Law and (Military) Order

“Pakistan votes to let insurgents be tried in military courts” — what is wrong with this picture?

In an unprecedented abdication of civilian authority to the military, the Pakistani parliament voted Jan. 6 to amend the constitution to let insurgents be tried in military courts. In the blink of an aye, with no debate or dissent, the 21st constitutional amendment passed unanimously, with only two small religious parties abstaining. Not even Imran Khan, widely viewed as a Taliban sympathizer, opposed the court change, although his party’s handful of MPs have been boycotting parliament since August over alleged rigging in the 2013 parliamentary election.

The argument to hand the courts over to the army was promoted by Prime Minister Nawaz Sharif in the days immediately after more than 140 people, mostly young students, were killed on Dec.16 in an attack on a military school by the Tehreek-e-Taliban Pakistan (TTP). After rarely being seen in public, and even less frequently in parliament since his government’s election in 2013, Sharif initiated a week-long flurry of intense lobbying, multi-party meetings, breakfasts with parliamentarians, and tete-a-tetes with the opposition to ensure the vote passed in record time.

The attack on the school was undoubtedly one of the most horrific the country has seen considering the number of young school children who were murdered, but it is by no means the first. It was, however, a turning point that presented a fresh opportunity for the government to strengthen the democratic set-up by capitalizing on the overwhelming public outrage and seeking a parliamentary consensus for an all-out assault on the terrorism that has killed and injured approximately 50,000 Pakistanis. Instead of rising to the challenge, however, not only the government but the parliament itself punted the ball straight to the military after failing to accept their responsibility for national security and the constitutional separation of powers between the executive and the judiciary.

In a country which has been ruled for half its existence by military dictators who have imprisoned, tortured, overthrown, and even killed politicians, the sudden move by Members of Parliament to shift civilian authority to the military is surprising, to say the least. Just over one year ago, the country was celebrating the first-ever peaceful transfer of power from one democratically-elected government to another with high hopes that it signaled the consolidation of democracy and an end to military interference in civilian affairs.

Instead of calling parliament into session after such a heinous attack, Sharif instead convened a private closed-door meeting, demonstrating his disdain for the elected body despite his previous rhetoric to the contrary. The extra-parliamentary gathering not only sidelined parliament but included the military leadership as equal participants in what was clearly the civilian domain. One of the key proposals that emerged was to try terrorists in military court which, apparently, the army had been contemplating since September. Renowned human rights activist and former chair of the Supreme Court Bar Association Asma Jehangir called it “a suicide attack on parliament” that would have a serious impact on political discourse in the country.

Even more surprising was the all-out support for military courts by the opposition Pakistan Peoples Party (PPP) which, arguably, has suffered more than any other party from military rule. Party co-chairman Asif Ali Zardari, who emerged as “the ruling party’s main benefactor,” helped ensure a consensus in the National Assembly and passage of the vote in the Senate which the PPP effectively controls, with 41 out of 104 seats.

The move comes just four years after passage of the 18th amendment, which rid the constitution of all distortions imposed by military dictators since its passage in 1973 under the late Prime Minister Zulfikar Ali Bhutto who was ousted and hanged at the behest of his army chief Mohammed Zia-ul-Haq. In an added twist of irony, the PPP requested the scheduled introduction of the military courts amendment be withheld for one day in order to not coincide with the anniversary of Bhutto’s death.

Parliamentary consensus on the 18th amendment was the result of a painstaking year-long process by a parliamentary committee during the previous PPP government after the assassination of their leader, Benazir Bhutto, while she was campaigning against the military rule of Pervez Musharraf. Under her leadership, the Charter of Democracy, signed in 2006 by her and current PM Nawaz Sharif, who was in exile at the time, committed both their parties to the restoration of democracy and the supremacy of civilian rule. The transfer of civilian power back to the military in the 21st amendment, in contrast, marks the first time a democratically-elected parliament has willingly ceded its authority to the military and will “stand as a monument to the betrayal of the civilian, democratic cause.”

In the aftermath of the Peshawar attack, according to lawyer and commentator Saroop Ijaz, “it is incredible and horrifying how the narrative has shifted…the failings of the generals became those of the judges overnight in the same way the Osama bin Laden fiasco was turned into a failure of the civilian government to protect sovereignty.” Nothing has prevented the government or parliament from urgently strengthening the existing legal system and judicial process other than the government and parliament itself. The same time and effort spent on winning consensus for military courts could have gone into urgent reforms and administrative steps to fix the criminal justice structure, and the existing system could have been brought into shape to deal with terrorism.

The point is, Ijaz contends, that the military always finds a way to avoid responsibility for their failings and instead blame one civilian institution or another. Dawn columnist Aasim Sajjad Akhtar agrees adding: “only those with a less than rudimentary understanding of this country’s history could remain ignorant of the various ways and means through which the men in khaki safeguard their interests and cut down democratic forces to size.”

The result is always a return to military power whether by coup or, in the current case, an unprecedented invitation from the civilian authority itself for military intervention. For the first time in its history, the democratic project in Pakistan has been betrayed by the very elected representatives who committed to safeguard it. The jury is out on its future.

AAMIR QURESHI/AFP/Getty Images