Khaled Ahmed - Pakistan’s new normal
Supreme Court has retreated from insistence on ‘due process’ in a state that is no longer sovereign.
Terror has scuttled the institutions that normally maintain the state’s “monopoly on violence.” Lawyers in Pakistan may point to bad prosecution on the part of the state but the truth is that terrorists are not convicted and, if convicted, are not executed, because of intimidation.
After killing Prime Ministers and governors, terrorists in Pakistan have killed another minister. Punjab Interior Minister Shuja Khanzada was killed in a suicide bombing in Attock after he claimed the entire command structure of an al-Qaeda-linked terrorist outfit had been killed in a “police encounter”.
Can Pakistan have “normal” law and order? This month,
Pakistan has gone through another crisis, once again involving parliament
and the judiciary. A17-judge full bench of the Supreme Court ruled
that parliament was right to establish military courts through the
controversial 21st amendment. The lawyers were understandably opposed to
the military courts, which carried the odour of the many martial laws
of the past. Most purists, stung by the short-circuiting of
the normal rule of law, wrote to persuade the bench to disallow the
military courts by shooting down the 21st amendment.
The idea of military courts was popular. Without
articulating the ugly fact that Pakistan was no longer a normal state,
people blamed the dysfunction of the executive and lower judiciary
and welcomed the brave position taken by the new army chief General Raheel
Sharif of going after terrorists of all stripes, including the “non-state
actors” spawned earlier by the state. The Pakistani state had lost
sovereignty in its tribal areas long ago, but it has now also lost it in
large parts of Karachi, the mega-city from where Pakistan collected
most of its revenue.
Balochistan had also been lost to Baloch nationalists and
sectarian killers hitched to al-Qaeda’s bandwagon of global terror. Cities
in south Punjab and the historic city of Peshawar, as well as cities
on the road to Peshawar in Khyber-Pakhtunkhwa were at the mercy
of terrorists disguised as champions of Islam. The army attacked the
Taliban and drove foreign terrorists out of its border areas.
Then the climactic thing happened, which closed the case as far as
military courts were concerned: Malik Ishaq, the al-Qaeda-connected
leader of the Lashkar-e-Jhangvi
(LeJ), who had boasted of killing over a hundred Shias, was
shot“extra-judicially”.
Suddenly, the entire nation was in favour of the 21st
amendment, unanimously passed by parliament. The Supreme Court duly
handed down an 11-for and six-against verdict. The court had beaten a
retreat from its earlier posture of defiance, imitative of the past
practice of the Indian Supreme Court protesting “basic structure”. It had
discovered something in the Constitution that even Parliament couldn’t
tamper with while passing amendments.
The Indian court had referred to the Constitution’s
“grundnorm” or “basic structure” to foil the attempts of the government of
Indira Gandhi to amend it. Indian lawyer A.G. Noorani, writing
in Pakistani newspaper Dawn in 2010, explained what had happened in
India: “In India the worth and necessity of the doctrine propounded
by its Supreme Court in 1973 were proved only two years later; much sooner
than anyone expected, driving even critics to accept it. On June 12, 1975,
Indira Gandhi’s election to the Lok Sabha was
declared invalid by the Allahabad High Court. A fortnight later, she
imposed ‘the internal Emergency’ on false grounds. It was a
euphemism for dictatorship.”
Noorani subsequently wrote: “On February 27, 1967, a
special bench of 11 judges of the Supreme Court of India ruled, by a
narrow majority in the famous Golaknath case, that ‘Parliament has no
power to amend Part III of the Constitution so as to take away or a
bridge fundamental rights’”.
In Pakistan, some judges leaned on ideology to claim it
as “grundnorm” as stated in the Objectives Resolution of 1949, prior
to the adoption of the constitution. But the Supreme Court was
determined to dissociate itself from the Iftikhar Chaudhry court of
the past that had actually fired a prime minister who enjoyed a
majority in parliament.
In the August 5 verdict of the Supreme Court
of Pakistan, Justice Saqib Nisar wisely found a way to remove the
“grundnorm” of the Objectives Resolution by pointing out that the
court had no jurisdiction. He stated in his note: “The doctrine
states that sovereignty over the entire universe belongs to
Allah Almighty alone and the authority to be exercised by the people
of Pakistan is a sacred trust. What is critical to note is that the
[Objectives] Resolution explicitly states and delineates who is to
exercise that authority.
The language is: ‘Where in the state shall
exercise its powers and authority through the chosen representatives
of the people’.” The Pakistani Supreme Court has now retreated from
its imitative “grundnorm”-based activism that insisted on “due process” in
a state that was no longer sovereign in many parts of its
territory. The lawyers understandably reject the military
courts, but they are in a minority in a nation that overwhelmingly
supports action against terrorists that the state once supported.
The big correction has not come in the judiciary but in
the conduct of the state. What is never brought to light is the
fact that Pakistan is ideologically subordinated to its
tormentors. The difference between India and Pakistan has become
glaring over time. While states maintain the myth of
external sovereignty at the UN, they can’t do the same with internal
sovereignty. If it doesn’t have internal sovereignty, the state
doesn’t exist.
Here the similarity between Pakistan and “dying” states like Somalia and Afghanistan is highlighted. Terror has scuttled the institutions that normally maintain the state’s “monopoly on violence.” Lawyers in Pakistan may point to bad prosecution on the part of the state but the truth is that terrorists are not convicted and, if convicted, are not executed, because of intimidation. Since some of these terrorists are wanted outside Pakistan, this non-action looks like collusion. The state can’t provide security to honest civilian judges while military judges and their families living in the cantonments are out of reach for the terrorists.
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