The case against military courts

A few days back when Prime Minister Nawaz Sharif began his midnight address to the nation at the conclusion of an All-Parties Conference, many of us had our hopes high. But the key proposal of the conference turned out to be thoroughly disappointing. The conference concluded that because the courts have let off too many terrorists, civilians suspected of terrorism will now be tried before military courts. Military courts are the new recipe of deliverance from this seemingly interminable cycle of violence.

There is no denying the numerous failings of our legal system. Among its many sins is its chronic inability to adequately punish criminals, including terrorists. But the reasons behind this failure are complex. The proposed solution – court martial of civilians accused of terrorism – does not take account of these reasons. It is also problematic both in terms of principles and pragmatics. First, consider the matter of principles. The idea of military men presiding over courts runs contrary to a fundamental principle of our constitution: the separation of powers between the executive and the judiciary. The army, for all its pomp and glory, is, in the eyes of the constitution, just an extension of the federal government’s Ministry of Defence.

Being a part of the executive branch of government, in principle, the army should not be exercising ultimate judicial authority, be it over civilians or soldiers. There is logic behind this principle: officers in the executive branch of government are trained to be efficient ‘doers’ rather than nuanced and impartial ‘thinkers’. On account of their training, they make excellent investigators and prosecutors but not confidence-inspiring judges. Because of the army’s strict chain of command and a culture of subordination to seniors, this problem is most pronounced amongst army officers.

It is because of this constitutional principle that over the course of the last century, many countries across the globe, such as Britain (1951), United States (1950), Canada (1952). New Zealand (1953) and Australia (1955) have brought their military tribunals under the oversight of civilian appellate courts. In these countries, military tribunals try military personnel only. Yet, ultimate judicial authority over them now vests with civilian judges. It is unfortunate that instead of catching up with this global trend, Pakistan seems to have resolved to travel in the exact opposite direction.

Then there is the principle of the equal protection of law. How can some civilians be singled out for the rigors of court martial while others continue to enjoy the benefit of due process extended to them in the ordinary criminal courts? Isn’t this discriminatory? True, the military establishment has promised to try only ‘jet-black terrorists’. But, ahead of a full-scale trial, how are ‘jet-black terrorists’ to be told apart from others accused of criminal offences? Would this not amount to conviction before trial, a violation of yet another constitutional principle, the presumption of innocence?

These concerns about the constitutionality of military courts are not novel. In a large number of cases spread over decades, Pakistani courts have already noted the constitutionally suspect statues of military ‘courts’. In 1980 (NLR 1980 Civ. Quetta 873), at the high tide of martial law, the Balochistan High Court struck down Article 212-A of the constitution, added by General Zia to provide constitutional protection to military courts exercising jurisdiction over civilians. Nor have military courts entirely escaped the scrutiny of our constitutional courts, in their dealings with military personnel.

In 1985, the Federal Shariat Court declared the absence of an appellate process under the Army Act un-Islamic and thus unconstitutional. (PLD 1985 FSC 365 upheld by the Supreme Court in PLD 1989 SC 6) The Army Court of Appeals prescribed in s. 133-B of the Army Act was brought in as a result of that intervention. In 2009, the FSC issued another order directing the Army Court of Appeals to provide appellants with greater due process. (PLD 2009 FSC 36) Most recently, in 2013, the Supreme Court commuted a death sentence passed by the Army Court of Appeals. The court reasoned that even though it was not formally sitting in appeal over the Army Court of Appeals, it could still set aside the latter’s orders if they had been passed “without jurisdiction”.

The last time army courts were given jurisdiction over civilians in Mehram Ali v. The Federation (PLD 1998 SC 1445), the Supreme Court turned them down. This time around the legislation will come wearing the armour of a constitutional amendment. But, in Pakistani jurisprudence, thanks to the basic structure theory of the constitution, even a two-thirds majority provides no iron-clad guarantee. A few years ago, in the 18th Amendment case, our Supreme Court actually came quite close to striking down a constitutional amendment. This time around, the court just might go the extra mile.

Next, consider the pragmatics of the proposal.  The war against terrorists is essentially a battle of narratives. The Pakistani state has been losing this war so far because it has failed to publically confront the militants’ socio-religious narrative and present a compelling counter-narrative. The criminal trials of the terror suspects could have provided the state with an ideal arena for engaging in this battle of narratives. Put in the docket for their own defence, the terrorists would have been compelled to speak up and expose the ugly face of their ideology. By consigning them to opaque and brash military courts, we are losing that opportunity. Military courts might be good at extracting retribution; but can they offer no hope for promoting a vibrant public discussion about the socio-cultural narrative that feeds terrorism?

The APC’s proposal is symptomatic of the approach of our policy-making elite: whenever the ailing system reaches a crisis point, instead of comprehensively overhauling it, just bypass it. In the past, we have responded to colossal failures of our legal system by setting up separate courts for terrorism, banking, accountability of public officials, dealing with environmental degradation and so many other issues. Even in the field of commercial disputes, we now treat high-value claims separately, resorting directly to the speedier high courts.

But what has this ‘by-pass strategy’ done to restore the public’s fading confidence in our legal system? If anything, by creating unnecessary complexity and duplication of resources, it has made matters worse. The reality is that Pakistan can never win the fight against terrorism unless its policy-makers invest time and resource in reforming the ordinary courts – including the already existing anti-terror courts.

Finally, perhaps the biggest problem with the APC’s decision is that it caves in to the khaki narrative about Pakistan’s failures. In this narrative, the blame for all our polity’s problems falls on the shoulders of civilian institutions – especially the one civilian institution that has most successfully challenged military dominance in recent years, the judiciary. This misleading narrative needs to be taken head-on. For most of the last 66 years, both our security policy and our foreign policy have remained beyond civilian reach. It is the khakis who have called the shots. It is their unwise choices which plunged not just Pakistan but the entire region spanning from Kabul to Calcutta in an interminable cycle of violence. If an apology is needed, it is for their incessant meddling in the internal affairs of Afghanistan during the civil-war-termed-jihad of 1980s, their pursuit of ‘strategic depth’ in the 1990s and their duplicitous policy towards the Taliban insurgency in 2000s.

South Asia’s nearly two billion under-fed, under-educated, and under-dignified human beings deserve a more peaceful and prosperous future. But this future cannot be built by passing on yet more responsibility to those who have brought us where we are, those who make a living by fanning the fire of militant nationalism. It is in this larger historical context of civil-military relations that the APC’s decision to give the military yet more powers makes no sense.

The writer is a lawyer and researcher based in Islamabad. Email: umer.gilani@gmail.com