Pakistan: On Massacres of Children and Constitutions

On December 16, 2014, members of the banned terrorist organization Tehreek-e-Taliban Pakistan (TTP) staged an attack on an army-run school in Pakistan’s city of Peshawar, massacring 149 people, 132 of them school-aged children.

Pakistan is no stranger to terrorist violence. Since the 1980s, Pakistan has been both a purveyor and victim of terrorism. Since joining the US-led Global War on Terror in 2001, it has lost more than 40,000 citizens to terrorist attacks. Still, the Peshawar massacre – the largest and most horrific single terrorist attack in Pakistani history – shocked the nation’s conscience.

Given the public mood post-Peshawar, it was inevitable that culpability for the massacre had to be fixed. The massacre sparked a brief public conversation on the military establishment’s deeply problematic relationship with terrorism and terrorist groups – a conversation that threatened the edifice of Pakistan’s long-standing policy on the use of terrorist proxies against its neighbours. The massacre also came amidst the largest military operations against terrorist groups in Pakistan to date, which limited a jingoistic response of military strikes to the tragedy.

Boxed in, and also facing pressure from the rank-and-file given that most of the victims of the Peshawar massacre were from military families, the army quickly shifted public focus. It first urged Prime Minister Nawaz Sharif to reinstate the death penalty, which had been suspended by the previous government in 2008. The army chief, General Raheel Sharif (no relation to the Prime Minister) then set about forging a parliamentary consensus on a response to the Peshawar massacre.

In an unusual move, General Sharif and his colleague Lieutenant-General Rizwan Akhtar, the Director General of Inter Services Intelligence (the ISI, the military’s premiere intelligence agency) attended a parliamentary conference aimed at crafting a consensus response to the tragedy. The generals threw their full weight behind constitutional amendments that would allow military courts to try those charged with terrorism related offences.

On January 6, the President of Pakistan signed into law a package of constitutional amendments and legal reforms unanimously passed by Parliament. These include amendments to the Army Act, 1952, allowing the establishment of military courts with jurisdiction over civilians that are charged with terrorism related offences. Article 175 of the Constitution establishes an independent judiciary and disallows any parallel judicial systems not sanctioned by the Constitution. The 21^st Amendment to the Constitution makes this Article inapplicable to the newly established military courts.

At a stroke of the president’s pen, a security sector issue has become a justice sector issue, and the army has gone from being the problem, to the solution. 

The amendments also derogate military courts from observing fundamental rights under the Constitution. In other words, the rights to security of the person, freedom from arbitrary detention, the right to a fair trial (including choice of counsel), the right against self-incrimination, and even the right to dignity and freedom from torture, no longer apply to those to be tried by military courts.  (Incidentally, this trade-off between constitutional rights and national security in the wake of terrorist attacks is also reflected in separate pieces in this series this month from France, Kenya and UK).

The amendments include a two-year “sunset clause”, and are set to expire on January 7, 2017 unless renewed by Parliament

Proponents of the reforms have stated that military courts would resolve terrorism cases more expeditiously than the existing chronically back-logged and under-resourced courts. Pakistani courts also have dismally low conviction rates in terrorism cases of between 5% and 10%. Since 2007, over 2000 people charged with terrorism-related offences have been freed by the courts due to lack of evidence. Further, many judges in Pakistan delay hearing or convicting in terrorism cases out of well-founded safety concerns. A number of judges in terrorism cases have been assassinated or have had to go into hiding. Finally, given the two-year sunset clause, supporters of the reforms argue that this is a temporary measure in a time of national emergency.

There is certainly some validity to the points raised by pro-reform voices. After the terrorist attacks of September 11, 2001, even an advanced democracy such as the US instituted military courts, the suspension of constitutional and legal guarantees, and vile practices such as torture. Should Pakistan not be entitled to similar measures when responding to acts of terror cumulatively of a far greater magnitude? After all, unlike the US, Pakistan is not an advanced democracy by any stretch, and is removed from a past of autocratic military rule by the time and space of a single democratic government that preceded the present one.

However, it is precisely because Pakistan’s grasp on democracy is so tenuous, and precisely because its link to a past rife with military rule and the abuse of fundamental rights is so strong, that Pakistan’s constitutional reforms should be a cause for grave concern for its citizens and constitutional democrats alike.

The Legal Context

The International Commission of Jurists has already criticized the new military courts, stating that they fall short of international standards of fair trials and violate Pakistan’s obligations under the International Covenant on Civil and Political Rights, which it ratified only in 2008.

Certainly, from a rights-based perspective that advances the rule of law, there are incurable problems inherent in the constitutional amendment and recent legislative reforms in Pakistan. The government has effectively set up a parallel judicial system with untrained military judges controlled by the executive. This strikes deep at the root of the constitutional separation of powers.

Comparative evidence and Pakistan’s own history with military tribunals shows that the militarization of the courts leads to a securitization of justice. Principles of fundamental justice are ignored in favour of expediently attaining security objectives. Further, the army has been engaged in a war with terrorist elements in Pakistan for years, and has suffered thousands of casualties. Added to this is the trauma of responding to the slaughter in Peshawar of children from military families. As such, how can one expect military officers without adequate legal or judicial training to provide fair and impartial adjudication in cases involving the very class of suspected criminals that the military officers have been at war with? Therefore, the spectre of bias in such proceedings looms large.

Without fundamental rights or any right of review before civilian courts, there are no procedural or substantive safe-guards against miscarriages of justice. This means that confessions obtained entirely through torture would be admissible and determinative of the charges, and could lead to the imposition of the death penalty.  

