Dr. Umar Khan

khanmomar@hotmail.com

Dr. Khan belongs to a Lahore based Think Tank.

28-12-14

 

Military Courts and fight against terror

"Terrorism is how the poor wage war. War is how the rich wage terrorism."
- Peter Ustinov

Pakistan was shocked by the massacre of school children in Peshawar. This shock turned into rage within no time imparting a compulsive need to respond to this atrocity effectively. In no time, the moratorium on death penalty was removed resulting in the hangings of convicts within days, as well as numerous bombing raids carried out in Waziristan. The army chief went to Afghanistan asking for the terrorist commanders based there and the politicians sat together to devise an action plan. All this was fine but then we heard about the decision to establish military courts for the terror cases headed by serving military officers, kind of a judicial “nazria-e-zaroorat” or doctrine of necessity.  

Military courts have a sad history in Pakistan, having been established by all military governments of the past (except Musharraf), along with many political governments, including Bhutto’s and PML(N)’s. They have never resulted in anything good, creating lots of complications instead, complications which lasted for years and gave way to new problems. The lesson learnt by the history of military courts tell us that the doctrine of necessity or ignoring law for exigency has always caused more harm than benefit and must be avoided.

Pakistan has seen this kind of national consensus and mobilization before, consensus which got wasted by diversions. Hanging convicts hastily and bombing targets, which were earlier not considered important enough, might be needed but are superficial and temporary steps which cannot be a substitute for the solid far reaching actions needed badly. I fear that concrete steps against real ills causing this terrorism might get ignored because of these cathartic moves aimed more at cooling down, or rather, appeasing national rage than addressing actual issues.

Establishment of military courts is a “no confidence” move against judiciary and might be bordering on outright insult. Our judiciary, like all other institutions might be lacking but handing over its duties to another institution is not the answer. If there are weaknesses in our judiciary, these should be identified and corrected. We can criticize but must never insult or humiliate them. It is the institutions that make and strengthen a state and judiciary is one of the most important. Judges are trained to interpret the law and decide about the criminality whereas the army officers are not. Military courts headed by best officers might get convictions but can never dispense justice. One wrong conviction can put the nation back a long way, seriously damaging the credibility of criminal justice system and nation as a whole.

                                                    

We must never succumb to the temptation to overlook the due process of law for our conveniences. We must never forget that an accused is an accused until proven guilty and must not give in to feelings of rage and retribution even with terrorists. It is respect for law that differentiates the civilized from the barbarians; the terrorists from the patriots. Ignoring the due process of law takes away our moral superiority, something we cannot afford, and by establishing military courts, we run the risk of jeopardizing this morality.

Instead of establishing military courts we should further develop, strengthen and protect our judiciary. It is the state’s responsibility to give proper protection to the judges, prosecutors and witnesses, a responsibility it hasn’t been fulfilling. When it comes to determining convictions, training of the police in scientific methods of investigation is also an important step; again, one that is not being taken.

Once the immediate threats are addressed, we must tackle the real issues; issues that began as mild forms of militarism and extremism and spiraled into rampant militancy and ended as outright terrorism.

Militarism can be defined as “domination of the military man over the civilian, an undue preponderance of military demands, an emphasis on military considerations” or “exaltation of military virtues and ideals” or “the tendency to regard military efficiency as the supreme ideal of the state and to subordinate all other interests to those of the military” or better still, “strong influence of military on government: a high level of influence by military personnel and ideals in the government or policies of a country or state.”

By this definition, we have been developing unbelievable and unsustainable levels of militarism, gradually sliding down to our present pathetic situation.

For this let us explore its genesis.

An unrepresentative military government abrogated the constitution, got us into a foreign war and encouraged non-state armed groups. All this was done while military courts were functioning and debate was strictly forbidden. Yes I am referring to the dark decade of the Zia-ul-Haq era, the military dictator who punished freedom of speech, and got us entangled into the mess of the Afghan war. Ultimately our society developed in a strange militarist way where bombs and missiles were idolized and displayed in the public domain of cities. Public schools had tanks and cannon as decorations; something absolutely unheard of. Talk of arms and bombs became popular along with geopolitics and wars in the educated middle classes. Extremists groups were armed and trained and then released into different war theaters. The stage was being set for the catastrophe that we are now facing.  Anyone daring to disagree or mentioning the risks involved was slapped down and marginalized; labeled as “unpatriotic”.

This policy effectively ended the state’s monopoly over use of force, weakening it tremendously. Lavish supply of dollars and arms produced a crop of megalomaniacs harboring dreams of conquering other countries and treating them as strategic depth for Pakistan. Thousands of armed, trained extremists were treated as strategic assets to be used as a tool, imparting dignity to these undisciplined armed groups and thus, legitimizing their “jihad”. These armed groups that we created, have now turned their backs on us; and what we gladly accepted as jihad against foreign and Godless agents in the past, has now become a very real terrorist reality against us.

Now we have no option but to accept that our militaristic paradigm has failed miserably. It has caused us lot of harm without any dividends. This militaristic frame of mind has made our lovely Pakistan into a pariah state known for all the wrong reasons.

Hanging or killing extremist militants is not the answer, as they themselves are looking for death. Indiscriminate bombings is not the answer either, because each innocent life lost in collateral damage can create many more desperate fighters willing to lay down their lives. We must change the mindset and thinking pattern of our people and the terrorists by giving them a plausible narrative they can understand. Fatwas against terrorism by religious scholars, enlightened curricula of the madaris and our adherence to law can go a long way in winning this battle.

Punishments or negative reinforcements certainly have a role to play but they should only be dispensed after due process of law. A criminal should be punished not to fulfill the desire for vengeance or rage of a person or institution but only for deterrence and if the law says so and military courts can’t be very helpful here.

Discussions of good and bad Taaliban must stop and we must dismantle even compliant extremist organizations arranging for their rehabilitation, as well as parties broadcasting a similar extremist mindset. Unfortunately, despite the recent uproar against the terrorists, this point needs more attention.

Pakistan has to fight the root cause of this problem, which is, militarism of society. This fight will be helped by strengthening of political and civil institutions like the parliament, judiciary, executive and political parties. We must also encourage debate and reign in our propensity to be the frontline state making money in the process. Military courts can be detrimental in all these endeavors. I just cannot understand how and why did Nawaz Sharif and all other political parties agreed to them.

There is still time for action. The proposal of military courts must be rejected. These can only be established by a constitutional amendment and the parliament must discuss all aspects of this situation, including the existing and historical risks and benefits. Judiciary can always strike it down even if the parliament is coerced into agreeing, as it is against the very spirit of our constitution, as well as the principles of democracy. Parliament should also avoid making more laws as we are already over regulated. The more corrupt the state, the more numerous the laws. We don’t need more laws but the implementation of the laws already in place.

Our most important and valuable (newfound) asset, the civil society, must resist these trials against democracy and justice. We are a civilized nation and have the ability to develop civil institutions, including an independent and assertive judiciary. Let’s protect our judiciary and give it a chance to rise to the occasion in our fight against terrorism.

khanmomar@hotmail.com