On October 17, 1788, James Madison sat down and dipped his pen in ink to write a letter to his friend Thomas Jefferson. The two men had been involved in the drafting of the US Constitution—but for Madison the project was not finished. He had been giving great thought to a Bill of Rights and, being the great thinker that he was, he had misgivings about any such endeavour. Madison knew of the dangers that the “tyranny of the majority” could pose to any constitutional democracy. Hence, he realised that a Bill of Rights by and of itself may never be enough to guard against actions deemed legal by the majority.
He wrote, “experience proves the inefficacy of a bill of rights on those occasions when its control is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State.”
Once one is done admiring the poetic language (“parchment barriers”), there is reason to move from admiration to deep thought—and then relate this to present day Pakistan.
The word “constitutional” has a certain appeal—in theory, practice and rhetoric—that lends legitimacy to ideas. It invokes a higher purpose. Yet, as all lawyers and political scientists know, this purported legitimacy can be extremely deceptive—in theory and in practice. It can conceal deeply repulsive ideals and practices under the noble umbrella of something being “constitutional”. Nazi Germany was a perfect example of this.
And depending on your politics, I am sure you can point out the same about a number of other countries.
Now, let’s also get the obvious out of the way. There is a difference between something being “constitutional” (i.e. legal) and commitment to the rule of law. The latter judges rules/laws not just by their legality against prescribed procedures and competence of the law-maker but by a higher standard, i.e. facilitating equal treatment and shunning discrimination between various persons or classes subjected to law. States often find it easier to make something constitutional rather than abide by the rule of law. Pakistan is a perfect example of this. The systemic discrimination embedded in the constitution brings this out starkly. The military courts only reaffirm this.
When laws are drafted, they ensure one fundamental thing: visibility of action by the state. Everything that was earlier going on in the dark (when no law existed on the subject) now happens in proverbial daylight. But this too is deceptive because each state has secrets to guard and skeletons to hide. Hence making a law fulfills another purpose: the state can pretend to be acting a particular way prescribed by law—but it may not do so and often does not do so in situations that pose the greatest problems/dangers.
And here the voice of cynicism takes over.
This is not insignificant by any means and I urge you to keep this voice alive.
If we believe that the most dangerous terrorists will be tried before military courts, we are being hopelessly naïve. The military courts have not been introduced by the 21st Amendment to try the most dangerous terrorists. The 21st Amendment has one basic purpose: advertisement and swaying public opinion. The state is saying, look we are going to try all of these dangerous terrorists before courts. And these courts, just in case you had constitutional objections, are now “constitutional”. What the state is not saying is that countries faced with armed insurgency have always found trials of the most dangerous terrorists embarrassing and inconvenient. The military courts will only try the odd poster child of terrorism before courts. A large number of dangerous terrorists, and those dubbed terrorists, will still be dealt with through methods that may never come to light.
Therefore, once we sign onto the idea of military courts, we the people start believing that there is now a speedier ‘legal’ process to deal with the enemy. But in a state characterised by civil-military imbalance over matters of security, the law has little use.
Our politicians and military give us assurances that political workers and dissidents will not be tried under the military courts. But what they fail to say is this: the marginalised political dissidents (particularly in Balochistan) were never tried before any courts in the first place. Hence, the military courts are a guarantee of one thing only: of nothing. They are, if anything, a “feel good” factor.
Military courts will not make the process any more transparent. They only add nationalistic gloss to the existing system and further undermine the notion of civilian supremacy. The real worry, therefore, is not what will happen in our name before the military courts but what has always happened in our name by keeping us in the dark. To that extent, the 21st Amendment is only one chapter in a dark history.
Hence if you care about Pakistan’s two greatest problems — growing extremism and the civil-military imbalance — there is reason to despair. Extremism is not going to subside with speedy trials. But do not despair too much about justice or the rule of law in the war against terror. Those were values and standards already compromised because of lack of civilian oversight over military action in the war against terror. And, even on the civilian side, we have often abandoned the idea of rule of law—especially when it comes to matters that we deem threatening. This is true for areas such as speech, control of the media, law’s treatment of minorities, women and other vulnerable groups.
The latest amendment to the Constitution therefore only tries to ensure that we throw our weight behind the latest advertisement and abandon questions we might have asked. The 21st Amendment exhorts us to pretend that just because we have moved past a “parchment barrier”, things will somehow be different.
None of this is meant to say that we should not support our soldiers, intelligence or law enforcement agencies in this war. They make sacrifices for us that most of us cannot imagine. But we must not sacrifice higher ideals such as civilian supremacy in the process.
The only remedy, therefore, is to support our politicians in ensuring that real democracy with civilian control of military affairs and operations takes root. Perhaps our politicians signed onto the 21st Amendment because most of them knew that what really matters is already not in the public eye.
We may disagree with them about military courts but we must support them by asking more and more questionssince our questions will empower them to fight the only battle that will make us secure in the long run — a civilian government strong enough to demand answers about all that goes on in the dark.