The writer is a Lahore-based lawyer. The views expressed by the author are his own saroop.ijaz@tribune.com.pk
Finally, we have a ‘eureka’ moment and all the rest of it regarding the solution to our “existential crisis”, “battle for survival”, etc. Briefly stated, we have diagnosed the obstacle that hindered our progress in eradicating terrorism, it was the “Courts” (adding civilian seems, or at least seemed, surplus to requirements).
It is incredible and horrifying how the narrative has changed post-Peshawar attack. The magnitude of the atrocity was such that culpability had to be fixed and action had to be taken and hence here you have it; the failings of the Generals become those of the judges overnight. The ISPR has written the book on spinning horrendous failures into PR successes. The OBL fiasco was turned into a failure of the civilian government to protect sovereignty, etc. The Commando would have delivered Kargil on a platter had the civilian Prime Minister not messed up. When a major journalist is shot, the issue is not who shot him and why, etc., but whose picture was flashed for how long. In a nutshell, all of this is an extension of the argument that there are military takeovers because the “civilian class” is not up to the task. The adventurers are blameless since they cannot resist the temptation when they see an opening.
In days of infamy gone by, we use to call it the “doctrine of necessity”. One wonders what would be the establishment of military courts termed this time around since we know that the “doctrine of necessity” has been buried deep, etc. The catch with this wonderful doctrine is that the “necessity” in question can be manufactured whenever necessary, from planes in thin air to blood sprinkled classrooms.
To reiterate what is wrong with military courts is to stress the obvious. It strikes at the root of separation of power, with judges being part of the executive and not trained to adjudicate. To say that only “jet black” terrorists will be tried in military courts compromises the fundamental integrity of due process since the investigating agency will already make that determination, and the presumption of innocence will be denied to begin with. For those who are confident that the ambit will not be broadened, it might be instructive to look at Egypt as a recent case study.
However, none of that matters. The sales pitch for “military courts” has resonance and that is all that matters. Similarly, asking to reflect and amend the counter-terror law and criminal justice system instead of the present execution frenzy is to be soft on terror since the news of execution of random people will surely have Fazlullah shaking in his chappals.
There is a flip side to it. Parliament has indeed surrendered. The capitulation does not come in a vacuum, it comes in a context where the failure to hold militants accountable is being marketed solely as a civilian failure and the military dominates the “National Imagination”. It is still capitulation and it is still shameful. The transition to military power is now complete. No one had the nerve to ask the Military of its past record of failing and complicity. No one had the conviction to defend the spirit of the Constitution. Parliament is and should be free to make its own mistakes, yet it is indeed a grave mistake.
The failings of the judiciary are many. However, Military courts do not address any of them. Instead of empowering a weak judiciary to fairly convict terrorists, we replace them with Military courts. Sounds familiar, does it not? Replace a weak democratic government with a Military one. Equally significantly, the attempt seeks to package terrorism as an exclusively judicial problem is much more than eyewash, it is dangerous and diversionary.
One also gets the feeling that civil-military does not explain the entire story. After the Peshawar tragedy and the string of attacks leading up to that point, the civilian political class also wanted an out, a scapegoat, a soft target. Their vanity does not allow to admitting to shoulder some of the blame themselves and their fortitude (or lack thereof) means that asking the “boys” to take some responsibility is out of the question. The fundamental problem is that the weakening of the judiciary has only come back to haunt the civilian political class at the time of each military takeover.
The politicians might be feeling slightly smug (mostly strong armed probably) at shifting the blame to the Judiciary. They are missing a fundamental point; Pakistan is either a “National Security” state or it’s not? This more than ever seems a rhetorical question at this point. It is a security state and the apportioning of blame within the civilian ranks is simply a matter of convenience and the civilian leadership has no say in it. Military courts are many things; however, they are unquestionably a statement that less democracy is the answer; separation of power is nonsense and the Constitution an annoyance, etc. It is unnerving; however, no accident that “Less democracy” is the answer to most of our key questions from corruption to ethnic strife to now terrorism.
