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January 11, 2015
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Political theatrics

Opinion

January 11, 2015

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Speaking at a press conference on January 3, Interior Minister Nisar Ali Khan said that the proposal to set up military courts for speedy trial of terrorists, which parliament formally approved three days later through a constitutional amendment, was not in any manner an expression of lack of confidence in the existing judicial system. Yet, that is precisely what it is, and Nisar surely knows it.
The truth is that our judicial system is not just deeply flawed, it is broken. Criminal as well as civil cases drag on for years before reaching a conclusion. Like the political system and the administration, the lower and mid-level judiciary is riddled with incompetence and corruption. Police investigations and prosecution are shoddy and miscarriage of justice is common. The judicial system is also heavily tilted in favour of the rich and the powerful and it has often been abused by governments in power for political purposes. In the case of terrorism suspects, there is the added problem that it provides no protection to witnesses and judges from threats and intimidation by the accused. Because of this, the rate of conviction in terrorism cases is very low.
It is no secret that the decision to establish military courts to try terrorism cases was taken under pressure from the army. At the marathon APC meeting on December 24, the army chief told the assembled political leaders that many of the terrorists captured by the army during and after the 2009 Swat operation had been acquitted and freed by the civilian courts. He reportedly warned that if this state of affairs were to continue, the ongoing military operation in North Waziristan would be “of no use”.
The message was clear if also somewhat blunt. Raheel tried to make it palatable by giving the assurance that only “jet-black terrorists” would be tried by the proposed military courts and that too after approval by the federal government. He also told the political leaders that the military’s legal

system had its own checks and balances to guard against denial of justice.
The starkness of the army chief’s message and its sugar-coating had the desired effect. The PML-N was the first to fall into line. As the ruling party, it hardly had any other option. Nawaz Sharif announced late that night, on TV, that the political parties attending the meeting had agreed to a 20-point action plan to combat terrorism, including the setting up of military tribunals to try terrorism cases.
Despite the cave-in, the PPP at first still tried to dissociate itself from the decision. In a public speech on December 27, Zardari warned that the proposed new law on military courts could be abused to hound politicians and other civilians and declared that his party would support it only after getting an assurance that this would not be done. However only four days later, on December 31, not being prepared to take the blame for obstructing a law the army wants, Zardari took another somersault and promised his party’s continued support to the government to counter terrorism, “including the setting up (of) military courts”.
It is apparently to accommodate the professed concerns of the PPP over the possibility of politicians being targeted through the military courts that the authorisation given by the 21st Amendment Act is only for the trial of those belonging to “any terrorist group or organisation using the name of religion or a sect”. As a further reassurance, an ‘explanation’ has now been added to the original amendment bill stating that the expression ‘sect’ means a religious sect and “does not include any religious or political party regulated under the Political Parties Order, 2002.”
Despite these concessions, and even after Zardari had come round, some PPP stalwarts continued to voice serious misgivings but none of them chose the honourable path of voting against the law and facing the consequences. Instead, they resorted to theatrics. One even likened himself grandiosely to Aitzaz Hassan, the teenage boy who saved his schoolmates in Hangu from a suicide bomber but paid for this heroic act with his own life. The most eye-catching performance was that of Raza Rabbani of 18th Amendment fame. In a tearful speech in the Senate, he said that throughout his 12 years in the house, he had never felt as ashamed as he did after having voted in favour of setting up military courts.
Rabbani could of course have saved himself these pangs, and the public the heart-wrenching sight of a weeping member of parliament, if he had voted against the proposed law – but he would then have faced the possibility of being expelled from the Senate under the anti-defection clause of the constitution. There is an element of poetic justice in the fact that as one of the authors of the 18th Amendment, Rabbani himself shares responsibility for empowering the party leader to expel a member of parliament who votes against his directives on a constitution amendment bill.
By authorising the establishment of military courts only for the trial of those who “[use] the name of religion or a sect” but not to those who employ terrorist violence for other purposes, the government has predictably opened itself to the charge of applying double standards. It is therefore quite understandable why JUI-F and the Jamaat-e-Islami abstained on the vote in parliament. The JUI-F leader has now announced that it plans to mobilise the masses against the new laws. At the same time, as he confirmed at his press conference last Thursday, the party has no intention of leaving the ruling coalition with the PML-N. It seems that Fazlur Rahman’s umbrage at the government’s failure to accommodate his party’s views, like the display of anguish by some PPP stalwarts at their party’s vote in favour of military courts, has a lot to with political theatrics.
Whatever the political and legal imperatives for the establishment of military courts to try terrorism cases might have been, it is also a fact that the language and concept of the two laws adopted for this purpose – the 21st Amendment Act and the Army (Amendment) Act – leave a lot to be desired. These technical flaws will no doubt come in handy when their constitutionality is challenged in the superior courts, as it no doubt will be.
Also, the hasty and rather secretive manner in which these laws were prepared and pushed through parliament hardly inspires confidence. An amendment to the constitution, more than the other laws, must be openly and thoroughly debated both in parliament and by the public. But the 20th Amendment was passed in exactly four days. It was introduced in the National Assembly on January 3 and passed by the house on January 6 after just two working days with little debate. It was not even referred to the relevant committee, as is usual for all legislation. The shoddily drafted bill was then approved by the Senate within hours the same day without debate and signed into law by the president on January 7. No wonder it is riddled with holes.
This is not new. Two constitutional amendments passed by Nawaz in 1997 during his last ‘heavy mandate’ tenure – the 13th Amendment to strip the president of his power to dissolve the National Assembly and the 14th Amendment which introduced the anti-defection clause – were also rushed through parliament in a hush-hush manner and after suspending the normal rules of business for referring bills to committee. The 18th Amendment as well, which was passed in 2010 during the Zardari presidency and was widely acclaimed by its authors at the time as a landmark achievement, was the result of secret behind-the-scenes deals. It was then quickly rubber-stamped by parliament in a matter of hours without debate.
This has in fact become the new norm. It mainly serves the interests of the party leaders and their hangers-on but has retarded the country’s democratic evolution. The passage of the 21st Amendment last week was another step on this path.
The writer is a former member of the Pakistan Foreign Service.
Email: [email protected]

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