It is a measure of the confused state of Pakistani people’s collective sensibility that in the 15th year of the 21st century they are having a heated, and seemingly unending, debate on the advisability or otherwise of creating military courts to deal with terrorists. The matter could have been decided after a brief discussion because the dangers in disrupting the judicial system and the constitutional order are too great and too obvious to be ignored by anyone.

The state of Pakistan has been in love with the idea of special courts for speedy trial of serious offences since the mid-1970s when the government enacted a law to establish such courts. There is no decisive proof that these courts achieved the desired goals. But they did come under heavy fire for disrupting the judicial scheme and for deviations from due process. Eventually, the superior courts struck down the legislation.

The advocates of special courts did not give up. The Ghulam Ishaq regime promulgated an ordinance for creating special courts in terrorist-affected areas and the era of anti-terrorism courts began. When Nawaz Sharif became prime minister in 1990 his advisers suggested that the best way to deal with diehard criminals was to hang them by electricity poles (presumably without trial) in the tradition established by Mard-i-Momin Ziaul Haq. Through a constitutional amendment, special courts were set up for two years. We have no evidence to show that the exercise rid that country of heinous crime.

Throughout this period attempts were made to create new versions of special courts, progressively dilute the due process and lay down harsher and harsher penalties. The reason was the rulers’ unsubstantiated grievance against the judiciary at whose feet the blame for not countering terrorism, indeed for its rise, was laid. The idea that terrorism could not be eliminated by laws and courts alone was dismissed as heresy.

Finally, in the 1990s, when target-killing in Karachi touched a new peak the idea of handing over judicial functions to military or quasi-military courts was floated. Thus, the advocates of military courts today are treading a familiar ground and it is relevant to recall the arguments the Supreme Court had developed to stave off trials of civilians by military courts (there has never been any interference with the military’s prerogative to try servicemen by court martial).

A nine-member bench of the Supreme Court, speaking through Chief Justice Ajmal Mian, declared that "no patriotic Pakistani can have any sympathy with terrorists who deserve severe punishment, but the only question at issue is, which forum is to award punishment, i.e., whether a forum as envisaged by the constitution or by a military court, which does not fit within the framework of the constitution."

And the court added that a terrorist who killed a person and the state that took the life of a killer by denying him due process both violated Article 9 of the Constitution (the right to life).

Since there was no evidence of the judicial organ having broken down, and thus necessitating the creation of military courts, the court declared: "It is imperative for the preservation of the state that the existing judicial system should be strengthened and the principle of trichotomy of power is adhered to by following, in letter and spirit, the constitutional provisions and not by making deviation therefrom on any ground whatsoever."

The court dismissed the argument that creation of military courts was going to be a temporary measure, and said: "A government established under the constitution must not deviate from a constitutional path and must find solution to all its problems within the framework of the constitution. Therefore, to justify the establishment of military courts support must be found from the provisions contained in the constitution."

These are weighty formulations of the state’s constitutional obligations and little will be gained by ignoring them.

It might be said that it is precisely to find a way out within the basic law that the constitution is going to be amended. This view can be challenged on several counts.

First, mature states do not amend the constitution without fully justifying the cause and without pondering the consequences. The statement that "an extraordinary situation warrants an extraordinary response" is merely a slogan and not an argument, for neither the premise regarding the judicial system’s failure, nor the belief in the efficacy of military courts has been empirically established.

Secondly, the constitutional amendment will deal the judicial system a grievous blow. The judicial organ of the state can only thrive in a climate of public confidence in its ability to dispense justice. The creation of extra-constitutional forums will undermine public faith in the courts and this damage could be permanent. Everybody should think many times before dynamiting the judicial pillar of the state.

Thirdly, resort to the military court formula betrays persistence with the theory that stringent laws, summary trials, and harsh penalties are sufficient to defeat terrorism. Such views offend against history and commonsense. Can terrorists be combated without convincing the common citizens of their perfidy? Can a government fight terrorism without reviving the people’s confidence in its ability to offer good governance and meet their basic needs and respecting their rights to life, liberty, security and dignity?

All issues arising in a debate on terrorism and counter-terrorism cannot be disposed of with legal half-truths. The war against terrorism is already brutalising the society. Trial of anyone without normal guarantees of a fair adjudication and regard for due process will further brutalise the people -- a risk surely not worth taking.

We must not forget that post 9/11 humankind has been moving away from its earlier attempts to make war subject to humanitarian constraints. The world took a long time to learn that the enemy, too, had rights, including his right to life and medical care, and his right to sustenance and personal dignity during imprisonment. By becoming more and more violent and blinking at torture in internment centres and firing into deed bodies, the states are brutalising ordinary people into insufferable monsters. Pakistan must not ignore the consequences of competing with terrorists in brutal blood-letting.

Above all, it is time to give up the theory that small compromises regarding rule of law are justified in order to forestall bigger losses of argument. The fact is that small compromises invariably make greater sacrifices unavoidable. The leaders who think they can ride a tiger and persuade it to become vegetarian are in for a huge shock.

It is not difficult to see where the problem lies. Since the politicians, especially those in power have developed no non-military response to terrorism they have lost the ability to negotiate with the military leaders. The latter have reacted with unprecedented fury to the Peshawar massacre of the nation’s children. Their response is understandable. But it should not be impossible to talk to them, to explain that the medicine prescribed by them could have grave side-effects. They should be helped to consider the grim consequences if military courts do not produce the results expected of them. Where is a withdrawal strategy?

A serious effort should be made to convince them that the kind of support they need for the military operation to succeed can be made available within the existing judicial system. A simple example will make this clear.

The authors of the Protection of Pakistan Act thought that without their antediluvian measure order could not be established and went hair and tong after anyone who criticised their handiwork. Some of them are reported to have eventually realised that there was no need to have the Protection of Pakistan Act as the Anti-Terrorism Act was sufficient to serve their purpose. Strangely enough, no-one is talking of the Protection of Pakistan Act, once considered a cure for all terrorism-related ailments. Maybe the advocates of military courts need to read the Anti-Terrorism Act again besides increasing their stamina for a frank, balanced discourse.