Ideally, it should not be about civil versus military (perhaps it isn’t, since it is pretty much a walkover) and should be about Pakistan versus religious militants. We live in a time and place far, far away from the ideal. One can take the word of the government and the Military on face value and believe that this time around there is a sincere intent and determination to take on the terrorists. It is perhaps best to begin this fight with honesty, admitting to past failings and complicity. The answer lies in more democracy, not less. “Boys” will be “boys” and one has learnt to expect nothing else, however it is shameful and dispiriting that our great democrats do not see “more democracy” as an answer.
Published in The Express Tribune, January 4th, 2015.
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COMMENTS (53)
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@Freeman: The author most probably meant Less Freedom instead of using the term Democracy. .Pakistan is neither an Islamic republic nor a democracy per se; it has a system of electing legislators and accepting the leader of the party receiving the majority votes as the Prime Minister of the country. The prime Minister then acts. as a dictator and governs the country with his cronies! The country has the institutions and the laws from the colonial times which every now and then get amended or expanded. Nothing appears to have changed fundamentaly since its independence.
Rex Minor
Chile had Military Courts under Pinochet's rule and did rather well ...only a few Thousand were missing and death squads roamed free ..cleaning up the filth ..maybe such courts are a blessing in disguise .
@SV: The concept of "due process" is part of the Western legal system enshrined in the US Constitution, for example. The writer, who probably studied the Western law books in his law school, is overlooking aspects of Pakistani legacy (i.e. British) system that are now hopelessly comingled with Sharia in which "due process" does not exist in the same rigorous way. How do blasphemy prosecutions entail due process when the level of evidence permitted is so low? Whether Pakistan needs less democracy does not proceed only from whether there are to be separate military courts. After all, many countries have a military penal code and judges and lawyers for trying cases involving terrorism and actions during war. There is an ICC based in Hague that transcends national boundaries and can prosecute individuals for war crimes. The concept of democracy chosen by Pakistan over 67 years has never been a pure democracy as we know it as it has injected religion (and inequality) from the very beginning and created classes of people depending on sect or religion. The military has always been a de facto separate organ from the executive branch, reinforced by at least four military interventions of civilian rule. People, like this writer, who know more about the Western legal system, often times conflate it with the Pakistani one, assuming the latter provides all the provisions and practices of the former.
The same District and Sessions Judge has been actively meeting lawyers persuading them not to represent us in our appeal before the august Supreme Court of Pakistan. The Said Judge himself has engaged Mr Shariffuddin Pirzada to represent him in Supreme Court.
One wonder how a judge with salary of RS 200,000 can engage a lawyer who charges RS 2 million for a simple motion. Is there someone who can ask this Judge how he has managed to pay this money?Or the office of Mr. Pirzada was kind enough to represent him for free.
Justice is always for sale. Whoever bids high buy it. Its these hard facts that the media and civil society needs to bring into limelight and suggest measures to remedy it. But it is abundantly clear that with Judges like Mr. Mohamad Rauf, District and Sessions Judge D.I. Khan the judicial system is dysfunctional before a monster like Terrorism.
Its time for hard talk and self reflection coupled with the vigour and willingness to iron out black sheeps in the Judiciary. Judiciary as an institution needs to start doing justice inside judiciary first. I wish the Khakis good luck in their endeavours.
The author does have a bias, but regardless, he is mostly right. The civilian leadership and courts are not up to the task of taking on the monumental crisis that they face in the current do-or-die situation, but whatever solution the establishment comes up with will be short-lived at best if they do not come out clean about their past follies and make a sincere, public resolution to depart from those policies (this includes the now-redundant idea of ‘taking back Kashmir’, ‘strategic depth’ and any remnants of General Zia’s legacy in any national institution).
@Alfa Romeo: Get your facts right.It was not the boys who lost half the nation but your daddies namely ZA BHUTTO, MUJIBUR and your Aunty INDRA.All three met their end through Divine Justice through their own people!
