“A man is only as good as his word.” My father told me this in all seriousness one day when I was trying to back out of a commitment I had made to a neighbor. It was a bit of drudgery that I had agreed to help out with, and since then my classmate had managed to get tickets to something much more enjoyable. I tried explaining to my father that when I agreed to help, I didn’t know the tickets were going to appear. Circumstances had changed. Circumstances were extenuating. And it wasn’t really that important, anyway, I argued. My father stared at me in stony silence, then spoke: “If you cannot be trusted with something unimportant, how can anyone ever trust you with something that is?” I rode my bike to meet my friend and give him the bad news. He’d have to give my ticket to someone else. I fulfilled my promise, but I did so under silent protest. My friends were having fun and I was tired and dirty. Time works a funny kind of magic, though. If I had backed out of my commitment, I would look back on that day with shame. Actually, I hadn’t thought about this moment in a long time. It came back to me unexpectedly, though, when I read a report about, of all things, military courts.
16th December was supposed to be a turning point. The brutal massacre of hundreds of innocent children at APS Peshawar had finally awoken the nation and united our resolve to defeat the real enemy – the jihadi extremists that had killed tens of thousands of Pakistanis since the last ten years. It is almost six months since that black day, and where are we now? The truth is not encouraging.
The failure of judiciary to successfully try and convict terrorists resulted in the creation of military courts. This has gained widespread approval, but it faces serious questions both about the constitutionality and also the wisdom of handing more responsibility to the military at a time when it is busy carrying out operations to root out terrorist groups. However there is another issue which has not been widely discussed which is that military courts will eventually be faced with cases that could call into question the military’s credibility.
Civilian courts may have proven that they are not up to the task of convicting terrorists due to threats and intimidations. Military courts may be free of this burden, but they carry other burdens besides. Take the missing persons cases. Civilian courts have been almost completely blocked from moving forward with these cases due to the resistance of military and intelligence agencies. If these cases are taken up by military courts, can anyone expect the outcome to be unbiased? The problem is, even if the military court is completely objective, its decisions will always be under suspicion because the military has a vested interest in the outcome. Same can be true of cases against alleged terrorists like Zakiur Rehman Lakhvi who are members of groups that are widely believed to have or have had support from national agencies. Whether or not it is true is actually besides the point. What matters is that even if someone like Lakhvi is innocent, by acquitting him a military court will look like it is biased, and its credibility will be unnecessarily tarnished.
Supposedly the US has called for turning over suspects like Lakhvi to India, but this is obviously ridiculous. No Pakistani suspect could ever receive a fair trial in India. However, there is another option which is to refer the cases to the International Criminal Court. This is what Ukraine has done, turning over evidences against alleged terrorists to the ICC and allowing the independent judiciary to give a fair and unbiased judgment. By following suit, Pakistan would not only be able to successfully prosecute terrorists, but convictions – and acquittals – would be above reproach because there could be no claim of favoritism or bias by the international tribunal. Civilian courts would be able to return their attention to decided cases required by the common man, and Army would be able to devote its energy and resources to fighting terrorists.
Despite supporting the aims of the International Criminal Court, Pakistan is one of few remaining countries that has not signed the Rome Statute of the International Criminal Court and refuses to cooperate with the Court. It’s time to change that.
The introduction of military courts and the re-introduction of capital punishment in Pakistan has been greeted with no shortage of controversy. Members of civil society have noted that military courts are further impeding the growth of civilian institutions by letting taking over key responsibilities such as dispensation of justice, and some have questioned Army’s sincerity in its claims of “zero tolerance” for terrorists and change of direction from a policy that tolerated certain religious extremists that were not considered a direct threat to Pakistan military. In its defence, Army has noted that unlike civilian courts, military courts can take on even the most hardened terrorists without fear of threat and intimidation. Debate will continue, as it should in a democracy, but there is a test case that the military could use to reinforce its side: Mumtaz Qadri.
Mumtaz Qadri is the perfect test case for military courts. The confessed murderer does not present a direct threat to Army like TTP militants, and the target of his attack was not a military officer but a civilian government official. This is also a case that civilian courts have had extreme difficulty in bringing to conclusion due to threats from terrorists. Most importantly, though, by prosecuting the confessed killer, the military would send a strong message that violence and extremism are no longer to be tolerated. It is this type of action that will go far in answering questions about whether Army is capable of taking on every terrorist in Pakistan and confronting the extremist mindset that is at the root of our troubles.
Making decisions in emotion is never a good idea. Our reasoning is distracted and clouded with our feelings. Think of the boy who chooses to run off with a girl that he thinks he is in love with only to realise once the passion had cooled that they were not the ‘soul mates’ as he had thought. Or the husband who acts out a jealous rage only to learn that what his wife was hiding was not an affair but a secret gift she was planning for her beloved. A cooling off period is needed – one that allows a return to reason so that the facts can be investigated objectively and a decision made based in reality and not fear or anger or passion. How could the brutal killing of 141 innocent lives at the hands of terrorists be anything but an emotional event for the nation? And yet I fear that it is in this emotional state that decisions are being made which, under the cooler light of reason, will appear to be made in haste.
The decision to create military courts is no small matter. This is proven by the fact that it requires no less than amending the Constitution. The decision, then, should not be taken lightly. The justifications, however, do not really add up. First, there is the claim that civilian courts cannot try terrorists due to problems of security. Certainly there is some evidence for this. The Pakistan judge who convicted the terrorist assassin Mumtaz Qadri was forced to flee the country in fear for his life, as well as reports that anti-terrorism cases are often acquitted due to intimidation of witnesses, police, and the courts themselves. Therefore, the order of the day is for military courts.
But wait. If the problem is one of security, why doesn’t the military simply provide the necessary security to the existing civilian courts? Why must the military take over the actual role of judiciary instead of simply fulfilling its own role as guarantor of security? This would strengthen the civilian judiciary while also avoiding any suspicion of military overreach.
The other most commonly given justification is that conviction of hardened terrorists requires the use of evidence gained through sensitive intelligence operations. This too sounds convincing enough until one thinks about it for a minute. There is no question that sensitive intelligence operations and procedures must be kept secret, but does that require military courts? Couldn’t civilian anti-terrorism judges be cleared to hold in camera sessions with intelligence officers to review sensitive material? This would also strengthen the credibility of existing courts while demonstrating that the military was truly cooperating and not trying to expand its authority.
Whether or not the brutal attack in Peshawar has finally woken the nation from its slumber only time will tell, but effective means of countering the terrorist threat requires decisions made with calm reason. Military courts may be the fashionable idea of the moment, but under close review, the justifications don’t hold up. Actually, they could even be counter-productive if they are seen as an attempt by the military to expand its authority at the expense of democracy – a feeling that is already starting to emerge.