Faulty Premises

Published: April 18, 2015
The writer is a Lahore-based lawyer. The views expressed by the author are his own 

The writer is a Lahore-based lawyer. The views expressed by the author are his own [email protected]

The creation of military courts was justified by only one loudly articulated reason; that the ordinary judicial system is broken. There was no argument made for the military courts and evidence about the failure of the civilian/ordinary justice system was interpreted as an argument for the unusual measure. Everybody became a constitutional ‘expert’ and it seemed the only obstacle in the way of Pakistan’s decisive victory against militancy was the judiciary. The judicial ‘status quo’ was declared to be the problem. Those of us whining about military courts and due process, etc. were declared closet Taliban sympathisers or given the ostensibly slightly nuanced rationale of the military courts being an ‘interruption’, ‘extraordinary times demand extraordinary measures’, basically that the courts are being set up for a period of two years and soon it will be back to business as usual.

The assumption is (or at least was) that at the end of the two years we will revert to the ordinary criminal justice system. It has been almost four months since the amendment allowing for military courts to function was passed with much cheerleading and chest-thumping and perhaps, it is time to take some stock and revisit assumptions. There was deliberate ambiguity surrounding the justifications, apart from ‘Crush enemies’, etc. If the argument of the real flaws and failing in the ordinary criminal justice system was sincere then the complete lack of movement, debate and reform on the issue baffles the mind.

What is the plan here? Is it that the military courts will execute ALL the militants in the country in the two-year time period and hence we will not have a law and order problem at all, and a ‘flawed and weak’ criminal justice system would be sufficient for our then diminished needs? The State cannot really view this conflict in a specified time frame, let alone a ridiculously short two-year one. Certainly, the cunning plan is not to return to the ‘failing’ judicial system after two years since that is an absurd position. Finally, is the lack of conversation on judicial system reform an admission that the millions of pending cases and affected people are not nearly significant enough since they are not parties to the ‘conflict’ since they are being left at the mercy of the system, which according to both the Parliament and the Patriots is in abysmal condition and cannot dispense justice?

The problem with this discussion is that the premise is faulty. The criminal justice system in Pakistan suffers from serious systemic flaws and is in urgent need of reform, yet this is not what the military courts are about. The military courts are about the military maintaining complete control over all aspects of the war against militants; the Apex committees have taken care of the annoying civilian state and the military courts were meant to do away with irritant of the courts and procedures. The only justification for military courts is the ‘war’. The problem with this justification is that it does not come with an expiry date. The military courts will become the ‘Status quo’ since there is no will to rehabilitate and reform the existing judicial system.

Mian Nawaz Sharif might oscillate between shrugging his shoulders in resignation and feeling somewhat clever at blaming the judiciary for past failures and abdicating all responsibilities for potential present and future failures to the army. All of this would have been amusing as a real-life caricature of “Yes, Prime Minister” and the hapless Jim Hacker. Except here there are real lives involved, hundreds of thousands of them and the most fundamental of principles: free trial, due process and civilian supremacy. It was a bleak day when Parliament passed the 21st Amendment, yet Mian Sahib can try and mitigate damage and initiate a conversation and push for reforms in the criminal justice system. Alas, Mian Sahib will not do it, unless judicial reform can be tied in with a six-lane motorway with Turkish buses and Chinese street lights. That is what the civilian state has been reduced to (it was not a huge enterprise to begin with).

Yet, even the best laid plans with a surrendered Prime Minister and Parliament can be waylaid (even if temporarily). The challenge to the fast-track, hashtag military justice-style executions had to come from Ms Asma Jahangir and in this case also, the Supreme Court. The Pakistani ‘patriots’ are having a field day attacking Ms Jahangir for ‘defending terrorists’ and other assorted nonsense. One does not feel worthy to speak for Asma Jahangir, she speaks for herself and does so compellingly and eloquently. In any case, her credentials both domestically and internationally do not require a certificate from these loudmouths. When Ms Jahangir for many years asked for action against militants by the Pakistani state in a rights-respecting manner, the same cadre cried about these being ‘our estranged brothers’ and that people like Ms Jahangir wanted ‘Pakistanis to fight Pakistanis’, etc. The ‘bleeding green patriots’ have the benefit of not being shackled by any principles; a luxury that Ms Asma Jahangir and Mr I A Rehman don’t have. Mian Sahib may (or certainly should) remember October 1999 when it seemed that all of Pakistan was falling over each other to welcome the Commando and it was only Ms Jahangir and Rehman sb, who despite their vocal criticism of Mian Sahib’s bid to become Amir-ul-Momineen, recognised and called an unconstitutional coup as what it was and opposed the Commando throughout his reign. Yet, when it seemed that General Musharraf might be denied a fair trial, it was Ms Jahangir who spoke out for his right.