@ishrat salim: "In our country ” kleptocracy ” has replaced ” democracy “." No sir. Kleptocracy and democracy cannot coexist as the former is possible only in dictatorships. In democracy the corrupt can be made accountable and replaced. As we saw the former PPP rule was replaced. If the present rulers are corrupt, the Judiciary should take sue motto notice and the NAB should function honestly and efficiently. Intellectuals like you should help the nation by providing evidence of the corruption of the present democratic govt. so if it is really corrupt action must be taken against it. Loose talk which does not provide credible evidence for corruption is only misleading and irresponsible and highly unsuitable for intellectuals of your caliber.
The word " democracy " has become synonymous with word " mock racy ".Democracy in our country is a purchasable commodity available to the highest bidder. This is due to the fact that we have not allowed democracy to flourish from grass root level, in the absence of which governance at the community level for democracy to function effectively, the individual stakeholder has no place. Article 140 A says" each province shal by LAW, establish a local govt system & devolve political, administrative & financial responsibility & authority to the elected representatives of the local govt.
Unfortunately, in almost 7 years of civilian democratic govt, we have not yet executed Local govt election as enshrined in our co stitution. ?
" the constitution of Pakistan must be an effective document, protecting the fundamental rights of the people, not a meaningless paper that is held aloft by greedy & selfish to perpetuate their own rule while riding roughshod over basic rights & aspirations of the citizens. Such a document is not worth the paper it is written on ".
Do we fall in both the above category - Democracy & Constitution ?
So, what democracy & Constitution are we all talking about - day in & day out ?
In our country " kleptocracy " has replaced " democracy ".
@Mother: And why not say a prayer for the mother and the child who are dying because of military areal bombing? Pakistan will need the creators blessings and a generation to come out of the trauma which its army deliberately provoked. Unless the people are willing to cross over the theshold of the vengence and hate it is not likely that even God almighty will be prepared to forgive the people who are piling up crime against humanity in their midst.
Rex Minor
Our Institutions needs to have a hard talk and sincerely reflect on their failings. They need to start their cleaning their own house before pointing fingers at others. They need to set high standards of professionalism, competence, and accountability that could set precedent of high moral conventions in our governance system.
Such conventions would be unwritten rules of our governance system that would be adhered to as strictly as the legal rules. Unfortunately our judiciary, police, and prosecution is corrupt to the core and dysfunctional.
Mr. Mohammad Rauf, District and Sessions Judge D.I.Khan is the most appropriate example of rampant corruption in our District and Superior Judiciary. Mr. Mohammad Rauf was originally from Police Department. He served as PSI in the District Police Kohat before joining District Judiciary of KP. Mr. Rauf recently misused his position as a District and Sessions Judge D. I. Khan and his connections with the Police Department to register a fake and concocted FIR against his real uncle to force him to surrender his house and property to Mr. Rauf. It took District Judiciary four years to realize that FIR was concocted and there was nothing to substantiate. His real uncle/complainant filed a complaint against Mr. Rauf in Peshawar High Court. The Inquiry Officer went to an extreme extent and exonerated Mr. Rauf. The Inquiry Officer did not summon two key witnesses against Mr. Rauf and declared them dead and sick, therefore they could not appear. Hence, Mr. Rauf was exonerated due to lack of evidence. The witness who was declared dead appeared on the local tv interview and told the Peshawar High Court on live TV that he was very well alive and should be summoned by the Peshawar High Court for testimony. When the Registrar of the Peshawar High Court was contacted he termed the declaration of the witness being dead as grammatical error in the Inquiry Report but still declined to call this witness in order to record his testimony. The so called Independent Judiciary failed to take any notice of the misuse of office by Mr. Rauf even though it was reported both on electronic and print media. The Complaint was filed in the Human Rights Cell of the Supreme Court. The staff at the Human Rights Cell dismissed our application without explaining any reason and refused to give the certified copy of the order/findings. This what our Independent Judiciary has done to a person who is educated and law knowing, imagine what would be the fate of a person who is illiterate. The Superior Judiciary headed by Mr. Iftikhar Chaudry took suo moto notice of Atiqa Odho wine bottle but Mr. Rauf skipped his eyes. Do you seriously think that such judiciary is going to deliver justice.?? I would appreciate your guidance.
