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Hybrid courts

Fata gets democracy; Pakistan will get military courts — same decision-makers, two very different decisions.

How the hell do you reconcile the two?

The easiest answer is what the boys want the boys eventually get — military courts. The slightly more complicated answer is that where the boys don’t have a hard preference, the civilians get to make some decisions — democracy for Fata.

The hardest answer is that democracy and the pillars on which it is built are a contested notion here — what the Constitution says and what the people, especially the decision-makers, believe are very different things.

You can see it in both tracks, the road to democracy in Fata and the imminent return of military courts in the country. Pakistan has an ambivalent relationship with individual rights.

Look at what they’re going to do in Fata. The law and the Constitution will be extended to Fata, but in hybrid form, the Rewaj Act.

A silliness rooted in the oldest of excuses: the people aren’t ready for modernity; they need a legal system they can relate to.

Maybe. But so what?

Most of Fata is comparable to swathes of Balochistan. But you won’t find anyone arguing that Balochistan’s tribal character means it needs a tribal justice system.

The custodians of democracy in Pakistan don’t really subscribe to the core values of our constitutional democracy.

And all of Fata isn’t the same — the northern parts have pockets that are developmentally comparable to much of Pakistan.

Plus, the gateway districts of KP have transformed life in Fata, while the displacement of much of Fata’s population in recent years has put it in touch with the regular systems the rest of the country has.

Yet, Fata will get a hybrid legal system because the state can’t imagine it having a normal one.

Flip over to this military courts business.

The problem isn’t a bunch of people getting unfair trials. If that were the reason for rejection, you’d have to oppose virtually every court in the country.

The jails are full of innocent people is not a punchline in this land of ours.

It also isn’t really about where you come down on the trade-off between security and freedom. All countries make those decisions and most get them wrong.

And military courts clearly serve a purpose, a double one. They allow the military to dispose of the worst of the militants in their custody in what the military can regard as an honourable manner.

And they send a signal to the public that the state is taking seriously its responsibility to fight militancy. Extraordinary measure in extraordinary times by an extraordinary machine fighting an extraordinary war.

If that were the extent of it, it would be fine. So much else that is messed up here, what’s another contortion or two?

But military courts deepens — and institutionalises — the ambivalence that the state has towards your rights.

Knock away all the fancy stuff like due process and right to a fair trial and try and peer at what informs the decision to institute military courts.

Arm-twisting by the boys and cheerleading by some civilians aside, the decision is rooted in a lack of faith and belief — in the way that the state is formally structured, in the rights enshrined in the Constitution and in democracy itself.

In subtle but meaningful ways, the custodians of democracy in Pakistan, the elected representatives of the people, don’t really subscribe to the core values of our constitutional democracy.

And none of that silliness about being corruption-free and the will of the people.

They don’t inviolably believe in fundamental rights that are inalienable. Many don’t even understand it.

Try this for a minute. In the Constitution, the articles that are most famous are political — the once-upon-a-time 58(2)b and probably the disqualification stuff, Articles 62/63.

Of the principles of the state, the most famous is religious — the Objectives Resolution and its nod to theocracy.

Now, try thinking of a single fundamental right with similar acclaim. It’s right there in the Constitution, a whole section dedicated to it up front.

It’s even helpfully labelled Chapter 1: Fundamental Rights. If you can guess a few, you probably won’t be able to match article with right.

There’s 21 of them, which itself would be news to most. Many of them archaic, but not one of them known by heart and repeated at will by anyone anywhere, citizen, elected representative or general.

It’s not an error. It’s coded into this place.

It strives to be a democracy, but is still working out what democracy means.

By itself, nothing unusual there. An admirable quest and a vaunted struggle across much of the world.

The problem is that while we dither, other forces are locking us onto a path that is anti-democratic.

Fata can get roads, dams and mobile phones — but it can’t get a regular local justice system. It needs Rewaj.

Pakistan will win its war against militancy — but winning means altering the very democratic foundations of the state. It needs military courts.

Resistance is hard because it has to be explained. And rights have to be explained because there’s no real constituency for it.

It’s tempting to break these things down into civ-mil binaries: one side good, other side bad.

It’s tempting to dismiss all politicians as self-interested scum.

Where it gets alarming, though, is that neither side, civilian or military, is fundamentally on your side, the average citizen. They don’t fundamentally believe in your rights.

Hail the reforms. Prepare to welcome back military courts.

The writer is a member of staff.


Twitter: @cyalm

Cyril Almeida, "Hybrid courts," Dawn. 2017-03-05.
Keywords: Political science , Political issues , Political policy , Democracy , Military courts , Ambivalent relationship , Rewaj Act , Legal system , Tribal justice system , Constitutional democracy , Fata’s population , Extraordinary war , Corruption , Fundamental rights , Anti-democratic , Local justice system , Democratic foundations , Real constituency , Civ-mil binaries , Politicians