THE 21st Constitutional Amendment, which will allow the trial of civilians accused of terrorism offences by courts manned by the military and the suspension of fundamental rights in relation to such trials, has been hailed by the political and military elites as a necessary step to save Pakistan. It has also been criticised by many as a violation of the principles of civilian supremacy, judicial independence and human rights.
Leave aside the above debate, what is interesting about the short text of the amendment is that it provides important insights into two central political and constitutional challenges facing us — i) creating a balance between Islam, constitution and democracy in a modern state, with a Muslim majority existing within a globally connected world; and ii) managing a weak transitional Pakistani democracy with an omnipresent military establishment, within a constitutional structure in which military dominance is a constitutional sin.
An analysis and deconstruction of the text of the Constitution (21st Amendment) Act, 2015, especially its preamble, reveals the following intention, decision and logic of the state:
The short text of the 21st Amendment provides important insights into two central challenges.
Firstly, “there exists grave and unprecedented threat to the integrity of Pakistan and objectives set out in the Preamble to the Constitution” and such a threat arises from “terrorist group[s] ... militia[s] ... using the name of religion or a sect”. Therefore, a connection is established between the threat to the state and Constitution and terrorism in the name of religion or sect.
Secondly, such terrorist groups or armed groups pose such “unprecedented threat” because they are engaged in “terrorism, waging of war or insurrection against Pakistan and ... acts threatening the security of Pakistan”. Therefore, this is the ultimate challenge to the state — a war or insurrection against Pakistan by such terrorist groups using religion or sect.
Thirdly, such “terrorist group[s] ... militia[s] ... using the name of religion or a sect” may be “from the foreign and locally funded anti-state elements”. Therefore, the international roots of such terrorism are constitutionally recognised by the state.
Fourthly, “religious or political part[ies] regulated under the Political Parties Order, 2002” have been distinguished from those “terrorist group[s] ... militia[s] ... using the name of religion or a sect”. Therefore, a fine distinction is created between ‘good’ Islamic and sectarian parties and ‘bad’ sectarian parties. In other words, there may not be good and bad Taliban any more but there are good and bad versions of Islam.
Fifthly, such “terrorist group[s] ... militia[s] ... using the name of religion or a sect” have to be “permanently wipe[d] out”. Therefore, this problem requires not a temporary solution but a complete solution ie to wipe out.
Sixthly, for this purpose, “special measures for speedy trials of certain offences” are required. These “special measures” means civilians being “tried by the courts” manned by the armed forces, which courts have been protected by this constitutional amendment against constitutional challenges such as that these courts violate judicial independence by exercising judicial power and also violate human rights. In other words, constitutional recognition, and exemption from accountability, for the military establishment.
Seventhly, this is not a permanent amendment but one which will automatically expire after two years. In other words, the political elite will keep a watch on the power of the military elite.
What are the macro implications of the above amendment for Pakistan? Firstly, the 1973 Constitution neither creates a theocratic Islamic nor a secular state. It tries to balance Islam with modern constitutionalism, the desire for the Muslim majority to be Islamic as well as modern and privileges for the Muslim majority with protection for minorities.
Therefore, the Constitution can be described as non-theocratic and non-secular. It is this delicate balancing act between Islam and constitutionalism which was disturbed by the counter-revolution of Zia by two processes — an aggressive, radical Islamisation of laws and converting the state itself into a jihadi state.
Although the process of Islamising laws has been slowly reversed since the 1990s, the 21st Amendment by recognising the threat to the state and Constitution from jihadis engaged in terrorism and using the name of religion or sect, may be seen as a turning point for Pakistan making the transition from a jihadi state to a Muslim-majority state, with an Islamic character.
The state is finally recognising the lethal mix of state policies and radical Islam but allows the politics of trying to convert Pakistan into an Islamic state through democratic, peaceful means. Thus, Islamic politics is here to stay but jihadi militant Islam has been constitutionally outlawed.
Secondly, it is not simply terrorism in the name of religion but also sectarian terrorism, foreign and locally funded, which is recognised as a threat. Thus, the original spirit of the religious provisions of Articles 20 and 227 to 230 is being recognised, which prohibited the monopoly of any Muslim sect over Islam. Therefore, this may be the start of a historic transition away from a state, which tolerated, if not at times supported, violent sectarian politics.
Thirdly, the price of democratic transition in Pakistan is two-pronged: a constitutional recognition of the de facto power of the military establishment, in the form of recognising its role in terror and now judicial policies, and giving it the status of a sacred cow by exempting it from judicial accountability and human rights. The painful process of democratic transition is being built on the combined grave of civilian supremacy, human rights and judicial independence. Therefore, the future of Pakistani democracy may no longer be civilian and constitutional supremacy but a balance of power between the political and military establishment with weak constitutional and human rights compliance.
A positive transition from a jihadi state to something like a normal state is unfortunately being linked with the constitutional recognition of the de facto power of the military establishment in this democratic transition. Or to paraphrase Kant, out of the crooked timber of Pakistan’s political contradictions no constitutional straight thing was ever made.
The writer is a lawyer.
Published in Dawn, January 26th, 2015
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