Military courts: a mistake

On December 27, 2014, only 11 days after the APS attack in Peshawar, I wrote my weekly entry in this column under the title, ‘Military courts: a defence’. In the article, I laid out the case against the establishment of military courts, and the case for them.

On the strength of my conviction that urgent and immediate action must not be held up under the banner of procedural and institutional coherence, I endorsed the establishment of military courts. Here is how I framed my reluctant support for military courts:

“So while I support the military courts on the basis of an internalized doctrine of necessity, I think it would be criminal for us to not ask serious questions about military courts today, and every day until they are established, and twice a day, until they are eventually disbanded.”

I ended that endorsement of military courts with these two paragraphs:

“The big test of how useful this all will be for Pakistan is whether the convictions are indiscriminate across all terrorists, or whether they are restricted to terrorists that have fallen fowl of our broken, low-grade, low-IQ, strategic thinking. For now, we will have to trust General Raheel Sharif and the army high command. Because, let’s face it, what other choice do we have?

But the long-term reality is stark, ugly and begs reflection. We face the problems we have today because we allowed our soldiers to become social engineers. We allowed our social engineers to take over our mosques, and our television talk shows. Then we threw away the keys. It is no small irony that to get them back, we need our soldiers.”

Today, the legal provisions under which military courts were established have expired, and the government is engaged in a conversation about how to bring them back. At least one supporter of extending military courts made the case for their extension to me, for at least two years, and then followed it up by saying, “actually, three. Or come to think of it, at least four. Yes four”.

I ask myself, why stop at four? Why not 10, or 20, or 40 years of military courts? I don’t ask this sarcastically. It is a serious question.

You see, the fundamental basis for military courts in 2014, for me was two-pronged. First, military officers are better equipped – individually and institutionally – to deal with the threat posed by “jet-black” terrorists who may seek to intimidate or threaten ordinary judges. Second, the legal and administrative changes needed to fix the legal system, the courts, the prosecution services, the lawyers’ community, the prisons and the forensics teams require time, and by December 27, 2014, the stench of the mass murder of children was so putrid that I had no patience for even my own tendency of privileging coherent, procedural rule of law to take precedence over swift and unrelenting justice. “Kill ‘em all,” we chanted in the aftermath of APS.

Yet here we are, over two years later. We have not killed them all. We sure have tried. But enough have been left behind to have conceived, planned, plotted, financed, and executed an attack at Charing Cross, another at Charsadda’s kutchehri (again), and one at Hazrat Lal Shahbaz Qalandar’s mausoleum in Sehwan Sharif. These are just the attacks of the last two weeks. One wonders how and why it is so hard to forget APS, but so easy to forget the 52 Pakistanis martyred at the Shah Noorani shrine in November 2016, or the 70 Pakistanis massacred at Gulshan-e-Iqbal Park on Easter Sunday in March 2016.

The military courts were part of a menu of bitter pills we needed to swallow in order to rid this society of the sickness of wanton death and destruction that seeks to terrorise Pakistanis. Over two years later, the government seems to want to extend the military courts. Experience from the past two years suggests that military courts may have helped create an environment in which the total number of terrorist attacks has reduced substantially. But they have not contributed, in any way, to the elimination of the threat of terrorism.

In my own original support for military courts, I had set the prosecution and conviction of all terrorists – as opposed to only those terrorists that were in violation of our ineffective and failed strategic thinking – as the litmus test for whether the military courts experiment was working or had worked. Uncomfortable and worrying as it may be, we must face the stark reality that at least, by this token, military courts have failed the test.

Malik Ishaq, the leader of the banned Lashkar-e-Jhangvi was not convicted by a military court. He and 12 of his associates were killed in an extra-judicial encounter with the police.

The TTP commander – and later, Daesh recruiter and trainer – Saeed Khan was not convicted by a military court. He was killed in a drone strike.

In July 2016, the ISPR director general announced that the Pakistan Army had exposed 837 insurgent hideouts, recovered 253 tonnes of explosives, killed 2,018 “hardcore” or “jet-black” terrorists, and conducted over 9,000 intelligence-based operations. None of this required military courts.

Military courts sentenced 161 (or 144) terrorists to death. Of these, only 12 have been executed thus far. At least 16 families of convicted terrorists approached the Supreme Court to get in the way of an unfettered path for military courts. The Supreme Court did what it may be expected to. It got out of the way.

Human rights advocates argue against these courts, as they should. The case for these courts doesn’t stand up to any kind of scrutiny from a rule of law, transparency or due process perspective. I knew all this on December 27, 2014 and yet I still expressed public endorsement of these courts. I owe my readers an apology for this. It was bad judgement. I am sorry.

Why am I sorry? I can easily conceive of morally defensible arguments to run roughshod over due process to achieve an urgent outcome. I have a strong enough constitution to be able to grapple with moral ambiguity or even contradiction. Public policy is complicated business, and it is most complicated in a place like Pakistan, at a time like the post-APS scenario. So my mea culpa is not inspired by the procedural, rights-based, moral or ethical arguments against military courts.

I made a mistake in supporting military courts in 2014 because the existence of military courts creates the space and time for the executive, the legislative and the judicial branches to delay the necessary legal and administrative reforms our country desperately needs.

I made a mistake in supporting military courts in 2014 because the existence of military courts empowers the military in a civilian domain, and we can’t keep whining about the civ-mil disequilibrium on our Twitter timeline, while handing the military more powers on our Facebook pages. That’s called mixed signals. It is bad form.

I made a mistake in supporting military courts in 2014 because the existence of military courts is an easy and convenient way for our civilian system – administrative and legal – to escape scrutiny and responsibility for its epic failure to provide timely justice to society in general and to the victims of terror in particular.

One should learn from their mistakes. The proposal to extend or re-initiate military courts in Pakistan as an instrument of countering terrorism, or countering violent extremism, or improving the quantum of justice is a bad idea. It does none of the things it is supposed to do. It only delays an inevitable conversation about reform. It is an escape hatch through which this country’s elected and unelected, military and civilian, in-power and in-opposition leaderships seek to escape serious and difficult processes of reform.

We must not make the same mistakes that we have made before. I apologise for supporting military courts in 2014, and I oppose their establishment in 2017. I hope both civilian and military leaders will examine the mistakes they have made in 2014 and thereafter, and seek to avoid the same mistakes in 2017.

The writer is an analyst and commentator.