and other global human rights organizations have consistently opposed the idea of military courts, as such measures, however justified, have invariably resulted in considerable erosion of human rights. According to them, such anti terrorism laws are bound to be used to target human rights activists by the government and the military. In the Pakistani context, if history is anything to go by, there is a real danger of such a system being abused to target Baloch activists, amongst other groups.
The military establishment may have bailed out the elected government temporarily
The United States and European countries enacting similar legislation to keep their citizens safe from the menace of terrorism and extremism is a case of the civilian leadership taking charge and codifying the general consensus prevailing in those countries through their respective elected chambers. In Pakistan, not surprisingly, the nudge and prod have come from the army. If one were to act as the devil’s advocate, one could very convincingly argue that under the garb of state of war argument another era of military overreach is being stealthily foisted upon Pakistan in order to undermine the tottering civilian rule. In an age where military takeovers may have gone out of fashion, the behemoth of military rule is being resurrected very methodically, one could reason.
The will of the people argument has recently been advanced by Salman Akram Raja whose main line of reasoning rests on the fact that public opinion expressed through the parliament is supreme. As per his line of argument, the parliament, which has been historically pummeled, pushed around and undermined by state institutions like the military and the higher judiciary in almost equal measure, must finally be accepted as the supreme law making body in the country. Once the parliament passes a constitutional amendment it must be impervious to any judicial scrutiny. Put another way, politics, especially when it concerns a resounding reflection of an overwhelming public opinion, must not be judicialized. It is interesting to note that very little has been said on the newly carved role the military is set to play at the expense of a palpable erosion of democracy, mirroring a similar response when General Musharraf seized power in 1999.
Coming back to the issue of military courts, the basic argument of the opponents of such courts rests on the basic structure theory which in the classical sense means that the independent judiciary can strike down any constitutional amendment which attempts to change the basic structure of the constitution, namely parliamentary form of government, and the secular nature of the society guaranteeing, inter alia, independence of judiciary. The Pakistani variation of the said theory, expectedly, takes a turn towards religion, reading into it an adherence to the tenets of Islam, giving our judiciary a carte blanche in the shape of a very large discretion to potentially strike down any amendment which falls foul of the Objectives Resolution.
It has to be said that the military establishment may have bailed out the elected government temporarily, but some questions remain unanswered. Is it a sea change in the military mindset or history repeating itself? Zhou En-Lai, the Chinese premiere, once famously quipped when asked what he thought of the French Revolution. “Its too early to tell”. Indeed!
Tariq Bashir is a Lahore based lawyer.
Email: me@tariqbashir.uk
Twitter: @Tariq_Bashir