The Constitutionalism, the National Action Plan & the Criminal Justice System in Pakistan



The National Action Plan (NAP), consisting of twenty policy actions to fight terrorism, has got attention from all quarters due to its anecdotal, administrative and political origins. Although many analysts and experts have discussed its various facets in their writings, the aspect that has received only a little or even zero attention is the constitutional and legal status of the Plan that could guarantee its sustainability and institutional entrenchment besides its relationship with the criminal justice system of Pakistan. The instant write-up is aimed at adumbrating on four legal aspects of the NAP. The first and the foremost among them is its constitutionality. The second is its relationship with the criminal justice system of Pakistan; the third is related to the NAP’s relationship with the Fundamental Rights while the fourth part is about the Apex Committees formed to oversee the NAP’s implementation in each province. The discussion is purely rudimentary in nature, in that, it does not aspire to judge upon the legality, but to underline the relevant areas that may be of interest to an informed and legally literate citizen of Pakistan.

1. NAP’s Constitutionality

The point of departure about the NAP’s legal aspects is its constitutionality which finds little textual backing from the Constitution of Pakistan 1973, even so its component parts may separately be pegged into different provisions of the Constitution. The persistent questions that a constitutionalist would ask are: what is the constitutional and legal basis of the NAP? Whether it, as a whole, has sanction of the parliament? Whether the decisions taken in an All Parties Conference can have constitutional status without following the parliamentary processes as prescribed in the rules of business under Article 67 of the Constitution for the National Assembly and the Senate?

It is true that in order to pursue Point 2 of the NAP (establishing of military courts), a constitutional amendment (21st Amendment to the Constitution) was passed and successfully defended before the Supreme Court of Pakistan, but what is the constitutionality of the NAP, in toto, is not fully ironed out. Another constitutionality-related aspect is that what is the scope of its application? Its content shows that it covers all parts of Pakistan: all the provinces and the territories under the federal control. The applicability of the NAP to federal territories especially within FATA without formal executive orders of the President, as required under Article 247 of the Constitution, may be arguable. Likewise, NAP’s relationship, as a federal government plan, with the constitutional machinery and system has not been fully developed to authoritatively settle the issues that impede its implementation. For example, Point 20 of the NAP envisions revamping the criminal justice system, which is essentially a provincial matter subject to Articles 142 and 143 of the Constitution that place some caveats on legislative competence of the provinces in their dealing with the criminal laws. Finally, one may think why this all legalese? The legal and constitutional cover minimizes the chances of discretion in a policy decision; the decisions get institutionalized and do not remain individualized as happens so often in our administrative and political arena.

2. NAP and the Criminal Justice System

Good or bad, the criminal justice system is not an abstract concept in Pakistan. This system is provincially organized and in each province, there are semblances of it that work under laws and consume budgetary allocations. These comprise police, prosecution, judiciary and jail and correctional staff. The potential of the system that provides an ultimate platform for implementation of any policy decision has not been integrated with the NAP. The vertical and horizontal linkages of the criminal justice system, on organizational and functional levels, among provincial and federal governments have not been thought through. For example, Point 6 of the NAP talks about ‘choking’ financing of terrorist networks: how a financier of terrorism can be permanently stopped? Saving illegal pull-offs and extralegal measures — the only way to do so is by getting such person’s conviction on the basis of hard evidence, which can only be gathered through effective coordination among the provincial, federal and autonomous organizations and through effective supervision by the respective high courts or the judge appointed in a federal special court in areas under his jurisdiction. The multi-agency environment that allows the FIA, NAB and provincial police organizations to investigate the same crime often results in forum shopping by the accused and the result is usually botched convictions. The criminal justice system of Pakistan is a product of legislation and the NAP, as a whole, is not so knitted through a legislative device: the result is that both of these do not configure fully and the outcome is distorted and troublesome. There may be many problems with policymaking in Pakistan, but the most complex is that it does not build upon the existing systems and tends to reinvent a solution for every challenge that it faces.

3. NAP’s Relationship with Fundamental Rights

The third aspect with reference to NAP’s legal aspects is its relationship with the Fundamental Rights guaranteed under the Constitution of Pakistan 1973. This aspect needs to be refined for the sake of perception and for the sake of procedural justice. The Constitution provides as many as twenty-one Fundamental Rights (Article 9 to Article 28), with the latest Fundamental Right to Fair Trial and Due Process introduced through the 18th Amendment, that are not mutually exclusive with the policy decisions of the NAP, but the coyness on the  part of the state to expressly admit coexistence of the two policy decisions (i.e. the NAP and the enforcement of the Fundamental Rights) provides an opportunity for presumptive criticism, for the outsiders, and for opaque processes, for the insiders. Barring its military courts part — which has been endorsed by the Supreme Court — the NAP has not provided anything that is contrary to black letter law of the Constitution. In fact, in some of its points, it has called to implement the Constitution: Point 3, for instance, provides that there shall be no private militia — this is exactly what Article 256 of the Constitution has provided for when it says that the private armies shall be forbidden. In absence of any contrariness, the relationship of the NAP and the Fundamental Rights can be coalesced through procedural checks and balances.

4. NAP and Apex Committees

At present, NAP’s implementation is being monitored through Apex Committees in which senior army officers participate and coordinate with all the stakeholders to keep up the pace of the Plan. The Apex Committees can be institutionalized, for the sake of legality and consistency, by getting formal endorsements about its constitution and functioning from the Council of Common Interests (CCI) that pools all the provinces together under the federal government under Article 153 of the Constitution. The NAP, as a document, can also be got endorsed through the CCI under Article 154(1) of the Constitution.

Concluding Remarks

Article 4 of the Constitution provides for the rule of law, implying thereby that the country shall be ruled by the Constitution. The rule by constitution may be difficult, but it may not be impossible; it is the only way forward. The content of the NAP is likely to sustain long and yield results if it is provided legal cover through the existing constitutional mechanisms as envisaged by the Constitution of Pakistan, 1973.

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