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.