One does not expect the Commando or the hyper-nationalists to understand the unshakeable adherence to principles. Yet, one expected marginally better of Mian Sahib. He has been a victim; a victim of his paranoia and a victim of allowing the civilian state to evaporate. Mian Sahib seems determined not to learn. The serious national conversation on ‘military style’ justice and the reforming and strengthening the judicial and criminal justice system has to be initiated in Parliament, and initiated now. For the time being, Asma Jahangir fights for the civilian State and fundamental rights, and does so more forcefully than the entire Mian Sahib government put together.

Published in The Express Tribune, April 19th, 2015.

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Reader Comments (8)

  • Nadir
    Apr 19, 2015 - 4:38AM

    The army saw an opportunity and grabbed it. Post Pwr no one talked about the incompetence and security failures that allowed terrorists to raid a school. Instead everything became about hangings and handing power to the military to run courts. Now the state wants to regulate the internet because apparently tweets hurt the sentiments and grace of our politicians and generals. Recommend

  • Pmahmud
    Apr 19, 2015 - 7:07AM

    Judicial system is run by judges and lawyers. Do they see the problem.Not all changes require legislation. They should take action and also ask for legislation after that.Recommend

  • Imran Ahmed
    Apr 19, 2015 - 9:08AM

    Asma Jahangir has consistently always shown her country the principled path. It is high time people stopped slandering and started paying attention to her words.Recommend

  • Rex Minor
    Apr 19, 2015 - 8:23PM

    Yet, one expected marginally better of Mian Sahib. He has been a victim; a victim of his paranoia and a victim of allowing the civilian state to evaporate. Mian Sahib seems determined not to learn.

    The author need not use his intellect or talent in imagination but simply tell the so called victim how else he could do to keep the sixth largest army in the world off his back to keep his post until the remainng period? He asked the new COAS before appointing him and got in writting the tasks what these bods can perform. Remember, a soldier is a trained killer like a Tiger and one can not put him on the leash.

    Rex MinorRecommend

  • Hugh Slaman
    Apr 19, 2015 - 11:37PM

    @Nadir: You said “no one talked about the incompetence and security failures that allowed terrorists to raid a school”
    This is wrong: the military was accused of security failures here, though the school is in a civilian area. It was a worthless accusation, since no matter how much security people impose on schools on Pakistan, terrorists with enough manpower and weapons and training areas will penetrate somewhere or the other.
    The real problem revealed by Peshawar was that terrorists have been given a fairly free hand and feel emboldened to commit their crimes as a result. We should blame our civilian judicial system for dismally failing to deter terrorists by constantly putting roadblocks in the way of their punishment, and the judges for being too cowardly to give proper sentences to terrorists. Just now, Sufi Muhammad, Mulla Fazlullah’s father-in-law has been completely acquitted of all crimes; that is the kin of silliness that leads to the demand for military courts. And of course our anti-military judges will do all they can to block the military courts as well.Recommend

  • anonymus
    Apr 20, 2015 - 4:44AM

    .Saroop, agree with you
    I just finished watching a documentary “Silent waters”. This was about Zia indoctrination and partition. Brain washing has frozen the minds so much that no one is willing to approach things rationally. What I see is the use of military courts ruthlessly in other parts of Pakistan and is quite possible that one day Mian Sahib may be victim himself of these courts.Recommend

  • Apr 20, 2015 - 6:20AM

    @Rex Minor
    Tiger is a ..TRAINED..killer? How so? Who is training these tigers ?
    In the the wilds of hindustan, Siberia, Malaysia, Indonesia, Burma ?
    When you are from FATA……you are allowed to make these observations.Recommend

  • Rex Minor
    Apr 21, 2015 - 4:48AM

    @Peshawar wala:
    It is very easy to learn how a soldier is trained and what then his or her duties are. Join the army and this will give you the insight.

    Rex MinorRecommend

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