A question of justice

When Georges Clemenceau claimed that, “military justice is to justice what military music is to music,” he was being unfair to military music. We legitimised military justice through the 21st Amendment. Our parliament introduced military courts. The judiciary came under criticism after the APS attack for failing to deter terror and releasing terror suspects. It found an opportunity while stuck between a rock and a hard place: it claimed for itself the power to strike constitutional amendments down while upholding the 21st Amendment and military courts.

In 2015 military courts were introduced as a necessary evil for a two-year period. The sunset clause was thrown at critics as a guarantee of the temporary nature of this experiment. Many had argued even then that a genie once out of the bottle acquires a life of its own. In 2017, military courts were extended for another two-year period, which now expires at the end of March. A move is afoot to extend military courts further. The debate stands framed even without discussion on the issue: if you are a patriot, you must be pro all things military, including military courts.

We’ve come a long with since ‘Mehram Ali’, wherein the Supreme Court declared a number of provisions of the Anti-Terrorism Act unconstitutional for being in breach of fundamental rights and foundational principles like separation of powers and independence of judiciary. Read ‘Mehram Ali’ today and you might think it was interpreting a different constitution. It wasn’t. But a change has come about, especially in the last five years. The SC has also set a new trend of constituting JITs comprising serving army officers from the ISI and the MI.

During the peak of terror in Pakistan there was a debate between adopting the criminal justice paradigm or the war paradigm. Proponents of the former argued that our criminal justice system could be tweaked to enable effective prosecution and conviction of terrorists. Critics argued that Pakistan was in a state of war and thus citizens who picked up arms against the state ought to be treated as enemy combatants and denuded of their fundamental rights (right to due process etc). During General Kayani’s time support for the criminal justice model prevailed.

The compromise was new instruments of the law – less protective of the rights of citizens, to enable action against terror suspects. We then saw an amended ATA, the Fair Trial Act, 2013 and the Protection of Pakistan Act, 2014. Part of the idea was to create a legal basis for military agencies to get involved with exercise of state’s police powers and investigations etc. and bring within the fold of the criminal justice system those who had disappeared and others interning in military camps who had been captured during various military ops in Swat and Fata.

But then APS happened and all hell broke loose. The war paradigm was back on the table and carried the day. Military courts came into being wherein the military was to act as the police, prosecution, judge, jury and executioner. There was no appeal against orders of the military courts. The SC merely left open the option of very limited judicial review before high courts where military court proceedings were mala fide or without jurisdiction. It was in this context that those convicted filed reviews against verdicts before the high courts.

The war paradigm didn’t replace the tweaked criminal justice model. It added to it. The military’s role as the predominant internal security agency became even more pronounced post-Panama as the SC appointed JITs comprising members of the ISI and MI. Thus the military that had exclusive control over terror-related cases through military courts, and an important role in internal security matters through the tweaked criminal justice system, also became a key player controlling white-collar crime with JITs working closely with NAB.

The seemingly two-pronged model of justice creates problems putting the high courts in an awkward position. For example, petitions having been filed before them for missing persons, the courts ask the police and intelligence agencies about them. But stuck between allegations of abduction and claims of ignorance, the courts get nothing. It gets absurd in cases where such persons are subsequently convicted by military courts.

With Khyber Pakhtunkhwa and Fata being the epicentre of terror and military ops, the Peshawar High Court is in the eye of the storm. In October 2018, the PHC accepted over six-dozen petitions by those convicted by military courts. The 173-page judgment is painful reading. The PHC found that military court orders suffer from ‘mala fide in law’, that petitioners weren’t afforded right to independent counsel, that none adduced any evidence in their defence and courts’ conviction orders contained virtually no reasoning.

The SC suspended the PHC judgment in December 2018 and the matter has yet to be adjudicated. But meanwhile petitions against military court orders continue to pour in. To adjudicate such reviews, the PHC orders the ministry of defence to produce record of military court proceedings. The ministry then drags its feet. There are cases where there are no charges against those arrested. In some cases charges are hysterical: a couple of weeks back the PHC was hearing the case of an accused charged with terror for allegedly smoking a joint with an alleged TTP member.

Things aren’t any better within the internal security realm. The logic of tweaking the criminal justice system to offer the military a seat was to ensure that the state could function within the realm of law while fighting security challenges. So then there should have been no new missing persons’ cases post the tweaking. But there are. In at least two judgments passed in 2018 the Islamabad High Court was forced to slap fines on secretary-level officials for their utter disregard for fundamental rights and liberties of citizens who went missing.

And then there is NAB and its shenanigans, (late) Brig Asad Munir being the latest victim. Asad Munir was a man of pride, honour and candour. These laudable traits can be quite a burden in today’s Pakistan. Having led his life with integrity and honour, while continuing to speak his mind, mostly as a soldier and for four years as Member Estate CDA, Asad Munir believed he had nothing to hide. When NAB brought corruption charges against CDA officials, including him, he felt he was being wronged. The badgering by young NAB officials added insult to injury.

Seppuku (hara-kiri) was a Japanese ritual of suicide. It started with the Samurai who, to preserve their honour and that of the family, would prefer to die by taking their own lives rather than fall into enemy hands. Asad Munir didn’t wish to lose his dignity to NAB, to be paraded before the public (like many others have been) and subjected to a media trial. His pride probably didn’t let him seek help from his boys’ network. (If you’ve done no wrong, you don’t want to seem needy.) He then took his life to prevent his name from being sullied and to preserve his honour.

But to fix the wrong done to Asad Munir we would need to acknowledge the injustice and ignominy being meted out by NAB to many others under state patronage. When you hand power to anyone without accountability, its abuse is a certainty. And if you subject NAB to effective external checks and balances, how do you ensure that the vast authority and discretion vested in NAB will be exercised such that it produces the desired consequences in matters of special interest to the state?

The SC can adjudicate, sooner rather than later, the defence ministry’s appeal against the PHC judgment, to determine whether military courts are dispensing justice or revenge based on suspicion. But will it? Our parliament can engage in a meaningful debate about extension of military courts, by summoning from the defence ministry record of trials conducted by military courts so far and determining through application of mind whether the process in place meets basic standards of fairness. But will it? As for the executive, let’s not even ask what it can do and if it will do it.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu