“An extraordinary situation and circumstances exist which demand special measures for speedy trial of offenses relating to terrorism, waging of war or insurrection against Pakistan and prevention of acts threatening the security of Pakistan. There exists grave and unprecedented threat to the territorial integrity of Pakistan by miscreants, terrorists and foreign funded elements. Since there is an extraordinary situation as stated above it is expedient that an appropriate amendment is made in the constitution. The bill is designed to achieve the aforesaid objects.”
That is the Statement of Objects and Reasons, of the 21st Constitutional Amendment Bill, unanimously passed by the National Assembly and the Senate on January 6, to mixed reception. Raza Rabbani of the PPP burst into tears, saying he felt he was betraying his conscience but remaining loyal to the party leadership. Leaders from Maulana Fazlur Rehman’s faction of Jamiat-e-Ulema-e-Islam (JUI-F), Jamaat-e-Islaami (JI) and Pakistan Tehrik-e-Insaaf (PTI), perhaps predictably, refused to vote. The Pakistan Muslim League-Nawaz, led by Prime Minister Nawaz Sharif himself, could not be happier, all shaking hands and beaming smiles. The civil society remains divided, some seeing this as a necessary step and relying on the military intervention to fix the situation in the country, and others viewing it as a distortion of the constitution. The media, so instrumental in invoking a sense of patriotism for the army and the nation over the last several months, was quick to label it a soft coup.
Ahmer Bilal Soofi, a constitutional expert and Supreme Court advocate, feels that the new military courts will be viewed as a parallel judicial system if seen through the lens of the law of peace. The constitution was written in a conservative environment, when such existential threats to Pakistan did not exist. Pakistan is under a systematic, systemic attack by a well-entrenched, well-coordinated, well-funded enemy. This situation needs to be viewed through the lens of the law of war paradigm, where extraordinary steps need to be taken in order to ensure that the state apparatus continues to function and perform its duties, the most sacred of which is providing security to its citizens. Civil courts, with their revolving bail doors, are unable to meet this goal. The new law has to be regulated, there must be a strong oversight, and political ownership as well, but enacting it also sends some very clear messages. First, the civil setup has crashed and is ineffectual. Second, we cannot enforce our constitution without the aid of our military. Third, we are giving the army the license to use force because it has to restore public order.
Salman Akram Raja, another prominent legal expert and Supreme Court advocate, says the constitution of a country is designed to provide civil liberties, rights, freedoms, and in case of a violation of the social contract, justice. If the provisions in the document fall short, and basic security in the country becomes a luxury, it is your democratic obligation to address the problem, revisiting all links in the chain of failure, up to and including the constitution. The constitution, first and foremost, has to be a document that provides security to citizens judiciously and without discrimination. Failing that, it needs to be revised and amended. Salman Akram Raja feels that despite the criticism, the parliament is well within its rights to summarily amend the constitution in the pursuit of restoring public order and safeguarding the writ of the state. When the constitution was amended to include the clause for the right to education, no one labeled that as a distortion of the constitution.
On December 25, Prime Minister Nawaz Sharif shared, in a televised address, the 20 points of the National Action Plan to combat terrorism. It included several measures in addition to military courts, specifically targeting seminaries, their funding, and their proliferation of hate speech and literature. The new bill gives new powers to the military to try state terrorists, and gives the executive branch a certain level of oversight, but it makes no mention of any of the other points mentioned in the plan. That raises a lot of questions, such as that steps have been taken to immediately implement points which benefit the military, but others have been put on the backburner, with no timeline of when they will be implemented. Unsurprisingly, the JUI-F, the JI and the PTI have already expressed their reservations with some of these steps involving seminaries, with the JI emir Sirajul Haq going so far as claiming that terrorism and seminaries (and religion at large) cannot be linked.
The amendment in the Pakistan Army Act of 1952 adds a fourth category of civilians that can be tried in military courts. These include: “those claiming or known to belong to any terrorist group or organization using the name of religion or a sect; those who raise arms or wage war against Pakistan, or attack the Armed Forces of Pakistan or law enforcement agencies; kidnapping for ransom; possession or storing of explosives, firearms, suicide jackets; using or designing vehicles for terrorists acts; providing or receiving funding from any foreign or local sources for terrorism; overawing the state or any section of public or sect or religious minority and creating terror or insecurity in Pakistan or outside.” While this seems like a sweeping set of powers, it must be said that none of these individuals can be tried without approval from the federal government first, indicative of some level of oversight. More troublesome is the clause that allows any current trials (from any date) to be transferred to military courts at the behest of the federal government.
Two critical elements needs to be included in this move, which can only be provided over the course of time. The first is transparency of action, by taking the public into confidence and providing accountability for the actions undertaken under these new powers. Second, and perhaps much more importantly, the efficacy of these new measures needs to be established. If the civil and military leadership cannot establish the efficiency and effectiveness of these courts on an ongoing basis, and not at the end of the two-year term, they will come under considerable fire from the right wing, the media and the civil society at large.