The guy is a lawyer. He makes his living by these useless courts and joke of a constitution. No wonder it hurts him. Only answer is military courts, just kicm out these coward judges and scrap the courts.
Ideally speaking, if the political leadership, political and governance institutions (Parliament, Executive PM + (DMG, Police, and Judiciary) were able to deliver then “the Boys” should keep themselves away. Unfortunately, the political elite and civilian governance institutions are corrupt & rotten to the core and have become dysfunctional and irrelevant in the current state of circumstances. They have absolved themselves of their basic responsibilities starting from law and order to providing food, water and education and delegated it to the Boys. In these circumstances is there better alternative we have. I would appreciate if you can guide us on that. Undoubtedly, there seems to be an overwhelming consensus between citizens, local criminals, and terrorists on the dysfunctional judicial system, police and prosecution. The nation would be glad to know if there is a better alternative, but the military courts seem to be the only feasible option in these circumstances. The nation does not care who does it as long as the monster is dealt with iron hands. What is disturbing is the reluctance of the media to seriously identify, question, and analyze the shortcomings of our judicial system.
I suppose replacement are made for failures. Courts might not be failures but, speedy disposals and justice is requirement of the time. It is also a religious right. Our leaders found answers in Military Courts, not in any new commission or specially designated courts. May it be fortunate or unfortunate. Critique is always good, provided is positive. Need of today is strengthening of state and her organs. Conclusion in fine but writer, in my view has adopted a wrong way to it. Boys are Brave and sincere so are relied upon. Is there any moral or physical replacement of Boys today in Pakistan? We are talking here of betterment in right today's scenario. Please accept it....
@norozyousafzai: You want to become another IK. Accusing other without any proof.
The Judiciary seems to be full to the brim with sectarian fanatics and those off them who are unbiased are afraid of their peers. Look at how they're afraid to convict Malik Ishaq or how the lawyers danced with joy at Salman Taseer's killing. Under Iftikhar Chaudhry more terrorists were let out on bail than any other time in our country even though thousands of Pakistanis were being killed. Either the judiciary is compromised, or they are cowards, either way they are unable to deal with the problem. I am a democrat but I have nothing but hatred for this judiciary because they have made themselves nothing but a revolving door for terrorists. The judiciary needs to be purged and punished for their failures. If a civilian cant do a job that needs doing, then someone who CAN do the job is needed. I personally think this country needs a third force, neither army or civilian, that should step in to deal with special circumstances. Something like the Iranian Revolutionary Guards.
In an ideal word, author is right in stating that "Ideally, it should not be about civil versus military (perhaps it isn’t, since it is pretty much a walkover) and should be about Pakistan versus religious militants."
But Pakistani society is too divided along various lines even to contemplate that scenario. That divide cannot be bridged because of 3 reasons - a)Inflexibility inbuilt into religion and almost all being guided by religion b) Attitudes issue- where mostly everybody is intolerant of another's view point and is consumed by selfishness instead of national interest. and c)Very limited education, distorted textbooks, absent teachers and predominantly Madari education where Pakistan has more religious scholars and only a fraction of professionals in important trades.
In the current circumstances, the civilian leadership is completely incapable having secretly joined hands with the very Taliban. Despite the fact that army has been lacking in action, the fact remains that it is the only force capable of doing something and capable of taking decisions.
With the establishment of military courts, the move is clearly in the direction of fascism or dictatorship and sometimes that may be better than the civilian non functional democracy irrespective of the factors that caused it to become non-functional.
