Saving the turf: The controversy of the 21st Amendment
Out of either inefficiency or fear of reprisals, neither administration nor judiciary would like to touch terrorists
The writer is a political and security analyst who retired as an air vice-marshal in the Pakistan Air Force
In this concluding part of the series of articles that I have written on the 21st Amendment, I would like to discuss the two specific objections to the amendment that religious parties like the JUI-F and the Jamaat-e-Islami (JI) have raised. They object to the term ‘religion and sect’ based terrorism, and its further extension in terms of circumscribing those religious schools that produce religiously motivated and driven cadres, who believe in the exclusivity of their own strain of religious thinking while demonising the other. In the discourse on terrorism that has evolved since the ongoing spat, the more stringent fundamentalist strain said to be driving most extremist groups, including the TTP that is involved in an insurgency, and groups that have historically led a sectarian war in the length and breadth of Pakistan, becomes the primary source of disconcert and a pervasive danger to both the state and society. Therefore, religion and sect based terrorism finds mention in specific terms.
This specific mention of both religion and sect indicates that the state needs to prioritise dealing with these types of threat that are more ominous. The counterpoint that religious parties make regarding non-religious groups engaged in terror is correctly observed. Why those were not included in a larger definition of the terror groups that pose a threat to the nation is because of their political connotation, which in itself engenders political sensitivities. Baloch nationalists’ secessionist movements border on a brewing insurgency and perhaps, need a treatment similar to that of insurgent groups of Fata, but for the moment, the combined political wisdom suggests a political route to an age-old problem. In Khyber-Pakhtunkhwa (K-P) and Fata, the political initiatives to appease the groups have been many but without an abiding consequence of peace.
Also, the insurgency in Fata targets the state and wishes to take over the entire country; the one in Balochistan has limited objectives. Groups in Fata and K-P use religion as an emotive multiplier, which unfortunately, has international linkages seeking transnational arrangements; the one in Balochistan remains a nationalist sentiment alone. There are other strategic factors mitigating the acuteness of one threat while imposing the gravity of the other.
The MQM, too, has at times exhibited nationalist credentials, but is now a well mainstreamed political entity. There remain serious allegations of Mafiosi-style functioning in its conduct but that may also emerge from its insecurities based on its fortress sensitivity about Karachi — its main support base as a party. For fears that parties like the MQM exhibit, the solution is in more democracy rather than in restricting or limiting democracy. At the same time, militancy as a trait and organised crime is very much entrenched in Karachi’s culture; this will need a more effective law-enforcement mechanism with an effective judicial response rather than a military operation.
Faith and sect-based terror, too, has shielded itself within the crime syndicates of the metropolis; those must be dealt with through laws and mechanisms as chosen for other areas of the country. Same is the case for the rampant sectarian terror in Balochistan. Many of the sectarian terrorist groups have relocated to Balochistan following operations in Fata and are targeting the Hazara community to establish their dominating presence through the use of such terror. Those groups, too, need to be dealt with according to the same yardstick as for Fata and other religious-sectarian-militant groups.
In such rampant factionalism, of both terror-sponsoring militant outfits and the crime syndicate, why should the army be keen to take on judicial responsibilities? The answer, unfortunately, lies in the dysfunction of the prevalent justice system. Its inability to stick to either the provisions of the Anti-Terrorism Act of 1997, or the recently revamped Evidence Bill or the Protection of Pakistan Act, have failed to kick-start a sluggish judicial response to the need of trying and punishing where convicted individuals are involved in terrorism. A lackadaisical administration, which must not only apply the law but investigate and prosecute suspects in all kinds of alleged crimes, has generally failed and underwrites a poor judicial response to the threats that have mounted and multiplied in both their extent and intensity.
Between 3,000-5,000 alleged terrorists are detained by the army following their various operations in fighting the menace but the state apparatus responsible to arrest, prosecute and punish the suspects lies unattended despite years since the issue came up. Out of either inefficiency or fear of reprisals, neither the administration nor the judicial system would like to touch those individuals. Such is the apathy and casualness to what is an existential threat to the nation and the state of Pakistan. The courts are known to act as revolving doors for the terrorists who easily find freedom and relocation back with the groups. Evidence that is known against the alleged terrorists gets easily rejected for its non-admissibility based on various loopholes in the existing laws. It remains an unending story of inefficiency when it comes to the legal apparatus. The military courts, then, find relevance to complement what is inadequate.
What if the 21st Amendment is struck down by the superior courts? Should they? This remains the most vexing issues of domains between the legislatures all over the world and courts that claim to have affirmed their right to protect the Constitution. To whom does the Constitution belong in the first place? Is it the courts or the people? Can a people seek to change a Constitution? If it is theirs, they must have the right to amend it. A Constitution is a living document and must breathe and exhale as per a living being. What it exhales is what is superfluous and what it breathes must be fresh to meet the needs of its body. As the times change and the requirements of statecraft evolve, a Constitution must too. That is the essence of the relationship between the people who own the state and the governments who will need to be given the relevant laws according to the aspirations of the people. Those aspirations get reflected in the majority opinion and sentiment and find enunciation through their chosen representatives. Parliament thus is as supreme as the people make it. The courts adjudicate according to the laws handed to them. If these domains get respected, the conflict and the overlap will significantly mitigate into a smoother working relationship; more synergistic than conflictual.
