Militarised justice

Prior to the first anniversary of the APS attack, at least four terrorists found guilty of the bestial crime have been hanged. So harrowing was the tragedy that even a year later it is impossible to read through the heart-wrenching stories published by Dawn as a memorial to the children claimed by the ghastly attack. Peshawar 2014 shook Pakistan’s soul. We questioned our humanity and wondered how we had managed to rear amongst us such monsters who target kids to feed their agendas of hate.
The images of Aylan Kurdi with all his innocence washing up on a Turkish beach shook the world’s conscience. There couldn’t have been a parent who saw the images and didn’t worry about the safety of his/her own kid or feel for the distraught father. No parent can imagine anything more painful than the loss of a child. In the cycle of life, parents are to depart before kids and the reversal of this sequence is excruciating. What can multiply the pain manifold is a child’s life being claimed not by nature but by human cruelty.
The APS attacks made us both angry and scared. Our anger sought retribution and our fear sought deterrence. The attack could not be erased from memory. While the scars wouldn’t go away, we thought the wounds might heal faster if we could exact revenge. And we could possibly deter a similar tragedy from repeating itself if we meted out punishment so swift and severe that it put the fear of God in the hearts of terror-mongers. We acted like humans do when guided by fear and anger.
In an impassioned state, the mind rarely bothers about cause-and-effect logic. To assuage our fear and anger we made broad decisions. One, suspending the death penalty was a bad idea and we must begin hanging people immediately to deter crime and terror. Two, our criminal justice system is too weak, flawed and ineffectual and unless we adopt a shortcut to send people to the gallows, terror will proliferate. And three, in a nation and state under attack by

terror, talking about affording terror suspects legal rights is tantamount to supporting terror.
What APS did in the immediate term was take away our ability to think about crime and justice in a sophisticated manner. It erased the grey from our analysis and made things black and white. We heard that there is no serious crime in Saudi Arabia because they behead people out there. So if we started executing people publicly over here, terror will disappear in a hurry. We heard that even developed states opted for military courts when the need arose and so there is nothing wrong with replacing inept civilian justice with effective military justice.
If our soldiers are fighting pitched battles and our pilots are dropping bombs out there in Fata why fuss about those who don’t get killed in combat but are caught alive? We thus concluded that war is no time to dwell on luxuries such as due process and rights of terrorists. In this new black and white world, we concluded that there is no real distinction between a terrorist and a terror suspect. If those fighting this war say that someone is a terrorist, should we really second-guess them or call terrorists innocent until proven guilty?
And further that this is no time to try and strike a balance between safety and the efficacy of our criminal justice system. For now we need results. News of terrorists being hanged is good for families of victims, for the morale of troops and for society’s spirit. The worst-case scenario is a handful being hanged without complete justification. So be it. Such suspects would most probably have been affiliates of terrorists. And in any event we must err on the side of state and society’s collective security even if we end up causing some wrongful deaths.
Our approach to criminal justice post-Peshawar is thus understandable, but not correct, morally, legally or logically. We have no empirical basis to argue that hanging people deters others from engaging in crime. The deterrence value of the state inflicting death on criminals is even more suspect in view of the nature of terror we face – which involves faith-motivated suicide attackers. The death penalty is controversial, not just due to the moral question of whether the state should ever end a human life, but because justice systems run by humans make mistakes.
The problem gets aggravated when we take away due process and fair-trial protections built into the criminal justice system to make it safe, and reverse the onus of proof by considering suspects guilty until proven innocent. The military’s court martial system isn’t designed to mete out justice to those who wrong society. Its paramount object is to maintain discipline within the army. A judge hearing a criminal matter is meant to be a neutral arbiter providing a level field to the state prosecuting the case and the suspect’s lawyer defending him.
The courts martial set up under the Army Act are hardly capable of dispensing justice to members of the armed forces, let alone suspects in a war that the army is waging against citizens-turned-terrorists. While military courts are not meant to try those who don’t belong to the military, the courts martial established under the Army Act are not even truly independent in the judicial sense due to changes introduced overtime by dictators to enable the army chief to exercise tight control over the adjudicatory process.
All decent justice systems bar repeat trials for the same offence, and so does Pakistan’s constitution. In case of a court martial under the Army Act, the sentence is required to be confirmed by the authority convening the court martial. But the convening authority can refuse to confirm the sentence and the court martial proceedings can otherwise be annulled and a retrial ordered to manufacture different results.
The Pakistan Army Act rules originally afforded a person sentenced the right to get a copy of the trial proceedings, as logic and fairness dictate. But through an amendment introduced in 1985 the army chief gave himself the authority to refuse provision of copy of proceedings if deemed “prejudicial to the safety or interests of the state”. This makes the right to appeal meaningless as the convict has no way of knowing what exactly has been held against him and why.
The GHQ has also ordered (through an administrative instruction) that once the chief or vice chief confirms a sentence, the court of appeals cannot change the verdict without first obtaining permission from the chief/vice chief. The Army Act Rules also provide that the high command can award censure to members of a court martial. Who then in his right mind would risk career progression in the zeal to do complete justice if that means producing results different from those expected?
Within this existing framework can courts martial or courts of appeal established under the Army Act be considered independent tribunals of justice? In our present scenario, we have been told that only the blackest of black cases will be sent to military courts. Which serving officer appointed as member of a court martial will, in exercise of his judicial powers, find in favour of those already declared blackest of black by his superiors on the operational side?
Motivated by fear and anger, we did what we did. One year later and almost halfway through the two-year period of military justice afforded by the 21st Amendment, let us rethink the nature of the problem we face, and the solutions that we need that are just and will work. We will need to go back and resurrect our moth-eaten criminal justice system. The sooner we start, the better.
Email: sattar@post.harvard.edu
The writer is a lawyer based in Islamabad.