PAKISTAN: Formation of military courts not a solution but an illusion

Yesterday, 6th January 2015, the National Assembly of Pakistan passed an amendment to the Constitution allowing the formation of military courts. The Pakistan Senate adopted the same amendment with a limiting clause that the amendment will be valid only for a period of two years.

In responding to the 16th December 2014 massacre of 148 people, which included 137 children, the National Assembly and the Senate have attempted to create the impression that they are responding to the anger of the people against the failure of the State to suppress terrorist attacks in Pakistan by setting up military courts to deal with cases involving alleged terrorists. Although the Parliament and the Senate have gone to show that a judicial measure in place of civilian courts has been created, in fact, the Amendment amounts to conferring extrajudicial punishment to those designated as terrorists.

Prime Minister Nawaz Sharif has claimed that the Amendment is an extraordinary measure warranted by current extraordinary circumstances. However, it is nothing less than approval of extrajudicial punishment under the guise of “judicial measures”. An extrajudicial action does not become a judicial action with mere addition of the words “the courts” after the word military. Military actions will always remain military actions, whether they are conducted behind the front of ‘military courts’ or not.

The simple solution proposed to address the terrorist bombings and attacks is to deny fair trial to alleged terrorists. As civilian courts are circumscribed – in order to negate judgments not the result of a fair trial – the military has been assigned to conduct this function.

Although the government believes that this is a solution to terrorism, the government is only creating an illusion as a measure to deal with terrorism. Extrajudicial punishment through military courts will increase the feeling among the people that the State is unable to act within the legitimate and legal framework to deal with the terrorist threat. The perception of the government acting outside the framework of the law will further undermine the government, something that will be exploited by terrorists. Military courts performing functions civilian court functions will only increase the high levels of instability that permeates life in Pakistan.

When faced with a crisis – such as that which has arisen in the wake of the massacre of such a large number of children – it is natural for a government to want to portray that it is taking strong measures to provide security to the people. However, between the creation of such an appearances and finding a real and lasting solution to terrorism, there is a vast gap. While the government may comfort itself in its illusory measures that, the situation can further degenerate and the government may lose control altogether. Real solutions are needed to this crisis, which the government admits is an extraordinary one. To weaken civilian courts further is not a real solution.

Merely passing a law with a two-thirds majority does not make the Amendment a genuine “constitutional amendment”. Parliament does not have the power to alter the basic structure of the Pakistan Constitution. The Indian Supreme Court, following the good example of German courts in the post World War-II era, decided that the Parliament does not have the power to alter the basic structure of the constitution. The making and un-making of constitutions belong to a different sphere from the legislative one.

Therefore, there is solid jurisprudential basis to challenge that this “constitutional amendment” is not a constitutional amendment at all. It is to be hoped that the legal community of Pakistan, as well as the civil society, will strongly oppose this Amendment and seek judicial intervention to declare it as unconstitutional.

In the case Sindh High Court Bar Association v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad, and others (Constitution Petition No. 9 of 2009), the Supreme Court of Pakistan took firm measures to avoid any future interference by the military that may disrupt rule under the constitutional framework of Pakistan. This was done in light of many previous experiences where the Pakistan military disrupted rule under a democratic constitution and even went to the extent of suspending the Constitution. So this extraordinary measure was taken by the Supreme Court to ensure the democratic constitutional framework of Pakistan would not be disturbed again. Unfortunately, this particular “Amendment” now disturbs the democratic constitutional framework of Pakistan. It is a foot in the door for the military to begin interfering with the affairs of government once again.

Further, the judgment to Sh. Liaquat Hussain and others v. Federation of Pakistan through ministry of law, justice and others (PLD 1999 SC 504) is also relevant. Herein it is clearly established that “the Constitution of the Islamic Republic of Pakistan, 1973, in its preamble (now made a substantive part thereof vide Article 2A) declares that ‘the independence of the Judiciary shall be fully secured’ therein. According to a consensus of the jurists, the independence of the Judiciary means that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct or indirect, from any quarter or for any reason; and that the Judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature. This Court… has separated the Judiciary from the Executive” (Ordinance (XII of 1998) S.3, [p. 807] J).

It is a duty of a civilian government to always assert that it is able to govern through the constitutional structure of the country. When the civilian government admits that it cannot rule through the civilian democratic structure of the country, it places the entire constitutional future of the country in jeopardy.

The government’s need for taking the extraordinary measure of reintroducing military courts necessitate that the government addresses the neglect of civilian institutions. It is this neglect that has given rise to the possibility of terrorists undermining the government. It is this problem that the government must set out to address however difficult it may seem to appear at present. Failure to address this problem will encourage terrorists further, and the extraordinary crisis faced by Pakistan will worsen.