New Age Islam
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Current Affairs ( 7 Jan 2015, NewAgeIslam.Com)

Military Courts in Pakistan: A Backwards March



By Dr Mohammad Taqi

January 08, 2015

For Pakistan, the year 2014 ended with the tragedy at the Army Public School (APS) Peshawar and 2015 has been ushered in with inauspicious tampering with the Constitution. The 21st Constitutional Amendment Bill and the Army Act (Amendment) Bill 2015 were approved unanimously by both houses of parliament within a matter of hours to provide constitutional cover to summary military courts. Parliament seems to have shot itself in the foot by approving an abhorrent mutation to the Constitution that allows the establishment of a parallel judicial system. Adding an aberration in the name of national security ranks right up there with the Second Amendment that excluded the Ahmedis from the pale of Islam and constitutionalised their persecution, the Eighth Amendment that provided a military dictator the power to dissolve the National Assembly, and the 17th Amendment that gave constitutional protection to yet another dictator’s actions after he usurped power. However, the cast of characters that approved the current amendment makes it so much more painful as all the parties voting for the law have remained at the receiving end of military justice at some point in their political trajectory.

The ruling PML-N has been bruised and battered over the last several months through the sit-in (Dharna) and shutter-down protests in various cities by the Pakistan Tehreek-e-Insaaf (PTI). According to the PTI’s former president, Mr Javed Hashmi, the party’s protests had been prodded by elements associated with the security establishment. I have argued in this column that the PTI protests were designed to weaken elected Prime Minister Nawaz Sharif’s hand vis-à-vis the security establishment and to position the latter as the arbiter of political disputes at home and firmly in control of foreign policy. Discussing the military’s tutelary interventions, Professor Aqil Shah notes in his recent book, The Army and Democracy, “Whether a military has actually internalised the norm of political neutrality or adheres to it only conditionally is particularly revealed during political crises.” Professor Shah accurately writes that while the military has not intervened overtly, “its institutional behaviour between 2008 and 2013 reveals that it reserves the right to abandon its declared political aloofness and intervene in governmental affairs whenever the high command determines that the civilian government is not acting properly, and that its actions or performance are undermining political stability, military institutional autonomy and national security. The military’s tutelary mentality has since reasserted itself in its efforts to arbitrate political conflict, exercise oversight of the government, preserve its corporate autonomy and skirt the rule of law.”

The manufactured political crisis in 2014 sprang directly from the establishment being gung ho about retaining this tutelary role; the tragedy at APS Peshawar provided it with an excuse to try to legitimise its interventions. The way the military leadership has been openly calling the political shots and virtually presiding over meetings — held on military premises — with elected representatives has lifted the fig leaf that was in place from 2008 to 2013. Like the national security disasters from the 1971 Dacca debacle to the 2011 US raid that killed Osama bin Laden, the security establishment has skirted accountability for the APS tragedy. However, unlike 1971 and 2011, the massacre at the APS did not even entail an inquiry. Instead, the blame has been diverted to the judiciary. Ironically, a slew of hangings have been carried out over the last couple of weeks punishing the terrorists who had been convicted through the same judicial system over the last several years. No civilian leader deemed it necessary to point that out or that the military courts are not the antiterrorism panacea they are being sold as. As a Pashto adage goes: “Sa Jranda Wurana Aw Sa Danay Lamday” (The mill may be faulty but the oats are wet too). The military establishment is certainly used to getting its way but a pliable political leadership too has clearly failed to protect its rightful domain. If the PML-N government, like its predecessor the PPP, thinks that appeasement would get it off the hook, it is in for a rude awakening. Those who called off the PTI’s protests are likely to unleash them again soon.

Sadly, the PML-N’s crumbling set off a domino effect within parliament. The MQM and the PPP were next to fall in line on the military courts issue, honourable exceptions among its parliamentarians notwithstanding. The Awami National Party (ANP) and the Pakhtunkhwa Milli Awami Party (PMAP), with their limited parliamentary presence, were unlikely to take on the military establishment once the others had been cowed down. Ironically, pro-establishment parties like the Jamaat-e-Islami (JI), Maulana Fazl ur Rahman’s Jamiat-i-Ulema-e-Islam (JUI-F) and the PTI weaselled their way out of voting for the military courts on one pretext or the other while the PML-N, PPP, ANP, PMAP and MQM were left holding the bag. Abraham Lincoln once said: “I walk slowly but I never walk backwards.” The Pakistani polity unfortunately marched backwards and that too on the double. The gains of the last six years in civil-military relations were squandered within a matter of days. Where a firm, proactive leadership was needed to provide alternatives — through urgently reforming the existing justice system — to the proposed military courts, politicians opted to roll over and play dead. Not as much as a clause to protect minors from being tried in the summary military courts was proposed. The haste shown in defacing the Constitution is bound to haunt the democratic dispensation in the years to come.

The way the narrative was built through the media after the APS attack smacked of the security establishment’s intent to deflect blame to outside powers, the judiciary and politicians at home. Unfortunately, the political leadership failed to stymie the effort that was clearly deployed to undermine civilian institutions. The judiciary had previously annulled the military courts in 1999 but an act of parliament makes it nearly impossible for the courts to undo the damage this time round. It is certainly parliament’s prerogative to amend the Constitution but truncating fundamental rights, including the right to a fair trial and judicial due process by introducing anomalies in the Constitution is not the way to go about exercising that privilege. The political leadership is not just marching backwards but has also opened democracy’s flank to further tutelary and even direct military interventions.