It is good thing that this change to military courts is limited to 2 years, hence that will keep Army on its toes. With respect to foreign policy, it may turn out to be good as well as bad. Good in the sense that there will be consistency, decision making and clear authority path. Bad in the sense that military foreign policy tends to veer more towards aggressive tactics than peaceful, which will only delay the peace.
The author fails miserably to defend his fellow professionals who have done NOTHING good for Pakistan since 1947.
@Author, more competent and less corrupt democracy is the answer.
Why have the civilian and military chiefs of intelligence not publicly rendered explanations for their failure at Peshawar#? Why are our Interior Minister and DG ISI not expected to resign? Why has counter intelligence and IG Police not been made autonomous, free of political constraints? How can making new courts that start from assumption of guilt and do not apply law universally or equally to all citizens be considered a step forward? Why is hate speech and intimidation by violent cults still being turned a blind eye to? Just a few of the questions a reasonable citizen of this Republic could pose.
The Army rules under the cover of civilian government and Constitution. The civilian leadership has been given a limited role to help the Army.
The democratic state basically absconded instead of fighting the scourge. With a person like Irfan Siddiqui, who wrote Usama Bin Laden's eulogy upon his death and wrote antistate articles after Lal Masjid operation, as his closest national security advisors, what do you expect?
Agree with the writer. The current rulers are devoid of moral authority and courage because of their corruption and incompetence. Judges are terrorised because of failures of armed forces and police. Military courts will not meet the ends of justice as enshrined in the constitution. Answer is more professional military action, plugging supply routes of financing and weapons and improvising measures for security of judges and witnesses. A holistic approach.
@Mushtaq Ahmad: Second you. Very well said.
There is endless time till eternity to debate what could be better democracy or military rule but on the other hand state is going out of hands in chaos. Instead creating confusion about such useless debate we need to be united our all the institution to get some good result towards peace and progress out of this current anarchy we're currently facing in every state to private institution other then military.
More democracy, no, but it is going the other way and it is unstoppable. Civil-military partnered Apex Committees at the provincial level are taking up law enforcement and would undertake the judicial function once given Constitutional cover through legislation. So as a first step, we have what we might call Civil-Military Martial Law, a new experiment in politics and a fresh contribution to the study of Political Science. Once the Army is able to keep the nation under control through this arrangement, it could continue to use the government to follow its policies without imposing actual Martial Law and thus avoid being challenged in the Supreme Court. (There will be no need of Constitutional infringement/suspension/abrogation.) Sounds like a brilliant strategy.
@Hobi Haripur wala: I'm sure, being racist is a virtue (alhamdullillah) in 'land of the pure' Pakistan .. Dear Mod, If you can allow that hate post, I'm hoping you will put mine through too unedited. Please do..
@Riaz Toor: See if you can take English remedial classes. It will help with your current English. Specially when writing comments.
Any body who has a BA degree is educated to hate the Army of their Motherland . I some how find it difficult to differentiate between lier and lawyer . Any one who has to get little bit of attention is to do the little bit of hate speech against the Army. This helps him or her to launch an NGO and enjoy its all kind of charms. Sad to read that he does not know who have failed .
Military courts are antithesis to judicial independence. Courtmartial is primarily administrative action and has its sanctity in pragmatism though there is always complaint of bias and prejudice. Military court will function akin to court martial. One should be only tried in civil court. The fault does not lie in system of civil court but in investigating agency or may be political system which is reluctant to act against criminals.
The author does have a bias, but regardless, he is mostly right. The civilian leadership and courts are not up to the task of taking on the monumental crisis that they face in the current do-or-die situation, but whatever solution the establishment comes up with will be short-lived at best if they do not come out clean about their past follies and make a sincere, public resolution to depart from those policies (this includes the now-redundant idea of 'taking back Kashmir', 'strategic depth' and any remnants of General Zia's legacy in any national institution).
Despite this concession to the military,what prevents the civilian machinery and judiciary from prosecuting its terrorism cases, and reforming the civilian law and order system?
