Daily Times Editorial Jan 30, 2015

Legal challenge The legal community has initiated its expected challenge to the 21st constitutional amendment, the amendment to the Army act 1952, and the setting up of military courts that flow from these. First and foremost, the Lahore High Court Bar Association (LHCBA) has moved a petition to the Supreme Court (SC). Again not unexpectedly, the petition bases itself on three broad grounds. First, the 21st constitutional amendment changes the basic structure of the constitution; second, it violates human and fundamental rights, and three, it sets up a parallel judicial system for which there is no provision in the constitution. The basic structure argument revolves around Articles 2 (independence of the judiciary), 8 (fundamental rights) and 175 (3) (separation of the judiciary from the executive). A three-member bench of the SC headed by Chief Justice of Pakistan (CJP) Justice Nasirul Mulk and comprising Justice Gulzar Ahmed and Justice Mushir Alam hearing the petition first and foremost rejected a verbal plea by the LHCBA president Shafqat Mehmood Chauhan to stay the formation and functioning of military courts, which the government was on the verge of implementing. Instead the CJP, acknowledging that questions of great constitutional and legal importance have been raised in the petition, issued notices to the law officers of the federal and provincial governments, i.e. the Attorney General and the Advocate Generals respectively, to submit detailed replies to the petition’s arguments within two weeks. Justice Alam sought the opinion of the LHCBA counsel Hamid Khan on the admissibility of the petition considering Article 239 (5) bars challenges to constitutional amendments duly passed by parliament before any court on any grounds. Hamid Khan said he would argue the point at the next hearing. The issuance of notices to the executive through their top law officers seeking detailed replies means the battle royal anticipated between parliament and the military in one corner and the judiciary and lawyers’ community in the other has now been joined. This is a case of fundamental importance having multifarious implications for the government, military, judicial system and the struggle against terrorism. The Pakistan Bar Council too has entered the fray by holding a black day on Thursday and announcing its intent to also challenge these laws and steps before the apex court. Seven petitions are reported to be with the Lahore registry of the Supreme Court already. It is possible that the SC may club all these petitions since they relate to the same or similar matters. Meanwhile the cast of usual suspects defending the interests of our religious lobby and thereby indirectly the terrorists has also put in its two cents worth. Imran Khan and the Markazi Jamiat Ahle Hadith have both separately come out against the ‘deception’ of keeping the focus of the military courts only on religion- or sect-based terrorism at the insistence of the secular parties who feared their dissident views may invite the unwanted attention of the military courts. What these honourable defenders and supporters of the madrassas and the people who run them miss or deliberately ignore is the plethora of reports and facts that trace not all, but a substantial number of terrorists over the years to one or the other madrassa. The very nature of the religious education provided in most if not all these institutions inclines their charges towards extremism and worse. Imran Khan’s Naya Pakistan would increase funding to madrassas, based on the notion that before the British advent in the subcontinent, these were the main educational institutions amongst Muslims that were later destroyed by the colonialists. Here too the narrative misses or ignores what has happened to the madrassas since, and particularly after the Afghan wars spawned a whole industry of madrassas funded by Saudi Arabia and the Gulf countries churning out thousands of seminary students, many of whom ended up in the ranks of the terrorists. Whatever their historical contribution, the madrassas of today, as they have evolved, cannot be simply wished away on the notion that they can be restored to their past positive role. That will take more than increased funding. It will take, amongst other things, a return to the spirit of learning and free inquiry that informed Muslim education historically and which led to the enormous fund of old and new knowledge Muslim scholars and scientists brought forth, an outpouring that later fuelled the west’s transformation towards modernity. If the Muslim world went into decline and lost the plot, wishful thinking cannot turn the clock back to an ideal past. Serious and concrete examination of the present day role of the madrassas is needed to salvage from their extremist bent what is salvageable and developable and rejecting trends that lead to the terrorist gate.