Most terrorism prosecutions in Pakistan fail not because of deficiencies on the bench, but because of the failure by law enforcement agencies to conduct a proper investigation that would yield the standard of proof needed for conviction. Given that no accompanying police reforms have been announced, the evidence put before the military courts will remain of a calibre that routinely fails muster before the courts. And yet more – and speedier – convictions are expected from the military courts. The threshold for conviction in military proceedings is far lower than the regular courts, and procedural rules emphasize expeditiousness rather than a truth-seeking function, with military trials set to last no longer than one week.

To allay concerns that innocent persons might get caught in the military court system, the government has announced that only those alleged terrorists that are seen as “jet black” (meaning where the evidence of their guilt is compelling) will be referred to the military courts. The problem with this formulation is that it denies the fundamental presumption of innocence till proven guilty. A government functionary, by deeming a terrorist suspect “jet black”, is essentially making a prima facie finding of guilt.

There is also the danger of “mission creep” with respect to the ambit of military courts. For years the Pakistani military has been engaged in a “dirty war” against political dissidents in the provinces of Baluchistan and Sindh. Thousands of dissidents have been tortured, disappeared or have turned up dead after being picked up by military intelligence agencies. It is conceivable that such persons – or others such as journalists, lawyers and rights activists that the military finds irksome – could find themselves facing military courts. Given the Pakistan army’s history of serious human rights violations, its verbal assurances that it will not abuse its new powers are less than reassuring.

The Political Context

The expansion of the military’s role in Pakistani politics carries a specific historical context. Pakistan’s coup-prone army has ruled the country for most of its life. The present seven-year long democratic interregnum is the longest uninterrupted period of democratic rule that Pakistan has seen since gaining independence in 1947. Therefore, in Pakistan this is not simply a debate on striking a balance between security and civil liberties; it is a tussle between democracy and military power.

Over the years, the army has methodically undermined public confidence in most civilian institutions. Its skill in dominating public relations battles is undeniable. Consider that within the space of 48 hours, the army managed to turn the American raid that killed Osama bin Laden in his Pakistani lair from an abject failure and breach of trust by the military into the inability of the then civilian government to protect Pakistan’s sovereignty.

The judiciary is the last respected civilian redoubt, and has gained immense prestige in recent years by jealously guarding its independence and holding the rich and powerful to account. In an unprecedented move, the former Chief Justice Iftikhar Chaudhry even took the military to task over the disappearance of dissidents in the so-called “missing persons cases”. The 21^st Amendment saps this newfound confidence in the judiciary.

It also reinforces a deeply entrenched and only recently discarded narrative in Pakistan that the army is forced to intervene in politics to “save” the nation from the ineptitude of civilian politicians and institutions. Not only do the government’s constitutional amendments revive this narrative and hand it to the military on a platter, they extend it to the judiciary as well. The multitudes of failings of Pakistan’s generals have become the failings of Pakistan’s judges. Implicitly blaming the judiciary for the Peshawar massacre not only undermines it and the rule of law, but clips the wings of the only institution that enjoys enough public confidence to challenge the military’s steady re-encroachment on political territory.

Conclusion

The 21^st Amendment and attendant legislative reforms were passed without any real debate in Parliament. As a result, there was no evidence presented on the need for military courts and how they will stem the tide of terrorism, particularly given that terrorist attacks in Pakistan have been falling over the last two years. Nor was there any open debate about the complicity of the military in the proliferation of militancy and terrorism in Pakistan and the broader South Asia region. The expansion of the military’s power into the civilian domain without attendant debate is in itself a worrisome indication of a re-ascendant military and the fragmentation of the fragile civil-military détente that has existed for the past seven years.

A petition against the amendments has already been filed in the Supreme Court of Pakistan. The Supreme Court may yet temper some of the excesses of the new law, particularly given the threat they present to the separation of powers and fundamental rights. The top court did strike down similar military courts in the 1990s in the case of Mehram Ali v. the Federation of Pakistan (1998), reminding the government that while “justice delayed is justice denied” sometimes “justice rushed is justice crushed”. However, those courts did not enjoy the constitutional cover that has been given the present ones, and the Supreme Court may now find its hands tied. There has been no bold “basic structure” doctrine in the Court’s jurisprudence, and it is unlikely to strike down such a popular amendment.

Outside of the Supreme Court, political will and public sympathy fall far short of the critical mass required to soften or reverse the amendments. The best hope for continued constitutional democracy in Pakistan is therefore to insure that the 21^st Amendment is indeed allowed to expire in two years. This will be impossible unless the government urgently plans for and invests in judicial and police reform over the next two years. Otherwise the constant scourge of military interference in politics will become a mainstay in Pakistan’s judicial system as well.

Still, the next two years will be a dangerous time for democratic development in Pakistan. After all, when civilian courts fail, military courts are waiting in the wings to “save” the nation. What happens when the army, in need of another scapegoat, or for other reasons of convenience, decides that the civilian government itself has failed? The question is, of course, rhetorical. Pakistan’s history, full of Bonapartist generals, is replete with answers.

December 2014 will and should always be remembered in Pakistan for the massacre of 132 school children. One hopes that January 2015 will not be remembered for the massacre of the rule of law, constitutionalism and democracy.

Shibil Siddiqi is a lawyer practicing in the areas of poverty law, human rights and administrative law in Toronto, Canada. Shibil also has a strong interest in constitutional issues in Canada and Pakistan. He has worked on justice-sector projects in Pakistan and Afghanistan. Shibil is also a Fellow at the Centre for the Study of Global Power and Politics at Trent University, and writes on law, politics and international relations.