Have a heart:You are honest about military boys, you are honest about politicians and ask yourself; are you honest about our judges as well. Actually you want that our judges posh colony in the foot hill of margalla must undergo a Peshawar like carnage so that they start working like military courts...have a heart!........what is your narrative?
A lawyer defending his industry...........and failing to do so.
I subscribe writer's views. The Millitary Courts are an affornt to core values of democracy. It is lesson of history that only those solutions are formidable in long run which stand test of justice, fairness and basic human rights.
Terrorism could not be defeated by keeping constitution in view, and just law which is feeble and being sold and sleep with wadhras, terrorism is extra constitution, so it could only be encountered by extra constitutional measures
What now? See you after two years?
Justice should be equal for all.... Why to exclude some people..... Selective justice is not justice and is always doubtful.....!!! Anybodyagree....??
Still better to have A state than no state. The matter is existential, so should be the response.
I agree with @siraj here.Had democracy been the answer for terrorism, US and Europe would have pooled Taliban votes before attacking them.
Nothing to say but only, our civil/democratic govt is failed to protect a single citizen.
Well articulated stance. I agree that the answer should be more democracy than less but you said it yourself we live in a time and place far, far away from the ideal. Our civilian judges feel threatened by these mobsters and hence not able perform their duties, in a timely or just manner. Lack of law and order feeds this insecurity. Army has been complicit, and did not get rid of the leadership of these extremist groups in the past, on and on we go. Keep writing, as we need a well thought out and comprehensive approach if we are ever going to beat this.
Is it imrans plan D or nawaz plan D? That is the questions ?
These are all short term efforts to show that something is being done,that is all. No one has ever been held account for security or intelligence failures that have led to 50k dead. What a sad state of a country we are where 50k people have to die over 13 years and only then does some sense of urgency come forward. Yesterday Ch Nisar said that if people could prove their innocence they could walk free from these courts. They are not even pretending...... The prosecutor has to prove guilt, the burden of proof is never on the accused. Anyone brought before these courts will be deemed guilty as no criticism can be tolerated because that would demotivated japan's and the grace of the General. Perhaps Hamid Gul and all the Generals who were sipping tea with these militan leaders should be brought before these courts.
Some people can go this far in their hatred for the armed forces of Pakistan! The writer is extremely anti-army biased.
@siraj: Then why don't you show the urgency in educational reforms, judicial reforms, religious schools reforms etc. Above all show urgency in making the country secular. That will end many of your problems.
When the US put up Gitmo - for "jet black" terrorists, the entire Islamic world, specially the Pakistanis were up in arms demanding a democratic due process. But now the same establishment and their masses are supporting military courts! Nothing like denying democracy and blaming others.
@siraj: The writer is a well known lawyer. He did not misunderstand anything. He knows law. He knows the ramifications. It is YOUR judgement that need to be revisited.
The war for making Pakistan safe has to be waged on all fronts. Take for instance, the income tax collection which needs to be brought up by at least 90 percent, or for instance the rampant corruption against which Mr. Altaf Hussain wants the army to open another front. One thing not duly understood or perhaps deliberately neglected is the most urgent need for taking immediate measures to check population growth. Without such most needed measures--there are many many more--the disparity would keep growing, with the natural consequence of unrest and rebelliousness among the masses. I have doubts that the present setup would ever open such fronts (or, with their tarnished personalities, have the moral authority to undertake some of them). So, how can we make Pakistan safe while there is no one on the horizon to undertake this task?
A very brave and excellent article. "Brave" considering that the "Boys" aren't going to be happy with the article. Remember, in Pakistan, the boys are always right even after losing half the nation or losing the kargil conflict or for the mess that General Zia has created.
The writer has missed the essence of these courts and altogether misunderstood it. Its not to blame anyone for its failures not even judiciary. but its of speedy disposal and whatever we do at present, the speedy disposal from the present judicail system is a far cry. and reforming it would take some years.
No, introspecting ourselves and coming out of denial is.
Say a prayer for the mother whose son died at APS.