Monday, August 17, 2015

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.

see also