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Opinion

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January 11, 2015

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Military courts

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Legal: Forty-two years ago, the constitution of the Islamic Republic of Pakistan prescribed progressive separation of the judiciary from the executive. Forty-two years ago, the constitution fixed a time limit for such separation. The time limit expired in 1987. The Objectives Resolution of the constitution guarantees the independence of the judiciary. And separation of the judiciary from the executive is the cornerstone of the independence of the judiciary. And “unless the judiciary is independent the fundamental right of access of justice cannot be guaranteed”.
Lo and behold, in 2015, Pakistan will have a uniformed executive functionary dispensing ‘justice’.
Politics: The ugliest of the many ugly faces of Pakistani democracy has been on display. The 342 members of the National Assembly do not represent the 45,388,404 Pakistani voters who voted for them. Under the 18th Amendment each and every one of the 342 must vote exactly as instructed by his or her elected or unelected party head (or resign from his seat or be unseated).
The 104 members of the Senate do not represent the electoral college that voted for them. Under the 18th Amendment each and every one of the 104 must vote exactly as instructed by his or her elected or unelected party head (or resign from his seat or be unseated). That in essence is constitutional protection to the ugliest of the ugly electoral dictatorship.
The bottom line: All the GHQ had to do was cajole, counsel and discipline Nawaz Sharif (189 MNAs), Asif Zardari (46 MNAs) and Altaf Hussain (24 MNAs) to ‘constitutionally’ get their military courts. Senator Raza Rabbani was in tears but isn’t he the one who co-authored and then piloted the 18th constitutional amendment?
Doctrine of necessity: In 1965, we lost 3,800 Pakistani lives. In 1971, we lost 9,000 Pakistani lives. Over 2001-2013, we have already lost more than 56,000 Pakistani lives. We are undoubtedly in a state of war. The

monsters who attacked the Army Public School are not ‘ordinary criminals’. The monsters who attacked the Army Public School are war combatants. These monsters and their abettors cannot be tried in any civilian criminal justice system. These monsters and their abettors must be tried in military courts as enemy combatants. Doctrine of necessity is the “basis on which extra-legal actions by state actors – which are designed to restore order – are found to be constitutional.”
Lessons: The elected prime minister of the Islamic Republic of Pakistan opted for negotiations when the state needed and the society wanted war. On June 15, Pak Army declared war – and the prime minister lost political relevance. Pakistan’s judiciary acquitted 14,115 persons in terrorism-related cases and 10,387 were granted bail when the state needed and the society wanted terrorists to be punished. Pakistan’s judiciary, as a consequence, lost its relevance to the system.
Wargaming: What if the Supreme Court strikes down the 21st Amendment (or any parts thereof)? For the record, all judges have taken oath to “preserve, protect and defend the constitution….” The GHQ must have done wargaming. Is there a hard coup in the GHQ’s conflict simulation analysis?
Sunset clause: The military courts ‘shall cease to exist’ after two years. Will they? Will the PM learn from his mistakes? Will the judiciary learn from its mistakes?
Who said, “If I had to live my life again, I’d make the same mistakes, only sooner?”
The writer is a columnist based in Islamabad. Email: [email protected]
Twitter: @saleemfarrukh

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