Military courts, and the definition of insanity

Published (and heavily edited) in The Express Tribune

18 years ago this January, a massive motorcycle bomb was detonated in Lahore’s Sessions Court, killing 23. The bomber, Mehram Ali, was apprehended on the scene, with a wig over his hair and a confession on his lips – the remote control had been thrown to the roof of a nearby bakhshikhana. The Mehram Ali bombing came to be one of several sectarian attacks to poison the ‘90s.

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 U.S. – 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. And that’s why military courts are a bad idea: they just don’t solve anything.

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 Indo-Pak peace, military courts trying terrorists faster is a drop in the ocean.

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 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 army 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 maddrassahs 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 make an awful start.

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