The Supreme Court judgment, announced on August 5, recognised parliament’s power to amend the Constitution at its discretion. It also upheld the legality of military courts established for two years under the 21st Amendment. However, it has reserved the right to review the process of allocation of cases to military courts and the disposal of such cases by these courts.
Legal and academic circles will continue to debate the contents of the judgment, especially because the dissenting notes by some judges have provided enough basis to continue exploring these issues. The debate is expected to focus on the notion of the basic structure of the Constitution versus parliament’s right to amend it at its discretion. This debate will remain inconclusive in Pakistan as has been the case in countries where some writers or judges supported the notion of basic structure at one time or another.
The legitimacy of military courts can be questioned on the basis of abstract theory or a textbook approach to democracy. However, the theoretical formulations are translated into institutions and processes in a specific political and economic context. Therefore, the imperatives of specific context of a society and ground political realities moderate the abstract notions of theory. We have seen that even developed and well-established democracies adopt tough political and legal measures if basic societal values and stability are threatened. The US and many other Western countries adopted tough laws restraining individual freedoms after the terrorist attacks in the US on September 11, 2001.
Pakistan has suffered from terrorism since September 2001 more than any Western country has. Over 50,000 Pakistanis, including police and security personnel, have been killed. It is, therefore, understandable that it would adopt extraordinary measures to deal with the situation. Establishing military courts is one such measure that has been adopted as an exception. These courts will cease to exist after two years from the date of approval of the 21st Amendment.
Military courts alone cannot control terrorism in Pakistan. These have to be a part of a comprehensive policy of controlling terrorism involving both the civilian and military leaders, institutions and processes.
The military top brass was the first to abandon its ambiguous disposition towards militancy and came to a definite conclusion, in 2014, to eliminate the groups that threatened internal peace and stability and challenged the Pakistani state. This led to the initiation of the security operation in North Waziristan in mid-June 2014. The civilian political leadership, especially the federal government led by Prime Minister Nawaz Sharif, was unable and unwilling to come to such a conclusion because of a divided mindset on these groups and the constraint of electoral politics. However, once the army high command began the North Waziristan operation, the civilian federal government stood by it.
The second major shift in the approach of the military top brass and the civilian government towards terrorism came after the attack on the Army Public School in Peshawar on December 16, 2014. Again, the initiative came from the military and the civilian government followed.
The 20-point National Action Plan (NAP) provided a framework for Pakistan’s new counter-terrorism policy that emphasised a cooperative effort by the civilian government, the military and society to check terrorist groups and their sources of financial and political support. This also led to intensification of the ongoing security operation in Karachi by the Rangers, who are commanded by army officers. They targeted not only terrorists, but also extortionists and other criminal elements and their sponsors which brought them in conflict with the MQM and the PPP. The former, accused of using coercion to control dissent and assert its control over Karachi, was hit hard by the security operation.
The implementation of the NAP by the civilian government was slow from January to May 2015. However, the establishment of Apex Committees at federal and provincial levels comprising top people of the government, senior bureaucrats and top brass of the military, increased civil-military interaction when it came to countering terrorism. This increased the military’s clout in domestic administrative and security domains, enabling it to generate momentum in the civilian government’s efforts to do its part to control terrorism. By July and August, the civilian federal and provincial governments became more active in implementing various provisions of the NAP. The Punjab and Balochistan governments appear quite active in controlling terrorism and weakening public support for such elements.
Violence and terrorism have gone down in Karachi and elsewhere in Pakistan due to the tough security operations in the tribal areas and Karachi, efforts to check sectarian groups in Punjab and the prodding of the civilian government by the military, to be active in this respect. However, the government and the military would have to devote more attention to control this menace. The military and Rangers’ decision to expand the scope of the security operation in Karachi has caused tension between the military and the MQM, whose domination of Karachi has weakened. The PPP leadership also feels threatened by it.
What political implications will there be if and when the military undertakes a tough operation against religious extremists, sectarian groups and other terrorists in Punjab? Will this cause tension between the military and the PML-N leadership? The probability of such a conflict appears high, if and when such an operation takes place. This can threaten the current delicate balance between the civil and the military to the disadvantage of the former.
Pakistan is experiencing a turnaround in the positive direction in countering terrorism. However, much sustained work is still needed in this respect on the part of the military and the civilian government. If the civilians and the military cannot work in harmony in countering terrorism and the federal and Punjab governments remain hooked to glamorous mega projects, the current goodwill between the civil and military can dissipate.
Published in The Express Tribune, August 10th, 2015.