What Pakistan’s 27th Constitutional Amendment Means To India – OpEd
Contentious Amendment
Being an internal issue, any changes made by lawmakers to a country’s constitution shouldn’t be a matter of concern for outsiders. Yet, the 27th amendment in the constitution of Pakistan has invited widespread criticism from not only international legal and rights organisations but even the United Nations [UN] and there are valid reasons for the same.
Geneva based International Commission of Jurists [ICJ] has called this amendment a “flagrant attack on the independence of judiciary and rule of law.” It has also raised “serious concern about the grave consequences of the ongoing dismantling of the rule of law and the resulting violations of human rights in Pakistan.”
ICJ has also questioned the “grant [of] lifelong immunity from criminal proceedings and arrest, as well as protections against civil proceedings to the “honorary” ranks of the Field Marshal, Admiral of the Fleet, and Marshal of the Air Force,” noting that “Such sweeping and unconditional immunities are contrary to core rule of law principles including accountability, access to justice, and equality before the law.”
London based International Bar Association's Human Rights Institute [IBAHRI], an autonomous and financially independent entity working with the global legal community to promote and protect human rights and independence of the legal profession worldwide too has expressed serious concerns on the 27th amendment.
IBAHRI Co-Chair Hina Jilani has noted with concern that “With lifelong immunity from prosecution for Pakistani presidents and some other individuals [Field Marshal Syed Asim Munir], the amendment mocks accountability and the principle of equality before the law for all citizens.” She has also pointed out that “the systematic judicial harassment of judges by way of forced transfers and the deliberate fragmentation of the authority of the Supreme Court are part of a calculated effort towards ensuring impunity.”
IBAHRI Director Baroness Helena Kennedy states, “By constitutionally shielding officials of the state from criminal scrutiny, Pakistan fails to ensure accountability and undermines the very framework required to protect human rights.”She has further added that the “newly established [judicial] appointment system and the administrative coercion of judges poses a severe threat to the judiciary’s capacity to decide matters… as per the core requirements UN Basic Principles on Independence of the Judiciary.”
UN Office of the High Commissioner for Human Rights [OCHR] press release of November 28, reads, “UN High Commissioner for Human Rights Volker Türk said today that Pakistan’s hastily adopted constitutional amendments seriously undermine judicial independence and raise grave concerns about military accountability and respect for the rule of law.”He also “warned [that] the amendments run counter to the separation of powers that underpin the rule of law and safeguard the protection of human rights in Pakistan.”
‘Post Hybrid’ System
That the 27th constitutional amendment is Field Marshal Munir’s brainchild is abundantly clear from the fact that he’s the one who has benefitted the most from it. The newly created Commander of the Defence Forces [CDF] post gives him overall command of the country’s armed forces and this unquestionably makes him the most powerful man in Pakistan. Another sure giveaway of the field marshal’s behind-the-scenes maneuvering in drafting the 27th amendment is the inexplicable provision of providing him with lifetime immunity from criminal persecution contained therein.
Sweeping changes in the judicial setup give a strong indication of a motivated attempt to[in the words of IBAHRI co-chair Mark Spencer] “undermine judicial independence, weaken constitutional checks and balances and elevate state officials beyond the reach of the law.” Some other scathing observations made by Spencer:
- “This Amendment acts as a comprehensive legislative strategy designed to subordinate the judiciary, institutionalise political control and place above the law the President and highest-ranking military.”
- “The democratic ideal of the separation of powers has been replaced with the institutionalisation of military dominance. ‘Exceedingly worrying is the creation of a permanent Federal Constitutional Court [FCC] and the removal of the protections for judges. [sic].”
- “Pakistan’s Supreme Court has been turned into a pawn of the Executive [sic]. The international community must come together and speak out against these grave infringements on the rule of law.”
Former Wilson Center's South Asia Institute Director Michael Kugelman has aptly summed up the essence of the 27th amendment by saying, "For me, this amendment is the latest indication, perhaps the strongest yet, that Pakistan is now experiencing not a hybrid system, but a post-hybrid system," adding that "We're essentially looking at a situation where the civil-military imbalance is about as imbalanced as it could possibly be."
Implications for India
By citing irreconcilable incompatibility of an Islamic Pakistan with what he perceives to be a ‘Hindu’ India and alleging that “India is actively funding and supporting banned outfits like the Tehreek-i-Taliban Pakistan [TTP] and Balochistan Liberation Army [BLA] to destabilise our country," Field Marshal Munir has further heightened anti-India sentiments in Pakistan with a heady mix of ultra-nationalism and religious fervour.
To assuage rising public anger against rising fatalities of security force personnel due to incessant attacks by TTP and armed Baloch groups, the field marshal has vowed to take action against those he claims are abetting terrorism in Khyber Pakhtunkhwa [KP] and Balochistan [India and Afghanistan]. By declaring that “It’s my duty to avenge the blood of every Pakistani” and launching trans-border attacks across the Durand Line, he may have played to the gallery, but people have now started questioning as to why he is so hesitant in doing likewise to ‘punish’ India.
On this issue, Field Marshal Munir has boxed himself into a corner by his frequent threats, like avenging New Delhi’s decision to hold Indus Water Treaty in abeyance by bombing any dam that India builds, and ensuring systematic destruction of India by declaring “We’ll start from India’s East, where they have located their most valuable resources, and then move Westwards.” It won’t be long before the public demands that the newly appointed CDF walk his talk by acting against India.
Unlike Afghanistan, initiating any offensive military action against India would invite massive retaliation, and so the CDF has no other option but to escalate the proxy war that the Pakistan army has been waging against India for more than three decades. This inference is supported by continuing infiltration attempts across the Line of Control [LoC] as well as the recent discovery of a Jaish-e-Mohammad [JeM] terrorist module comprising doctors in the heart of India.
Post Operation Sindoor, JeM founder Masood Azhar announced creation of JeM’s women wing named Jamaat-ul-Mominat. Alleging that "The enemies of Jaish [JeM] have put Hindu women into the army and set up female journalists against us," Azhar has pledged to "mobilise his women to compete and fight against them." This development adds yet another dimension to Pakistan’s multipronged proxy war against India that can't be disregarded.
Some analysts opine that even though Pakistan army sponsored terrorist attacks against India would continue, Field Marshal Munir will try to ensure that while the scale of terrorist attacks are such that it pacifies the domestic audience, its intensity is so controlled that it doesn’t breach the threshold and invite retribution from New Delhi. However, to hope that radicalised terrorists would be able to exercise restraint while perpetrating acts of violence to avoid any escalation is nothing but a case of great expectations.
So, New Delhi needs to remain alert and prepared. There’s an inescapable need for it to invest more in revamping the intelligence gathering network so that there's a quantum enhancement in its ability to take proactive actions based on timely inputs. And as the probability of Pakistan based terrorists going overboard is very high, there’s also a need to be ready for undertaking salutary retributory actions against the masterminds of any major terrorist attack.
Since the masses in Pakistan have been indoctrinated into believing that India is an existential threat, bleeding it ‘through a thousand cuts’ not only placates them but also diverts public attention from the Pakistan army’s humongous failure in subduing TTP and armed Baloch groups. Thus, waging proxy war against India serves as Rawalpindi’s golden goose that it will never sacrifice or let go of.
Hence, New Delhi cannot afford to be complacent, especially when Pakistan has a legislature that's completely subservient to the military, a judiciary set to lose the last vestiges of its independence thanks to the 27th constitutional amendment, a muzzled media and most importantly, an all-powerful, highly ambitious and rabidly anti-India CDF, who out of sheer desperation could well cross the red line!