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THE 21st Constitutional Amendment will remain testament to the fact that our power elite is visionless and puny, unable to distinguish between courage and folly, incapable of realising that good optics can’t cure deep-rooted problems caused by bad policy, and artful only at creating false narratives and finding scapegoats to deflect the focus from real issues. The 21st Amendment will increase the existing gap between law and justice in Pakistan. But more importantly, it will do little to address the scourge of terror.
The debate around the 21st Amendment is not about sacrosanctity of the Constitution, the legal ability of parliament to amend it or the judiciary’s report card. It is about the wisdom of the 21st Amendment as a means to fight terror. A subset of this question is what quality of justice must a civilised society preserve when faced with an insurgency and what balance must be struck between rights of those accused of heinous crimes and the society’s collective interest in curbing individual rights to make itself safe.
Even if the 21st Amendment uses the judiciary as a sacrificial lamb, the question is will it make us safer? Will military courts obliterate the terror infrastructure or just keep us distracted? The debate over the 21st Amendment is not about whether protecting terrorists is more important or our children, but about what caused the problem of terror and what is the best solution. That opposition to military courts amounts to disregard for our children is a dishonest argument and those making it should know so.
Will military courts obliterate the terror infrastructure or just keep us distracted?
Khakis want military courts not because they think these courts form the pivot in our fight against terror but because while fighting terror, complete control of the criminal justice system makes things more convenient. The military isn’t trained to deal with courts, investigation and prosecution and it doesn’t want to start learning now. When the military is fighting the bad guys and knows who they are, why should it have to prove so before someone else is the simple logic.
Khakis and civvies have been debating whether to use the war or criminal justice paradigm while dealing with terrorists. Neither sits neatly as on one hand the enemy largely comprises citizens, and on the other it is an armed militia adept at guerilla warfare effectively fighting the state with foreign and local patronage. Pre-Peshawar, Pakistan wasn’t willing to grant khakis impunity in fighting terror and thus they sought tools within the criminal justice paradigm.
The amended Anti-Terror Act, the Protection of Pakistan Act and Fair Trial Act, together, afforded the military control over internal security, intelligence and investigations. Action in Aid of Civil Power Regulations (for Fata and Pata) gave the military internment camps. The real missing link was the courts. In view of the missing persons’ cases (especially the Adiala 11), the military saw courts as an obstacle to producing desirable outcomes in terror cases.
Peshawar provoked yearning for revenge and the Constitution, fundamental rights and due process suddenly became luxuries we couldn’t afford in extraordinary times. Public sentiment could now be guided to embrace the war paradigm and reject the criminal justice approach. And Prime Minister Nawaz Sharif was eager and willing to do the dirty job. But he was doing the military no favour. He needed the military courts more than the khakis.
It was Sharif who had held multiparty conferences earlier in 2014, goaded by Imran Khan, to manufacture a “national consensus” around talking to our “misguided brethren”, the TTP. His internal security policy had been a complete failure. He had agreed to continue a moratorium on death sentences when threatened by the Punjabi Taliban. His party had been flirting with Ahle Sunnat Wal Jamaat etc. while denying Punjab’s terror problem. How could he tell an angry nation that he had slept over a menacing problem for a year and a half?
Or how could he tell them that terror stemmed from three decades of (khaki-authored) failed national security policies, at a time when his own legitimacy and performance ratings were in the pits (with PTI breathing down his neck), and a popular military was conducting a major operation in North Waziristan against the terrorists he wanted to continue talking to? He couldn’t. But he could insinuate that neither the civilian government nor the military was responsible. It was the judges who were at fault and he had no control over them.
Nawaz Sharif needed something spectacular to exhibit his resolve and ability to be a wartime prime minister. He needed the 21st Amendment for optics. The military needed it for convenience. The other parties went along because if someone asked, if not this then what, or what did you do about it during your tenure, they wouldn’t know what to say.
Terror has proliferated in Pakistan due to contradictions within our security policies and lack of implementation of the law in relation to prized ideological assets. What we need is an ideological weapons convention that doesn’t just place moratoriums on malfunctioning assets but bans this genre altogether and moves to liquidate the existing ones. Expeditiously killing terrorists, judicially or extrajudicially, will not help so long as the production lines are intact.
It is the military that incubated ideological weapons and it is only the military that can outlaw and dismantle them. This will first require removing any remaining contradictions between our internal security and regional security policies. Once the JUI-F and others of their ilk know from the military’s anti-terror operations that military courts aren’t the latest means to distinguish good terrorists from bad, they might find it easier to reimagine their politics.
The 21st Amendment is a marriage of convenience. But its authors, the PML-N and the military, must recognise that it will keep the public distracted only for so long. Public opinion is fickle. It favoured disciplining the vigilante Lal Masjid brigade but turned bitterly against the disproportionate military operation. It favoured talks with TTP in early 2014 and revenge in December 2014. Who knows in what direction our transient national sentiment might flow after the next big terror attack if it happens despite the military courts?
The writer is a lawyer.
Twitter: @babar_sattar
Published in Dawn, January 12th, 2015
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