Fortifying blunder

Legal eye

When a case was initially made for military courts as an extraordinary one-time response to a national emergency while we got our act together and fixed the justice system, many had argued that once we slide down this slippery slope it would be hard to stop.

One can almost always rely on our power elite to fortify blunder and make predictions of doom come true. Now we hear that there is near consensus in parliament on granting a new lease of life to military courts while expanding their jurisdiction. This is the repeat of a mistake.

When Donald Trump makes a case for a travel ban for Muslims and establishing a Muslim registry, a precedent cited approvingly is that of the internment of Japanese Americans during World War II. The US Supreme Court had upheld the executive order in Korematsu v United States. Three judges had dissented. Justice Robert Jackson (with apologies for quoting him repeatedly) had opposed adulteration of the constitution and rule of law in the name of necessity and had warned that such precedent could become recurring:

“A military order, however unconstitutional, is not apt to last longer than the military emergency … But once a judicial opinion rationalizes such an order to show that it conforms to the constitution, or rather rationalizes the constitution to show that the constitution sanctions such an order, the court for all time has validated the principle of racial discrimination in criminal procedure… The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

After the harrowing APS attack, our power elite ran out of ideas and thought fit to amend the constitution to provide for military courts. The matter went to the Supreme Court, which while assuming authority to strike down constitutional amendments ruled that military courts neither fell afoul of our constitutional scheme of separation of powers nor violated fundamental rights guaranteed by the constitution. Military courts thus became the ‘loaded weapon’ available to our state which has patented claims of urgency and need for exceptions.

In this sordid story, the least amount of blame rests with the military. The first choice of any party to litigation is to have a judge who is on its side. The follow up choice is a judge who is fair and independent and likely to adjudicate a case like a neutral arbiter of the law. Wouldn’t the police wish to be investigator, prosecutor, judge and executioner simultaneously? Given a choice, wouldn’t policemen like fellow policemen to sit in judgement over those they arrest and deem guilty?

The establishment of military courts and continuing support for them raises troubling questions about us as a polity. What is the value of foundational principles in our jurisprudence, policymaking and public mindset? Do we believe someone accused of terror or other abhorrent crime has any rights? Should an accused be defended by a counsel of choice? It is fair to judge such counsel for representing a criminal? Or should we end the distinction between accused and guilty altogether?

What does support and approval for military courts say about the principle of judicial independence and separation from the executive? Do we not have a body of jurisprudence explaining why a judicial organ separate from and independent of the executive is required to uphold the compact between state and citizens? If our superior courts found that executive magistracy was ultra vires of the constitution and members of the executive couldn’t exercise judicial powers, why does the same principle not apply to military courts?

Have our courts not held – in relation to executive agencies and departmental appeals – that an independent forum outside the agency’s hierarchy must uphold an order impinging on a citizen’s rights to be given effect? Why does this principle apply to some rights (in tax matters, for example) but not when life and liberty are at stake? Even if the principle is to be applied to criminal matters alone, why shouldn’t police action in relation to lesser crimes be shielded against searching judicial scrutiny when terror charges attracting death do?

We are told that common law has long maintained that everyone is to be deemed innocent until proven guilty and in proving guilt the burden of proof is on the one making the accusation. Our constitution holds plainly in Article 13 that “no person shall when accused of an offence be compelled to be a witness against himself.” How is it then that an overwhelming majority of those tried and punished by military courts have been punished not on the basis of evidence adduced by the prosecution but admissions of guilt by the accused?

If we are a society with no patience for courts releasing accused for lack of evidence and we would rather manufacture courts that have a 100 percent conviction rate, let’s change the rule and hold that the standard of proof required to take life will be balance of probability. Instead of falsely eliminating doubt, why don’t we accept that we are willing to be members of a state that takes life on the basis of probability and if some innocents have to hang for the larger public good (on not getting the benefit of doubt) so be it?

We have become a crowd incapable of distinguishing right from wrong. We have come to see proponents of fairness and due process in determination of rights (as guaranteed by Article 10A) as apologists for crime and delinquency. We believe it is right to produce spectacles of our liking in individual cases instead of building institutions capable of producing justice by indiscriminate application of principles. Instead of building institutional capacity to apply principles across the board, we are perverting principles to create a false sense of respite.

The degradation of our moral compass is as worrying as our inability to think through issues and let a common sense cause-and-effect analysis guide policy. Can revenge be a sensible state response to terror? After the recent spate of terror attacks that claimed over 100 lives in a week, we were informed by the state that it had also bumped off over 100 terrorists within a couple of days. Who were these terrorists? Were they tried for their crimes or killed in encounters? Will such knee-jerk executions make everyone safer?

The case for military courts as a means to fight terror rests on two assumptions. One, terrorists of the sort that we are faced with can be deterred by the threat of harsh punishment such as the death penalty. And two, accused get released from civilian courts because judges are either incompetent or afraid. Both suggestions, apart from being contestable, misdiagnose the problem and misconceive the solution.

There is no objective basis to conclude that terror or other heinous crime can be deterred by threat of harsh punishment, as it is certainty of punishment and not its severity that reduces crime. To create certainty of punishment we need functional institutions producing predicable results consistently and not ad-hoc arrangements producing consequences in select cases. The terror infrastructure will not fall apart due to fear of courts. It will have to be dismantled by taking down the supply chain and addressing root causes.

And the accused get released by courts because our investigations are faulty and prosecution weak. The solution again is not installation of judges willing to convict the accused without evidence. Fixing the court system will produce efficiency and reduce pendency, and must be done. But an efficient court system will not impact terrorism unless the criminal justice system and its non-court components – investigation and prosecution – are fixed. Calling in the military to act as police and judges solves nothing.

When all else fails, we will need to undertake laborious rebuilding of the moth-eaten civilian institutions that comprise our criminal justice system. The sooner we start the better.

The writer is a lawyer basedin Islamabad.

Email: sattar@post.harvard.edu