Will military courts save us?

People criticising the military’s role in establishing military courts often forget the role of the other important institution – the government led by Mian Sahib. This is not to absolve the military of blame, but to highlight that, in this instance, the civvies share it.
Once the military courts have been established, it is the military that will determine their form and substance. But it is important to remember that Mian Sahib has always preferred quickly dispensed justice. He established military courts in his second tenure as well for the same reason.
There was no ‘war on terror’ as we know it now, but the arguments put forward for their establishment were not too different. Judges are afraid to try hardened criminals and terrorists; the state cannot assure the security of the judges and prosecuting lawyers: hence military courts. In 1999, the Supreme Court struck them down, terming them unconstitutional and without lawful authority. It is therefore not without reason (or history) that Mian Sahib so eagerly bought the military’s suggestion of a constitutional amendment to protect military courts this time around.
We need to reflect on two points while deciding if military courts are the answer to our problems. The first pertains to whether they can help us curb the violence of the Taliban in the long run. The second point concerns the military’s role as judge, jury and prosecution in the trials of various terrorists.
First, it is important to realise that we cannot deal with terrorism effectively without reducing violence in Pakistani society in general. The specific violence of the Taliban can only appear horrendous and exceptional if we reduce the level of violence in our society. This requires us to recognise that our society contains high levels of violence regardless of the Taliban.
Consider this. One of the biggest and most persistent perpetrators of violence is the state itself. Every day in Karachi and in various part of Balochistan 10-15 people are killed by the state in various ways. Some are killed in ‘encounters’ of dubious authenticity and others are found dumped near roadsides. It doesn’t matter whether they are involved in any anti-state activity or have committed any crime. Our standard operating procedure of dealing with people that we can’t put up with is to kill them – preferably outside the ambit of law.
If you think about it, an average of 10 extra-judicial murders every day comes up to more than three and half thousand dead bodies every year. Of course, many may argue that the actual number of people killed by the state in fake encounters in Karachi and through its kill-and-dump policies in Balochistan is much higher. This then begs the question: in what way is the Taliban’s violence different (in the very act of perpetuating that violence, at least) from the illegal violence of the state?
Are we merely condemning the Taliban on the basis of degrees here? If they stop killing people in mass numbers and maybe bring their daily average to 10-15 a day, will that violence become more acceptable to us because they would be just as bad as the state then?
Besides the state, the other type of violence that has always existed in our society is towards the minority communities, particularly Christians and Ahmadis. Shanti Nagar was burnt down in February 1997 long before we became part of the ‘war on terror’. The fact that the perpetrators have never been caught and punished is partially the reason why incidents like Sanga Hill in 2005 and Gojra in 2009 happened. What is important to realise here is that when we demand (and rightly so) that the violence of the Taliban be dealt with decisively, we usually forget all other forms and shapes in which violence continues to be perpetrated in our society.
A reduction in the violence of the Taliban can only happen if we also collectively desire to have violence reduced in all shapes and forms, and regardless of its perpetrators. So far we have taken a very narrow view of violence, which essentially involves the very physical act of killing another. Many scholars point at other different forms of violence that are just as threatening.
For example, Marxists, including me, would argue that persistence of class exploitation, lack of social security nets, and the resulting poverty are all forms of violence that are equally threatening. A case in point would be that almost 200,000 children die under the age of five because of a lack of clean drinking water, access to basic healthcare facilities, and due to diseases preventable through vaccination. This is just as horrendous an act of violence perpetuated by the structures of the state and society as is the death of 133 children on December 16.
When looked at this way it is clear that military courts are a bad response to Taliban violence. A true counterterror strategy would not merely look to punish the perpetrators of the murderous crimes but also to reduce violence in all shapes and forms.
The second point that requires reflection is the role of the military in the military courts. As mentioned earlier, military courts are being justified in the name of speed trials and dispensation of swift justice. The other common cited reason is the incompetence of our judiciary. We are not told whether that is because of fear of the terrorists or flaws in the legal process itself. This is important because judicial incompetence reflects the incompetence of the state.
Interestingly enough, the military is perceived to be safe from both these flaws. It doesn’t fear the terrorist because it can protect itself and its own people – which begs the question why an institution of the state can’t protect functionaries of other institutions in situations like these.
But most importantly, the judicial process of military courts is also safe from the normal judicial process. The trials will be held not under the Pakistan Penal Code but under the Army Act. Arguably, the biggest hurdle in sentencing terrorists in normal courts has not been the incompetence of the judges presiding over such cases, but that the prosecution is unable to conclusively prove anything against the alleged terrorists/criminals. The judiciary obviously cannot award punishments on popular notions of ‘everyone knows this person committed the crime’.
In what sense, then, is the prosecution of a case in the military courts different from the anti-terror courts or the high courts? What is the nature of the evidence that is acceptable in the military court and not in a normal court? In what way does the Protection of Pakistan Act not address such issues? Why is the evidence accepted by anti-terrorism courts not accepted by normal courts? If the nature of evidence presented is not dependent on the rules under which it is judged, then why can’t the military help the government prosecute terrorists in normal courts?
These are questions we need to think about. Because right now there is fear not among few that such courts may ultimately become a way to protect the interests of one institution as they are defined by those at the helm of that institution. This does not necessarily mean that terrorists will not be punished. But a lack of transparency in and people’s inaccessibility to such processes often serve to protect institutional and state involvement in creating the kind of beasts the state has now become eager to punish under the rubric of military trials.
The writer is assistant professor of Social Development and Policy at Habib University, Karachi.
Email: fahdali@gmail.com
Twitter: @alifdaru