.. by Raza Muhammad Khan

Pakistan witnessed an unprecedented mayhem on 9 and 10 May, this year that shook the very foundations of its democracy and cohesion. The anarchy couldn’t achieve its intended aims but it had the potential of an internal implosion within the Armed Forces and the country. Mercifully, such outcomes were averted, due to the utmost restraint and patience shown by the security forces, and others who were attacked. However such misadventures continue to pose a much greater, non-traditional threats to Pakistan. I say this as our known nemesis is relentlessly exploiting  every crisis that we face, by their covert involvement in shaping our environment and perceptions and aiding, abetting or exploiting their aftermath. But it is heartening to note that, the chaos in May was generally disowned or condemned by the majority of our people.

The mayhem also produced a consensus opinion that retribution is warranted for those involved, as per our laws. Among others, the legal avenues available for the purpose included the Pakistan Army Acts (PAA) and the Government of Pakistan -Official Secrets Act 1923, (as amended), both of which are an extension of the Constitution since long. But as the military was the main objective during these attacks, the government had decided that those accused be tried by Army courts. Previously, following terrorist attacks at APS, that martyred  144 innocent children, standing military courts were established in 2015, through the 21st Amendment, which tried foreign and local terrorists (civil and military,) who frequently attacked institutions, security installations and innocent civilians, with impunity.

Other countries where such precedence is prevalent include Egypt, Tunisia, Morocco, Bahrain, Myanmar, Lebanon and India (draconian laws granting licenses to kill: AFSPA 1990, TADA 1990, POTA 2002 and Official Secrets Act). The SC has now ruled against the court martial of the civilians accused for the events in May but allowed their trials under ordinary criminal laws. Soon after, a senior petitioner claimed that the “Ruling would strengthen democracy, constitution and justice system”. This may be true, however equally imperative is the effect of this verdict on the safety of the country, the writ of the government and the rule of law. Essentially, our military laws were framed and amended to ensure effective performance of the multiple roles of the armed forces, two of which are outlined in Article 245 ie defence against external aggression or threat of war and assisting the civil power, (for establishment of its writ, internal security, countering terrorists etc) .

These laws are, therefore, the bedrock of assured security and are indispensable for a latent but associated third mission of the Armed Forces, contained in Article 260, which defines the security of Pakistan ‘as the safety, welfare, stability and integrity of Pakistan’. We have witnessed the effective use of these laws under the most challenging external and internal environment that is unlikely to change in the near future. They will, therefore, be central, at least till reformation and capacity building of our highly overloaded civilian criminal justice system for speedy and fair disposal of cases, affecting national security. However, no matter which laws are applied to deal with these cases, it’s paramount that the country is never, ever exposed to the kind of instability that we saw in May and beyond.

Further, the misuse, misinterpretation or selective application of related constitutional provisions, as a shield, by those who violate them, mustn’t be allowed. I wish to broach here, Article 19 of the Constitution that guarantees freedom of speech and expression’, but it also imposes unambiguous restrictions on them for ‘—the integrity, security or defence — public order, — or incitement to an offence’—. Similarly, laws inconsistent with Fundamental Rights are void, but the Constitution (Part 11, Ch 1, Para 8 (3) a,), allows temporary suspension of these rights “for maintenance of public order”. Unless these laws are rightly interpreted, and wholly applied, they will create dilemmas for the LEA’s to fulfil their constitutional obligations.

This will undermine deterrence of terrorism, encourage crime and enhance future threats to national harmony, unity and discipline. Presently transnational terrorists are rightly tried by special courts; nevertheless, domestic terrorism and sabotage are equally menacing, warranting fair and speedy disposal through all available domains of our justice system. While countries have their own laws and ways to confront organized attacks on state institutions, the case of Stewart Rhodes, the leader of Trump’s supporters, who stormed the US legislature in 2020, to disrupt the certification of Joe Biden as President may be somewhat relevant and instructive here. Rhodes was convicted for seditious conspiracy and sentenced to 18 years in prison. But before announcing his decision, the judge told him: ‘You are — charismatic and compelling and that’s what makes you dangerous,’ He was implying that demagogues, seeking support, by appealing to desires and prejudices of people, rather than using rational arguments, must be stopped from their hazardous manipulations.

Only time will tell what our courts will decide on the matter, particularly about those, who claim to have been misguided or who repent and promise to respect the laws in future. I must reemphasize that fundamental rights are protected; however, this shelter mustn’t be provided to some, at the expense of the rights of vast majority of law abiding citizens. Finally, if the government chooses not to appeal against the SC verdict on the matter, new laws may be needed to safeguard our foremost fundamental right: ‘Security of Persons and Life (Ch 1 Para 9)’, from violence. I am sure that our learned courts are cognizant of all such issues; and as guardians of the constitution; they know how to balance the scales of justice. Meanwhile it is the people, who shouldn’t overlook and always fulfil their sole, inviolable duty and constitutional obligation:’ Obedience to the Constitution and laws’ (Article 5(2). This done, prosperity and the quest for peace and happiness, cited in the ‘Objectives Resolution’ will follow.  .. Source

—The Writer is former President of NDU.  Email: [email protected]