And it’s when this sad story begins.
Terror was not new to Pakistan in 1997, but Mian Nawaz Sharif’s understanding of it was. And when faced with a problem that belonged to the executive, Mr Sharif’s men did what they always do: attack the courts instead.
The Anti-Terror Act was passed, special Anti-Terror Courts (ATCs) declared, and due process kicked to the curb. In a world that was yet to see Vice-President Cheney, Mr Sharif’s reasoning was solid: when dealing with terror, is it not right to sacrifice our liberty for security? (A question the PM would ask himself two years later, charged under the same ridiculous law.)
But the Act raised other questions too, even as it convicted killers like Mehram Ali. The bomber appealed against his death sentence, crying the ATA — and, by extension, the special courts — were unconstitutional. While opting to keep the Act, Chief Justice Ajmal Mian quietly made the case against another kind of court.
The CJ allowed the Anti-Terror Courts to exist — provided their subordination — while forbidding military courts outright. So when the news hit, that said military courts were the only cure to our cancer, we pointed to Mehram Ali v Federation: such courts were plain unconstitutional.
And when the interior minister mentioned military trials in the US — because Bush-era failures are the golden standard when it comes to counter-terror — we had a precedent for that too: it was held in Hamdan v Rumsfeld that military commissions couldn’t prosecute terror suspects.
But by then, we knew we’d lost.
Because in Hamdan, Justice Breyer afforded the President a way out, “Congress has denied the President the legislative authority to create military commissions ... Nothing prevents the President from returning to Congress to seek the authority he believes necessary.”
Which is exactly what President Bush did, and what Prime Minister Sharif will do. The lawyers are outmuscled: Mr Sharif will take his case to parliament, and amend the Constitution as we know it. Justice Ajmal’s idea of ‘unconstitutional’ will take on a whole new meaning for Justice Mulk.
And unlike India, the Pakistani judiciary doesn’t (and shouldn’t) believe in a basic structure doctrine, i.e., that parts of the Constitution remain sacred and unalterable. In short, military courts should sail through just fine.
To acclaim in fact: our lawmakers are in happy agreement over ceding space to the army. Even liberal voices, the ones that rail against the N-word, now invoke that very same ‘necessity’. Which begs the question: are military courts all that bad, considering our cancer?
We’ve heard the laundry list: out goes the presumption of innocence, a high evidentiary burden, impartial judges, maybe even a right to appeal. But for Fazlullah and his child-murdering maniacs, do we care? And that’s where we miss the point: this isn’t about the civil liberties of terrorists. This isn’t about the lawfulness of military courts, or our Constitution’s basic structure doctrine (or lack thereof).
This is, first and foremost, about utility. Military courts may not give us the solutions we want or need.
We’ve heard the definition of insanity, to the point of our own: doing the same thing, and expecting different results. When faced with vicious sectarianism in 1997, Mr Sharif threw the judges under a bus, and signed off on the ATA. The Act brought in bad laws and a new set of special courts. The problem worsened.
When faced with international terror in 2013, Mr Sharif threw the judges under a bus, and signed off on the Protection of Pakistan Act. The Act brought in worse laws, and yet another set of special courts. The problem worsened.
Which is why, when faced with the butchery of children in 2014, Mr Sharif just held course: he will sign off on the 21st Amendment. This will sideline the judges, bring in yet more laws, and a third set of special courts. And the problem will worsen — as long as our own justice system is thought a hindrance to justice.
Consider the best-case scenario: military courts are speedy, and executions soar. After two years of such trials, Mr Sharif is strong enough to enforce the sunset clause, and rolls them back. But come 2017, and we’re back to square one (barring a hanging bonanza): our civilian justice system will remain as unready and unsecured as it is today.
Which is why, after the single-worst crisis in our history, injecting steroids into our execution rate is just not enough.
As Mr Feisal Naqvi once quoted, “Widening roads to solve traffic congestion is like loosening your belt to cure obesity.” Welcome to capacity-building, Raiwind-style. Like building Danish schools for education, or running Metro Buses for public transport, or sending saris to Modi’s mother for India-Pakistan peace, military courts trying terrorists faster is a drop in the ocean given the gravity of the challenge at hand.
And as far as the democratic argument goes, a constitutional amendment may make them legal — it can’t make them lawful. If only mangling the Constitution could redeem this government.
That’s why we require curing our existing legal apparatus, not destroying it. Between the ATA and the PPA, we have a mess of laws overriding each other. Our judges are afforded no security, our witnesses are afforded no protection, our prosecutors are afforded no training, and our police are afforded no initiative. Our solution is to bring the military in?
And while we execute terrorists after the fact — after the court bombings and GHQ sieges — it’s time we focused on the preventive as much as the punitive. In the maddrassas that make our children hateful, in the funds that flow from the Gulf, in the Punjab government’s ties to sectarian thugs.
Thus far, Jibran Nasir and Islamabad’s marchers have shown more courage than all our parliamentarians put together. But there’s just no more time left: what we do in 2015 sets the tone for a generation.
Military courts do not make for the kind of start that the nation needs.
Published in The Express Tribune, January 6th, 2015.
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COMMENTS (17)
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Please allow response to two people who have written to me.
@Bewildered:
I did not express any sympathies with anyone. Simply pointed out that the 3 major operations by your military which had extracted a huge cost of Pakistanis in terms of human suffering (IDPs) and destruction of civilian infrastructure could not be described as being effective if the country still felt it was in such a state of emergency that it required military courts.
BSFs and Rangers are exchanging fire over your eastern border and have little to do with this OpEd.
@Ranjha: If I have a green card as you claim in one sentence, that means I am an Indian citizen. yet in another sentence you claim I am an American citizen. It is you who are confused.
