‘Less Democracy’ is the answer?
The transition to military power is now complete. No one had the conviction to defend the spirit of the Constitution
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.
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.