Published in The Express Tribune, January 24th, 2015.
This specific mention of both religion and sect indicates that the state needs to prioritise dealing with these types of threat that are more ominous. The counterpoint that religious parties make regarding non-religious groups engaged in terror is correctly observed. Why those were not included in a larger definition of the terror groups that pose a threat to the nation is because of their political connotation, which in itself engenders political sensitivities. Baloch nationalists’ secessionist movements border on a brewing insurgency and perhaps, need a treatment similar to that of insurgent groups of Fata, but for the moment, the combined political wisdom suggests a political route to an age-old problem. In Khyber-Pakhtunkhwa (K-P) and Fata, the political initiatives to appease the groups have been many but without an abiding consequence of peace.
Also, the insurgency in Fata targets the state and wishes to take over the entire country; the one in Balochistan has limited objectives. Groups in Fata and K-P use religion as an emotive multiplier, which unfortunately, has international linkages seeking transnational arrangements; the one in Balochistan remains a nationalist sentiment alone. There are other strategic factors mitigating the acuteness of one threat while imposing the gravity of the other.
The MQM, too, has at times exhibited nationalist credentials, but is now a well mainstreamed political entity. There remain serious allegations of Mafiosi-style functioning in its conduct but that may also emerge from its insecurities based on its fortress sensitivity about Karachi — its main support base as a party. For fears that parties like the MQM exhibit, the solution is in more democracy rather than in restricting or limiting democracy. At the same time, militancy as a trait and organised crime is very much entrenched in Karachi’s culture; this will need a more effective law-enforcement mechanism with an effective judicial response rather than a military operation.
Faith and sect-based terror, too, has shielded itself within the crime syndicates of the metropolis; those must be dealt with through laws and mechanisms as chosen for other areas of the country. Same is the case for the rampant sectarian terror in Balochistan. Many of the sectarian terrorist groups have relocated to Balochistan following operations in Fata and are targeting the Hazara community to establish their dominating presence through the use of such terror. Those groups, too, need to be dealt with according to the same yardstick as for Fata and other religious-sectarian-militant groups.
In such rampant factionalism, of both terror-sponsoring militant outfits and the crime syndicate, why should the army be keen to take on judicial responsibilities? The answer, unfortunately, lies in the dysfunction of the prevalent justice system. Its inability to stick to either the provisions of the Anti-Terrorism Act of 1997, or the recently revamped Evidence Bill or the Protection of Pakistan Act, have failed to kick-start a sluggish judicial response to the need of trying and punishing where convicted individuals are involved in terrorism. A lackadaisical administration, which must not only apply the law but investigate and prosecute suspects in all kinds of alleged crimes, has generally failed and underwrites a poor judicial response to the threats that have mounted and multiplied in both their extent and intensity.
Between 3,000-5,000 alleged terrorists are detained by the army following their various operations in fighting the menace but the state apparatus responsible to arrest, prosecute and punish the suspects lies unattended despite years since the issue came up. Out of either inefficiency or fear of reprisals, neither the administration nor the judicial system would like to touch those individuals. Such is the apathy and casualness to what is an existential threat to the nation and the state of Pakistan. The courts are known to act as revolving doors for the terrorists who easily find freedom and relocation back with the groups. Evidence that is known against the alleged terrorists gets easily rejected for its non-admissibility based on various loopholes in the existing laws. It remains an unending story of inefficiency when it comes to the legal apparatus. The military courts, then, find relevance to complement what is inadequate.
What if the 21st Amendment is struck down by the superior courts? Should they? This remains the most vexing issues of domains between the legislatures all over the world and courts that claim to have affirmed their right to protect the Constitution. To whom does the Constitution belong in the first place? Is it the courts or the people? Can a people seek to change a Constitution? If it is theirs, they must have the right to amend it. A Constitution is a living document and must breathe and exhale as per a living being. What it exhales is what is superfluous and what it breathes must be fresh to meet the needs of its body. As the times change and the requirements of statecraft evolve, a Constitution must too. That is the essence of the relationship between the people who own the state and the governments who will need to be given the relevant laws according to the aspirations of the people. Those aspirations get reflected in the majority opinion and sentiment and find enunciation through their chosen representatives. Parliament thus is as supreme as the people make it. The courts adjudicate according to the laws handed to them. If these domains get respected, the conflict and the overlap will significantly mitigate into a smoother working relationship; more synergistic than conflictual.
Published in The Express Tribune, January 24th, 2015.