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Opinion

January 8, 2015

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The power narrative

It is was ironic to see Prime Minister Nawaz Sharif, the head of the civilian setup and himself toppled in a 1999 coup, making an impassioned plea to the All-Parties Conference for empowering military courts to try civilians charged with terrorism. It was also ironic to see Asif Zardari, who positions himself as the nation’s foremost icon of democracy, backing the proposal.
Imran Khan, the self-styled maker of a ‘New Pakistan’, was never expected to show defiance – all his sound and fury evaporates into thin air where the other side is even slightly suspected of hitting back. All said, discretion is the better part of valour. The rest had to make a virtue of necessity – their being on the other side would hardly have tipped the scales.
The existing law, constitutional as well as ordinary, didn’t allow military courts to try civilians. So both the constitution and the relevant statute (Army Act 1952) had to be amended. The scope of the Army Act has been broadened to allow military courts to try any person allegedly involved in acts of terrorism. The federal government has been authoriaed to transfer proceedings pending with any court in respect of any person charged with terrorism to a military court. The amended Army Act shall remain in force for two years.
The 21st Amendment gives constitutional cover to such changes by amending Article 175 and the First Schedule of the Constitution. Article 175 governs the jurisdiction of the superior judiciary. Clause (3), which provides for separation of the judiciary from the executive, has been amended to provide that provisions of Article 175 shall have no application to the trial of a person “who claims, or is known, to belong to any terrorist group or organization using the name of religion or a sect.”
The First Schedule contains laws that are exempted from the operation of Article 8 Clause (1) and (2) of the constitution. Article 8 forms part of Chapter 1, which confers a number of

fundamental rights, of both civil and political nature, upon citizens. These include the right to fair trial.
In view of the inviolability of fundamental rights, Clause (1) of Article 8 declares that any law inconsistent with such rights shall be void. Clause (2) prevents the state from making any law which ‘abridges’ or ‘takes away’ any of the fundamental rights. However, Clause (3) of Article 8 creates some exceptions to the inviolability of fundamental rights. One of these exemptions is the laws mentioned in the First Schedule of the constitution.
The 21st Amendment adds the following laws to the Part I of the First Schedule: The Pakistan Army Act 1952; The Pakistan Air Force Act, 1953, The Pakistan Navy Ordinance, 1961; and The Protection of Pakistan Act, 2014. This means any provision contained in these laws shall not be declared void on the ground of its being inconsistent with fundamental rights.
There are arguments both in favour of and against the military courts. First, the arguments in favour: Pakistan is in the throes of extraordinary circumstances, which warrant out-of-the-ordinary measures. Entrusting military courts with the trial of terrorism related offences represents one such response.
The civil courts, for one reason or another (corruption, excessive workload, security problems, etc) had failed to try alleged terrorists expeditiously. As a result, miscreants would in most cases go scot-free thus planning and executing more acts of terrorism. Since military courts will be free of such problems, we would see a higher number of convictions in a shorter period.
The counter-argument is that, instead of vesting the military with the power to try civilians, the government should have opted to overcome the deficiencies of the civil courts. Not only that, the setting up of the special military courts would add to the power of the men in uniform, which in turn would undermine civilian institutions and democracy.
If the expanded version of the military courts doesn’t bode well for democracy and rule of law, why did the political leadership support the move? Why wasn’t there a single voice of dissent in the APC? Yes, at the time of voting on the amendments in parliament, a couple of religious parties chose to abstain. But the abstention was occasioned by peculiar concerns, which had nothing to do with democracy.
There’s more than one answer to such questions. Politicians, by and large, don’t want democracy, much less rule of law; they want power. A large section of the current breed of politicians, like their predecessors, knows it can taste power courtesy the armed forces only. Such politicians would always clamour for a greater role for the khakis in the functioning of the government. Far from resisting any move to enhance khaki power, they will go out of their way to support it.
The political leadership currently at the helm in Islamabad would have opposed the move. But they are on a sticky wicket, playing just to ward off hostile spells and in the process making one concession after another.
Political parties like the PPP, known for resisting moves to enhance khaki power, are presently in disarray. Expecting them to live up to their reputation is asking too much. Even if the PPP were strong, with a ‘pragmatic’ Zardari calling the shots, it wouldn’t have said ‘no’ to military courts.
Most of the political parties, notably the PTI and the PML-N have been staunch supporters of sorting militancy out through talks with the militants on the premise that there are good Taliban and bad Taliban, and the former can be won over by offering them an olive branch.
The PTI, in particular, has remained a frontline Taliban apologist. Nearly a week before the Peshawar tragedy Imran Khan had declared that had he been prime minister he would not have sent the troops to North Waziristan. With the Peshawar incident exploding the pro-Taliban narrative, the likes of Imran Khan were left with little ground to oppose the special military courts.
One of the paradoxes of democracy is that often the government has to shun populist demands and take unpopular decisions. Adopting a course like this, however, is easier said than done. A speedy trial of miscreants, leading to their conviction, has been a populist demand. In the wake of such a colossal, nerve-racking tragedy as the carnage of the children in Peshawar, resisting this sort of demand became an enormously difficult proposition for the government.
Finally, we have the familiar narrative that left to themselves the ‘corrupt-cum-incompetent’ politicians are incapable of steering the ship of the state. And when it is a question of warding off an existential threat, it would be suicidal to trust them completely. The logical conclusion is to look to a far more competent and cleaner breed. Such a narrative has aided the establishment of special military courts, which in turn will strengthen the narrative.
The writer is a freelance contributor.
Email: [email protected]

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