Nations do inane things under panic. Pakistan has chosen to amend its constitution to empower the armed forces to execute "religious terrorists" without due process and fundamental rights otherwise available under the criminal justice system in civilian courts. This extreme constitutional measure is taken in reaction to the December 16 attack on the Army Public School in Peshawar where more than a hundred students were brutally massacred.
Within hours of the school attack, the civilian government, on the urging of military officials, removed the ban on executions and revived the death penalty held in abeyance since 2008. Three days later, five persons involved in an assassination attempt in 2003 on General Pervez Musharraf were executed. (The armed forces have already been pressuring the government not to vigorously pursue the treason case against General Musharraf who, in imposing unconstitutional emergency in 2008, had shown unprecedented contempt for the Pakistan Supreme Court.) Politician Imran Khan, who was waging a headstrong campaign to derail democracy, allegedly in collusion with elements in the military, came off his high horse (shipping container) and called off his campaign in a show of solidarity with the armed forces. The scene was set to amend the constitution in favor of military courts.
On January 6, 2015, the National Parliament passed the Twenty-First Amendment to the Constitution to allow the establishment of military courts to pave the way for "the trial of persons ... who claims, or is known, to belong to any terrorist group or organization using the name of religion or a sect (sic erat scriptum)." The Amendment allows military courts to try civilians accused of religious or sectarian terrorism.
Even more importantly, the Twenty-First Amendment denies fundamental rights to the accused tried before military courts. Ordinarily, any law incompatible with constitutional rights is void and any legislature, federal or provincial, is prohibited from enacting any law that takes away or abridges the constitutional rights declared in Part II of the Constitution. However, the protection of fundamental rights is not absolute. The legislature is empowered to derogate from constitutional rights with respect to the laws listed in the First Schedule of the Constitution. The Twenty-First Amendment expands the reach of the First Schedule to allow military trials of religious and sectarian terrorists without fundamental rights.
Consequently, persons tried before the military courts will be denied the fundamental criminal justice rights, including the right to attorney of choice, the right to fair trial, and the right not to be tortured for extracting evidence. In other words, persons accused of religious or sectarian terrorism will have minimal rights and may be convicted and executed without due process that the Constitution guarantees before civilian courts. Minimizing protective rights and reinstituting capital punishment at the same time constitute a travesty of justice over which Senator Raza Rabbani, a reputable constitutionalist lawmaker, has reasons to be tearful.
Striking Down Twenty-First Amendment
A petition has been filed in the Pakistan Supreme Court to challenge the Twenty-First Amendment. The Supreme Court Bar Association as well as many other lawyers' organizations oppose and distrust the Amendment. Sound arguments are available to declare the Amendment incompatible with the Pakistan Constitution. I present two arguments consistent with Pakistan's international obligations.
1. The notion that the Parliament is sovereign is no longer an acceptable paradigm of law. This anachronistic slogan belongs to the seventeenth century English struggle between royalty and the parliament and was touted to claim the supremacy of people's representatives over royal prerogatives. Now, every parliament is bound by the national constitution, written or unwritten, all of it and not some of it. No parliament can amend the constitution in ways to undermine its basic structure or organic unity. For example, even an absolute consensus among all political parties to eliminate future general elections will be incompatible with the basic structure of a democratic constitution. Likewise, a constitutional amendment to exterminate a religious or sectarian group will be inherently unlawful. Modern constitutions limit sovereign powers to protect rights and liberties. Any constitutional amendment that eliminates fundamental rights to expand executive powers is inherently suspect and subject to the highest possible strict scrutiny. The Twenty-First Amendment cannot stand because it curtails important criminal justice rights to expand the powers of military courts.
2. Under International Covenant on Civil and Political Rights, a universal human rights treaty that Pakistan has ratified, not all rights can be suspended even under extreme emergencies. The Covenant allows a temporary suspension of certain rights "in time of public emergency which threatens the life of the nation." Suppose that Pakistan is indeed facing such a public emergency. Even in such grave circumstances, the Covenant does not allow the suspension of right against torture or cruel, inhuman, or degrading treatment or punishment, or arbitrary deprivation of right to life. The military courts before which the accused will have minimal rights but faces capital punishment in view of evidence extracted through torture or other degrading treatment cannot meet the obligations of the Covenant.
The militarization of Pakistan Constitution is a great setback to the rule of law and the protection of fundamental rights and liberties under the Constitution and International Covenant on Civil and Political Rights. The lawyers of Pakistan stand against the unlawful amendment to the Constitution, which allows the extraction of evidence through torture and provides little protection against the arbitrary deprivation of life. The Pakistan Supreme Court needs to carefully review the legality of the Twenty-First Amendment and may strike it down to safeguard the basic structure of the Constitution and to meet Pakistan's obligations under the Covenant.