Daily Times

Recently, the Pakistani parliament passed the 23rd constitutional amendment to re-establish military courts with the authority to hold trials and punish those responsible for terrorism in the country. Soon after these courts were initiated in 2015, their establishment was challenged before the Supreme Court (SC). The legal battle that ensued between the counsel for the government and the petitioners was centred on the question of basic structure of our constitution, in particular the principle of separation of legislative, executive and judicial powers. In its judgment on the matter, the full SC bench remarked that military courts were legal and constitutional, with a majority of 11 judges endorsing the government’s position. One of the viewpoints, expressed by the then chief justice, held that there could be no limitations on the parliament’s authority to make changes to the constitution. This was in effect a recognition of the absolute sovereignty of the parliament insofar as it was the only state institution through which the will of the people could be expressed. That this will was in contradiction to established principles of democratic governance had been rationalised by some in the full bench and the parliament on grounds that there was an exceptional situation in the country, needing extraordinary measures.

Such reasoning takes for granted the presence of a normal circumstance where the law is enforced in accordance with procedures put in place in penal and criminal codes and principles of separation of powers and due process, enshrined in the constitution. The assumption here is that in matters other than terrorism, the state is going about its business strictly in accordance with the letter and spirit of the law. However, there is a consideration of investigative work undertaken by human rights organisations that points to the contrary and raises the need for a more nuanced understanding of existing law-enforcement and criminal justice system across the country.

Take the issue of killing suspects in police encounters. Only last week, the Punjab Counterterrorism Department (CTD) claimed that 10 suspects believed to be associated with the Jamaatul Ahrar faction of the Tehrik-e-Taliban Pakistan (TTP) were killed in a shootout. The reported details of the shootout raise several questions and cast doubts over the veracity of the account. For example, the way the five suspects originally under custody managed to escape with help of nine others is just too remarkable to be ignored. Similarly, the way the second encounter unfolded with the killing of 10 suspects, including the original five, without any police casualties also seems too good to be true. And the report says nothing about the remaining four attackers. Did they escape? Why weren’t they chased and caught?

If doubts about veracity of this account are well-founded then the suspects seem to have been killed in a staged encounter at a time when recourse to an exceptional measure to try and punish without due process was already available in the form of military courts. This raises concerns about coordination, or lack thereof, between various state institutions like the provincial CTD and the military.

Staged encounters aren’t some one-off phenomena in Pakistan. Last year, a Human Rights Watch (HRW) report on police abuse found widespread acceptance of killing suspects in staged encounters among senior police officials interviewed. The officers held a view that the practice was needed to mete out punishments to ‘known criminals’ who could escape justice in the absence of evidence and witnesses.

For law-abiding citizens, this should not come across as a minor irregularity. Every time someone suspected of a crime is killed in this manner, the police is certainly involved that works beyond its mandate.

Similarly, one could refer to the issue of enforced disappearances of political activists to show that law enforcement and intelligence officials routinely suspend the law and create exceptions where they assume sovereign powers of adjudication and execution.

Unlike the exceptional measure of setting up military courts, which remains condemnable for the death of justice, the exceptions created in staging encounters and disappearances are not endorsed by legislation. More significantly, the widespread presence of these measures across the body politic and its frequent recourse in dealing with political dissent raises the concern that when it comes to law enforcement and dispensation of justice, exception is the norm.

Such state of affairs should raise alarm bells for those in the state who oppose military courts in principle but have accepted them on grounds that it is a matter of parliament’s sovereignty. For the parliament may have claimed some semblance of its sovereign character in endorsing military courts twice, it is still a long way from assuming the real sovereign power bestowed upon it by the constitution. Considering the role of state actors in challenging the sovereignty of the only state institution through which Pakistani people can enact their will, it seems the struggle for the purpose still needs to be waged, insofar as they need to be made subservient to the law.

The writer is a journalist and researcher based in Lahore and can be reached at umair.rasheed@lums.edu.pk