The author is a journalist and a development professional, and holds a Master’s degree in strategic communications from Ithaca College, NY, USA
Email: zeeshan[dot]salahuddin[at]gmail.com
Twitter: @zeesalahuddin
That is the Statement of Objects and Reasons, of the 21st Constitutional Amendment Bill, unanimously passed by the National Assembly and the Senate on January 6, to mixed reception. Raza Rabbani of the PPP burst into tears, saying he felt he was betraying his conscience but remaining loyal to the party leadership. Leaders from Maulana Fazlur Rehman’s faction of Jamiat-e-Ulema-e-Islam (JUI-F), Jamaat-e-Islaami (JI) and Pakistan Tehrik-e-Insaaf (PTI), perhaps predictably, refused to vote. The Pakistan Muslim League-Nawaz, led by Prime Minister Nawaz Sharif himself, could not be happier, all shaking hands and beaming smiles. The civil society remains divided, some seeing this as a necessary step and relying on the military intervention to fix the situation in the country, and others viewing it as a distortion of the constitution. The media, so instrumental in invoking a sense of patriotism for the army and the nation over the last several months, was quick to label it a soft coup.
Ahmer Bilal Soofi, a constitutional expert and Supreme Court advocate, feels that the new military courts will be viewed as a parallel judicial system if seen through the lens of the law of peace. The constitution was written in a conservative environment, when such existential threats to Pakistan did not exist. Pakistan is under a systematic, systemic attack by a well-entrenched, well-coordinated, well-funded enemy. This situation needs to be viewed through the lens of the law of war paradigm, where extraordinary steps need to be taken in order to ensure that the state apparatus continues to function and perform its duties, the most sacred of which is providing security to its citizens. Civil courts, with their revolving bail doors, are unable to meet this goal. The new law has to be regulated, there must be a strong oversight, and political ownership as well, but enacting it also sends some very clear messages. First, the civil setup has crashed and is ineffectual. Second, we cannot enforce our constitution without the aid of our military. Third, we are giving the army the license to use force because it has to restore public order.
The constitution was written in a conservative environment, when such existential threats to Pakistan did not exist
Salman Akram Raja, another prominent legal expert and Supreme Court advocate, says the constitution of a country is designed to provide civil liberties, rights, freedoms, and in case of a violation of the social contract, justice. If the provisions in the document fall short, and basic security in the country becomes a luxury, it is your democratic obligation to address the problem, revisiting all links in the chain of failure, up to and including the constitution. The constitution, first and foremost, has to be a document that provides security to citizens judiciously and without discrimination. Failing that, it needs to be revised and amended. Salman Akram Raja feels that despite the criticism, the parliament is well within its rights to summarily amend the constitution in the pursuit of restoring public order and safeguarding the writ of the state. When the constitution was amended to include the clause for the right to education, no one labeled that as a distortion of the constitution.
On December 25, Prime Minister Nawaz Sharif shared, in a televised address, the 20 points of the National Action Plan to combat terrorism. It included several measures in addition to military courts, specifically targeting seminaries, their funding, and their proliferation of hate speech and literature. The new bill gives new powers to the military to try state terrorists, and gives the executive branch a certain level of oversight, but it makes no mention of any of the other points mentioned in the plan. That raises a lot of questions, such as that steps have been taken to immediately implement points which benefit the military, but others have been put on the backburner, with no timeline of when they will be implemented. Unsurprisingly, the JUI-F, the JI and the PTI have already expressed their reservations with some of these steps involving seminaries, with the JI emir Sirajul Haq going so far as claiming that terrorism and seminaries (and religion at large) cannot be linked.
The amendment in the Pakistan Army Act of 1952 adds a fourth category of civilians that can be tried in military courts. These include: “those claiming or known to belong to any terrorist group or organization using the name of religion or a sect; those who raise arms or wage war against Pakistan, or attack the Armed Forces of Pakistan or law enforcement agencies; kidnapping for ransom; possession or storing of explosives, firearms, suicide jackets; using or designing vehicles for terrorists acts; providing or receiving funding from any foreign or local sources for terrorism; overawing the state or any section of public or sect or religious minority and creating terror or insecurity in Pakistan or outside.” While this seems like a sweeping set of powers, it must be said that none of these individuals can be tried without approval from the federal government first, indicative of some level of oversight. More troublesome is the clause that allows any current trials (from any date) to be transferred to military courts at the behest of the federal government.
Two critical elements needs to be included in this move, which can only be provided over the course of time. The first is transparency of action, by taking the public into confidence and providing accountability for the actions undertaken under these new powers. Second, and perhaps much more importantly, the efficacy of these new measures needs to be established. If the civil and military leadership cannot establish the efficiency and effectiveness of these courts on an ongoing basis, and not at the end of the two-year term, they will come under considerable fire from the right wing, the media and the civil society at large.
The author is a journalist and a development professional, and holds a Master’s degree in strategic communications from Ithaca College, NY, USA
Email: zeeshan[dot]salahuddin[at]gmail.com
Twitter: @zeesalahuddin