I was born and raised in India and am concerned about India for that reason. I currently live in US. I have not revealed my citizenship and do not see any reason to.
@Ranjha
I do not mean to be rude but do people have to know our origin or nationality? I would never comment if I was required to give my nationality. GP65 has the right to her privacy as well..
Rex Minor
What ails are judicial system?.The failure does not lie in inadequacy of relevant laws,rules and regulations. The fault lies in the people who are making it function ie in the police functioning,investigation,prosecution,judges and lawyers.Majority of all in the chain are bent upon on getting a favourable judgement by hook or by crook.They use all methods ranging from official pressure to use of money.How can you correct a system which is thoroughly corrupted by majority of the people who implement or use to address a very extra ordinary threat of terrorism which is primarily also on the increase because of preperators being going scott free?.The use of military courts seems to be the only answer.As far as correctness to the existing judicial system is concerned who is stopping the government,judges,lawyers,political leaders and Parliament etc to take remedial measures immediately to correct flaws in the existing judicial system.Look at the bankruptcy of the system that the government even cannot execute death sentence as per the existing law to the awarded criminals.You cannot address any law and order situation in the world with such an attitude.Non implementation of laws is a recipe for sure disaster.
@Rex Minor:
"what does BSF mean?. Besides has it ever occurred to you why Pakistan army choose to surrender against the Indian army"
I cannot dare educating a genius like yourself. Please seek some professional help. My apologies.
@Rex Minor:
I have no objections but she must not swing both ways: she should define herself as indian or American, not in-between! And if she is American, she should comment on the policies of her government, which she never does as it may have an impact on her pay check and green card for her family!
@Ranjha: GP65 is not poking her nose, no one does but commenting on the article! If you have some objection to foreigners comments then you should be complaining to the ET modeerators.
Rex Minor
@Bewildered:
Your note to GP65- what does BSF mean?. Besides has it ever occurred to you why Pakistan army choose to surrender against the Indian army instead of a combat? Are you condident that your army is going to confront and combat this time if the tribesmen across the so called durand line roll over and try to over run the Punjab plains?
Rex Minor
@Gp65:
You are an American. You should be asking your government about the effectiveness of their trillion dollar military adventures around the world sine 9/11. You have no business poking your nose in the affairs of sub continent.
ET, please allow.
@Gp65:
"also those left behind who are being carpet bombed by their own military?"
Your sympathies for the left behind are very understandable. Aren't they? And yours BSF as well. Isn't that too obvious?
Well written Asad. If civilians are ineffective, one has seen no evidence that military has been more effective. After all, after 3 major military operations in last 5 years (Swat, SWA, NWA) and a combined total of 3 million IDPs, two separate COAS had claimed that back of terrorism had been destroyed (Kayani in April 2011 and Raheel Sharif in early Dec 2014) - yet Pakistan now is supposedly in a state of emergency. Is it not legitimate to question how effective these operations were which extracted such a high human cost not just from IDPs but also those left behind who are being carpet bombed by their own military?
Being a lawyer, Asad has very powerfully highlighted the issue of our rotting judicial system. However, the Taliban menace is not upon us due to a reeking judicial system, the demon was let loose due to our faulty security policies, conceived, written and implemented by the military. While there is a dire need of reforming the judicial system, we also need to revise our strategy vis-à-vis the “strategic depth” and playing mercenaries to the US and pursuing two opposing policies at the same time.
"injecting steroids into our execution rate is just not enough"
Use of steroids is bad -- everybody knows that -- because of severe side effects. Recently my mother was hospitalized and there she was injected heavy dozes of steroids for several days to save her life. So, steroids are not that bad after all especially when the life is at stake. By the way, what justice is being provided by the existing corrupt legal system to ordinary people -- let alone to terrorists whose single threat is enough to wet the pants of the judge -- except filling the pockets of the lawyers (or lairs) and the most luxurious life afforded to judges from the 17% tax a day laborer pays when he buys anything. I am a huge fan, but not this time.
@Ali S: General Sharif does not have the right credentials to lead the army in conbat operations, is what his former commander insinuated in a press conference. It goes without saying that he neither has the patience to be treated by the courts like the former COAS. The super con civilian Sharif has assured hm that he will get him the immunity from prosecution before his junior bods take over judicial duties as well? .
Rex Minor
Military courts are wrong and there is no discussion about it. That is why even their proponents are justifying those for only two years. But it is not just for the threats to their lives that judges, police, and prosecutors are letting terrorist go free. It is also because they are in bed with the terrorists. Nobody is going to give them security in a platter, they have to demand it and fight for it just like the rest of us are doing after Peshawar. Nobody is going to clean their house of corruption, they MUST do it themselves, after all they are an independent branch of government and they should act like one.
The tragedy is that a civilian government wants military courts to deal with a problem that had sympathetic unmderstanding by some political parties. Military justice will not solve the problem of terrorism; it will find sympathies by a large section of society. Those who know how military justice wortks should know better to agree. My question is where are those who suffered under miltray justice. Why are they not protesting against this move?
Excellently written. The judiciary, media and politicians get plenty of mud thrown their way (and it's well-deserved mud, I might add), while the 'boys' get away scot-free despite their follies which provide the nutrition for this cancer to grow.
It's great news that General Raheel Sharif wants to set things straight once and for all - but that also means his institution will have to publicly come clean and admit that its past policies are now counter-productive (to put it mildly) and it has resolved to depart from them entirely. You can't expect the concepts of 'strategic depth', 'taking back Kashmir' and any remnants of General Zia's legacy to go hand in hand with complete elimination of terrorists (and the ideology which sustains them) from Pakistani soil.
We require curing our existing legal apparatus, not destroying it
With Thurgood Marshalls like you around, it is just not possible. Better to destroy it and create something run by normal humans, not 20-year old "intellectuals"!