This is a test of the leadership
Senator S M Zafar is one of the more dynamic members of the legal community; combining the political, academic, social, cultural and, of course, the legal in one man. He understands the politics of the law ministry. He is no stranger to the constitution. And he knows as well as anyone how Pakistan’s legal system has failed the public at large. And since these are extraordinary times – there is a war going on – he is in much demand to help explain how the centre-point of the government’s new counter-terror policy, military courts, will shift the delicate balance that holds institutions in place. Or, at least, the way it is supposed to hold things as they are.
In an exclusive talk with DNA, he explains how sometimes in war the law must adjust. And why he is willing to compromise on some of his own principles in the larger interest.
Question: The PML-N governments and Prime Minister Nawaz Sharif has a history to shifting difficult civilian matters to the army seeking for solutions. First the mess in ministry of water and power was handed over to the army for monitoring, then ghost schools’ busting was tasked to the military, then foreign policy and now fight against TTP. What do you have to add to the list?
SMZ: It is true that Nawaz Sharif has a chequered past vis-à-vis relations with the army. But the recent attacks of terrorists have changed the scenario altogether. Rather, I feel that Prime Minister Nawaz Sharif was caught napping and it was the army chief who rang the alarm bells after the attack on APS Peshawar. Even then, the PML-N government took a decision very late which reflects their weakness. Their dillydallying tactics over the formation of military courts are hampering the country’s progress to track down terrorists.
It’s inappropriate to make a comparison between the present scenario and Sharif’s past decisions of shifting the government’s job to the army. This is an extraordinary situation we are faced with today.
Q: What’s your take on the recent statement of former CJP Iftikhar Chaudhry, that military courts were unconstitutional and the constitution could not be amended for setting them up? Experts also say that the Supreme Court has given a judgement that independence of judiciary was a part of the fundamental structure of the constitution. Since military courts would hamper that independence, the constitution may not be amended.
SMZ: The recent judgements of the Supreme Court suggest that the points raised by Iftikhar Chaudhry and most of other experts are valid. The court in its recent judgments, including one bench headed by Iftikhar Chaudhry himself, also passed a judgement stating that amendments must not be made which harm the fundamental structure of the constitution. And independence of the judiciary is a fundamental part of the constitution.
But the judiciary, on the other hand, has also failed and one has to try military courts as the terrorists are hell-bent on eating away the state of Pakistan. So any amendment into the constitution for installing military courts should be with a sunset clause and it should be mentioned that the amendment would be for a short period of time.
Q: What is the longer term solution for this problem?
SMZ: Terrorism is an international phenomenon. There is a need for the government to look for out of the box solutions to the problem. Either we will have to take stringent measures without caring for fundamental rights or we will suffer. It is a bitter pill to swallow. The US, UK, India – all have taken stringent measures in violation of fundamental rights. So Pakistan would have to make arrangements according to its own circumstances and environment.
It’s a good omen to see consensus among politicians in the All Parties Conference (APC) over setting up of military courts to bring the terrorists to justice. But the government should know that if it is the defence of the country, the responsibility rests only with the government, which has the mandate of the people of Pakistan. Political consensus that leads to a compromise does not benefit anyone. The government needs adopt stringent measures. The politics of compromise is good but a compromised government cannot defend the country. The government would have to be courageous and show its will to go after terrorists.
Q: How should the head of state react in such a situation?
SMZ: When Abraham Lincoln suspended parts of the US constitution, he did not consult anyone. Though he was criticised severely by the US Congress for not being consulted over the suspension of parts of the US constitution, Abraham Lincoln said, “To me my country is more important and the constitution comes later”. He also established military courts.
After the 9/11 attack the Americans, instead of establishing military courts, kept people in detention for more than 3–4 years, torturing them, and inflicted insult on them without any remedy or recourse of the court.
The US President did not ask anybody for establishing the detention centres and all was done under an executive order by the US President. It was not only the infamous Guantanamo Bay Prison but the Americans established prisons all over the world – in Egypt, Germany and in Afghanistan. Bagram base was the biggest prison facility which was illegal under the US Constitution. All these detention centres were black holes and not a word of information could be leaked out.
This was not only a violation of the US constitution or the spirit of the US constitution but a violation of the human charter to which the US is a signatory. Therefore, it means that during a state of war, norms are different from measures taken during peace time. And some deviation from the fundamental rights, though temporary, is required to meet the extraordinary challenge.
Q: How should rights organisations react to such measures?
SMZ: Prime Minister Nawaz Sharif, both publicly and in the parliament, has said that the country was in a situation of war. So the scenario has changed. And let us change our minds too and adjust to the realities of the new situation.
I am a human rights activist and I hate to say whatever I have said. But for the sake of peace in my country, I am ready to take this bitter pill because this is not the time to play to a gallery but to save the public from the menace of terror.
I know that all decisions are not popular but correct decisions are finally upheld by history. Our parliamentarians, cabinet, and the prime minister should have the sagacity, efficiency and the will power to meet the challenge the country is facing. They will be remembered in history.
