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| India-Pakistan |
| A three-path judgement |
| 2015-08-31 |
| [DAWN] PAKISTANIS live from crisis to crisis, hardly learning any lessons. They remain in denial of challenges recognised only after enormous suffering. Reluctantly, they seek solutions but select those that spawn more problems. They have a court system that's grossly incompetent to deal with even normal crime. They instituted a military court system and now they're bitching and moaning about the damage that comes with them. But they haven't changed the court system, nor in fact any part of the criminal justice system. For many years, Pakistan’s security apparatus boasted of holding militants loyal to it amongst its strategic assets. After undergoing extreme violence, the rest of the country accepted the ‘assets’ were killers. It took longer to convince the security leadership. It finally dawned on all stakeholders that action had to be taken against scores of terror groups spread across the country. Army operations carried out in response resulted in the de-escalation of violence, but in a manner that weakened the democratic transition. The fight against terrorism in Pakistan has taken a toll on civil-military ties. To avoid confrontation, the government often gives in to the military’s demands. Parliament too passed a constitutional amendment, temporarily allowing military courts to try civilians linked to terrorism. The amendment was challenged in the Supreme Court by members of civil society. After a much-awaited judgement, the petitions were predictably dismissed. Perhaps it is difficult to imagine any judiciary in Pakistan assuming it can override a powerful military’s desires. At the same time, there was an unrealistic expectation that the courts would bend the law to take on the task of taming the security apparatus. Instead, the verdict delivered by the majority of judges appeared to justify the views of those who cautioned against depending on Pakistan’s courts to bolster democracy and human rights. The judgement shows lack of consensus in Pakistan about some basic issues. The disagreements and opposing trends seen in the 10 legal opinions, delivered by a full court of 17 judges, reflect confusion. Some opinions retain a rigid, retrogressive approach to democracy and political progress; others are open to change. This also represents the national picture. Those craving to move forward are constantly pulled back. Most importantly, the judgement was a reminder of the several compromises that have been made by Pakistan’s judiciary over the years. At many times, this has been at the expense of promoting democracy and the rule of law. The SC had consistently held it could not sit on judgement on constitutional amendments passed by military dictators or parliament as the law-giver. Often, it was tempted to follow the Supreme Court of India to arrogate to itself the role of defining the basic structure of the Constitution and retain the power to review constitutional amendments, but so far it had resisted. Those challenging the 21st Amendment unanimously opposed military courts trying civilians, but remained divided on granting the SC the power to identify a basic structure of the Constitution that could never be touched. |
| Posted by:Fred |