Constitutional Militarization of Judiciary

Con­sti­tu­tion of Pak­istan has been amend­ed for 21st time since its pro­mul­ga­tion in the year 1973. Laws are made to reg­u­late the soci­ety and when­ev­er need­ed, they may be amend­ed for com­pat­i­bil­i­ty with the pre­vail­ing cir­cum­stances. Unfor­tu­nate­ly in Pak­istan, a num­ber of con­sti­tu­tion­al amend­ments have proved to be dis­as­trous rather than bring­ing any good. The exam­ples include Eighth Amend­ment and Sev­en­teenth Amend­ment where­by the par­lia­men­tary char­ac­ter of the con­sti­tu­tion was changed to favor dic­ta­to­r­i­al regimes. Sec­ond Amend­ment is also such exam­ple in which the state took the respon­si­bil­i­ty of defin­ing who is a Mus­lim and who is not. The Amend­ment dis­crim­i­nat­ed against the Ahmadiyya com­mu­ni­ty sub­se­quent­ly lead­ing to their sys­tem­at­ic per­se­cu­tion.

The pub­lic opin­ion on the 21st Amend­ment is sure­ly divid­ed. Though a num­ber of peo­ple are sup­port­ing it, there are oth­er who are vehe­ment­ly oppos­ing it as well. The lat­er include peo­ple from legal fra­ter­ni­ty, politi­cians, reli­gious lead­ers and nation­al­ists. Those oppos­ing it have var­ied rea­sons for doing so. In my opin­ion the con­cerns raised by lawyers and nation­al­ists demand our seri­ous con­sid­er­a­tion.

Accord­ing to the 21st Amend­ment, the appli­ca­tion of Arti­cle 175 of the con­sti­tu­tion, which deals with the estab­lish­ment and juris­dic­tion of supe­ri­or courts, has been barred over the new­ly estab­lished mil­i­tary courts. The mil­i­tary courts will run par­al­lel to the exist­ing judi­cial sys­tem which will effec­tive­ly leave the juris­dic­tion of civil­ian courts espe­cial­ly Anti-Ter­ror­ism Courts (ATC), High Courts, and the Supreme Court, almost redun­dant. The legal fra­ter­ni­ty opines that it will seri­ous­ly affect the dis­pen­sa­tion of jus­tice, right to fair tri­al, and the prin­ci­ple of sep­a­ra­tion of pow­ers.

The nation­al­ists of Sindh and Balochis­tan have even more seri­ous issues with the estab­lish­ment of mil­i­tary courts. They cry that the amend­ment may seri­ous­ly jeop­ar­dize the future of their peo­ple who have been alleged­ly picked up by the intel­li­gence agen­cies. They also believe that the ille­gal and forced dis­ap­pear­ance of the nation­al­ist lead­ers and activists would be giv­en a legal cov­er with­out afford­ing an oppor­tu­ni­ty of fair tri­al as a fun­da­men­tal right guar­an­teed by the Con­sti­tu­tion of Pak­istan.

The con­sti­tu­tion­al amend­ment estab­lish­ing mil­i­tary courts has shak­en the very basis of judi­cial struc­ture. The sup­port­ing view of the 21st amend­ment do not hold any sig­nif­i­cance when it’s looked in the purview of pre­vail­ing laws and exist­ing judi­cial sys­tem. The ques­tion aris­es why do we need a par­al­lel judi­cial sys­tem that con­tra­dicts fun­da­men­tal rights guar­an­teed in the Con­sti­tu­tion while we already had Anti-Ter­ror­ism Courts which were estab­lished with the objec­tive to pros­e­cute alleged ter­ror­ists and those found using religion/sect to cam­ou­flage their nefar­i­ous activ­i­ties.

The 21st Amend­ment has also come to pro­vide a con­sti­tu­tion­al cov­er to the con­tro­ver­sial Pro­tec­tion of Pak­istan Act (PPA) 2014. PPA has been enact­ed with the aim to pro­vide for pro­tec­tion against wag­ing of war or insur­rec­tion against Pak­istan, pre­ven­tion of acts threat­en­ing the secu­ri­ty of Pak­istan and for speedy tri­al of cat­e­go­rized offences falling with­in the ambit of PPA. The Act was passed amid over­whelm­ing oppo­si­tion by the lawyers’ com­mu­ni­ty, politi­cians, and the Baloch and Sind­hi nation­al­ists who feared its mis­use. The 21st Amend­ment and the PPA both have giv­en more pow­er to the already pow­er­ful secu­ri­ty estab­lish­ment.

Pro­tec­tion of Pak­istan Act man­dat­ed the gov­ern­ment to estab­lish spe­cial courts under the Act and direct­ed the appoint­ments of judges who were sup­posed to be civil­ians but noth­ing so far has been done in this regard.

The 21st Amend­ment as well as PPA both being sun­set leg­is­la­tions would cease to have effect after two years from their com­mence­ment. Will they achieve some­thing pos­i­tive? In the light of past prece­dents of mil­i­tary courts, it can be safe­ly said that noth­ing will change unless the crim­i­nal jus­tice sys­tem is reformed and the capac­i­ty of sub­or­di­nate judi­cia­ry is enhanced.

Sep­a­ra­tion of pow­er is one of the car­di­nal prin­ci­ples of democ­ra­cy accord­ing to which every state insti­tu­tion has its spe­cif­ic, con­sti­tu­tion­al­ly defined role to per­form; mil­i­tary to safe­guard the bor­ders, police to act as inter­nal secu­ri­ty war­den, leg­is­la­ture to enact laws, exec­u­tive to imple­ment the laws, and judi­cia­ry to dis­pense jus­tice.

This hasty Amend­ment con­tra­dicts the prin­ci­ple of sep­a­ra­tion of pow­ers by engag­ing mil­i­tary in an affair which does not come under its ambit. Judi­ca­ture has been total­ly barred from what actu­al­ly was its duty to dis­pense jus­tice. All the affairs from exec­u­tive, secu­ri­ty – inter­nal and exter­nal – and judi­cia­ry have been vest­ed in one insti­tu­tion that too for two years. Will they be actu­al­ly able to hang all ter­ror­ists in short peri­od of mere­ly two years? I reck­on, not. Judi­cia­ry, if pro­vid­ed the secu­ri­ty and resources, would sure­ly do much bet­ter than what mil­i­tary courts would do. High hopes from mil­i­tary courts may end up in utter dis­ap­point­ment.