Time to end the military courts

The basis of how we should judge whether a policy is working or not is to ask a simple question: “what was the original objective or purpose of this policy?”

The public policy discourse in Pakistan is varied and rich. It is loud and colourful. It is certainly entertaining – which is why media companies, even the most successful brands in entertainment, seem to flock to establishing news channels as a default business strategy. Yet for all the entertainment value of our public policy discourse, it is not particularly robust. The debate about the future of military courts offers a good example.

The military courts debate is a powerful and emotive one. Before we jump into where they came from, let’s first clarify why military courts were established. In short: what problem were the military courts supposed to solve?

The short answer is that military courts were proposed as a solution to the problem of living terrorists. Pakistan was (and continues to be) at war with a range of terrorist groups intent on destroying the social, political and constitutional order of the country. Military courts were established so Pakistan could kill terrorists more efficiently and effectively than before. The long answer is at least several PhD theses long, and its theme is the ineffectiveness and inefficiency of Pakistan’s system of justice, of courts, and of corrections.

Though no one would easily admit to this today, another key purpose of military courts was to put some teeth back into the Pakistani state. A moratorium on the death penalty that had been imposed by the 2008-2013 PPP coalition government had come to be seen as an inconvenient obstacle to the state’s capacity to put the fear of death – literally – into terrorists that were committed to destroying Pakistan. Military courts were meant to be a bypass surgery to the constricted arteries of Pakistan’s system of justice. The promise of military courts was no more heart attacks.

It was January of 2015 when military courts were established as an expression of our collective shame, anger and disappointment after the December 2014 attack on the Army Public School in Peshawar. Two years later in 2017, parliament approved them again as the continuance of an extraordinary measure. Parliament is not isolated from Pakistani society – even though many anti democracy propagandists would like nothing more than to establish such isolation. Parliamentarians are also not immune from emotion or the pushes and the pulls of their hearts. It is perfectly legitimate to see our parliament as an articulator of our national state of mind at any given time. It can make mistakes. The benefit of having a parliament make mistakes instead of having individuals make them is that those mistakes can be owned and corrected.

But it is still useful to examine one’s own mistakes. Like most Pakistanis, I was overcome with rage after the APS attack, and when I wrote about this debate on this very page, on December 27, 2015, I titled the article ‘Military courts: a defence’ and I endorsed military courts as a necessary compromise of due process and of constitutional, democratic, coherent governance. The idea back then was that the blood of nearly 150 innocent children would not be forgotten. That Pakistan was now on a path of change. No more compromises. No more delays or excuses on issues of urgent reform. Pakistan was poised to change dramatically. We were going to use the military courts as the emergency bypass surgery to fix the immediate problem of an emboldened terrorist culture. But we were also going to change our diet, stop smoking, change our lifestyle, start exercising. Pakistan was going to change.

Two years later, the military courts were up for debate again – because they were, by design, only meant to be a temporary, emergency intervention. It was clear that the APS attack had helped mobilise some national introspection, and certainly helped ramp up our national stomach for a fight with terrorists. But it did not make any substantial difference to the manner in which Pakistan was being governed. Military courts did not herald a new era of justice sector reform. They did not help judges reflect on the future of the judiciary and the need to unclog the clogged up arteries of our courts, and corrections systems. Provincial and federal governments did nothing to improve prosecution or protection (or police) services. And civil society did little to demand reform.

As usual, the Pakistan Army was doing the heavy lifting, and for so many of us, killing terrorists also accompanied an improvement in the quality of life in our cities. Who cares about legal, judicial and court reforms when there are new coffee shops to patronise and new malls to walk around in? The dark underbelly of war – the suffering of ordinary people in the areas where the actual heavy lifting was being done, the sacrifices of our military families, burying their sons, brothers, fathers and husbands, the brutality of post-traumatic stress disorders and unending nightmares for our brothers and sisters in the areas where this war was prosecuted – none of it mattered.

All of this was clear to me when the military courts came up for debate again in 2017. On February 28, 2017 I wrote an apology to my readers titled, ‘Military courts: a mistake’, because it was clear to me that the idea of military courts, while plausible at the time, was never actually constitutionally or morally defensible. Moreover, the existence of military courts, instead of instigating a series of urgent and overdue reforms, gave the civilian domain the false comfort that no such reforms were necessary.

We have made light of Prime Minister Imran Khan’s recent statement about making U-turns, but recognising and correcting a mistake is certainly nothing to scoff at or laugh about. Especially when the joke is at the expense of Pakistan. Military courts are a test of this country’s capacity to make responsible decisions about its future.

If the purpose of military courts in January 2015 was to kill terrorists, then the success of these courts is questionable. Of the 717 cases that the government had passed on to military courts, death penalty had been awarded to 310 terrorists. But of these 310, only 56 have been executed. Thousands of terrorists have been killed in military operations, and some of the most important ones are killed in encounters with the police or in intelligence-based operations in cities and villages across the country – including some of the most dangerous terrorists the world has ever known, such as Malik Ishaq of the Lashkar-e-Jhangvi. Suspending all judgement about those military and police operations, if we are to assess the value of military courts, we must examine what the cost is versus the benefit.

The cost of military courts is continued and unending rot and decay in the country’s courts system. The benefit of military courts is a speedy trial and conviction and hanging of less than five dozen terrorists.

In what universe is this a bargain that makes any sense? Military courts are not an effective killing machine – our police and armed forces have done and continue to do a remarkable job of finding and killing terrorists. The availability of military courts offers no compelling basis for their continuance.

Now imagine a Pakistan without military courts. I would fully expect that in the absence of these courts, a parade of security and law-enforcement officials would express anxiety about the potential freedom of the terrorists that they capture and put in jail, in anticipation of trials that take too long to happen, in courts whose judges lack the stomach to announce death penalties for jet black terrorists.

The solution to this legitimate anxiety would be to reform the courts. Maybe wholesale reform would be too difficult. But reforming and reframing the anti terrorism courts system is a much more fathomable domain. Even narrower would be the provision of court premises that blind convicts to the identities of judges. Narrower still, the enactment of legal provisions for high security and higher pay for judges and court staff who have to take higher risk.

All of these solutions would strengthen Pakistan, whilst contributing to the efforts of our soldiers and spies in our continuing war with terrorists. It is time for the military courts to end.

The writer is an analyst and commentator.