Babar Mirza
States are meant to be permanent structures built around a firm ideological core. But with novel threats and opportunities, states need to change as well. Per force, such changes tend to take place at the uncertain margins rather than the core. Presently defunct military courts, despite being proclaimed to be part of an existential war for Pakistan, were merely a dispensable appendage at the farthest margins of the Pakistani state and, it is submitted, cannot and should not be continued in their present form.In our criminal justice system, while we have the regular courts established under the Code of Criminal Procedure 1908 administering the Pakistan Penal Code 1860 (and other special laws), we also have a whole host of special courts such as anti-narcotics courts administering the 1997 anti-narcotics law, the anti-terrorism courts administering the 1997 anti-terrorism law, accountability courts administering the 2001 NAB ordinance, and, recently, the special courts established under the Protection of Pakistan Act 2014.In a way, military courts established under the 21st Amendment in January 2015were just another set of special courts created to deal with a special set of offenders, that is, members of terrorist groups “using the name of religion or a sectâ€. But there were three important differences: Firstly, all other special courts are administered by civilians with rights of appeal to superior judiciary, that is, the several High Courts or the Supreme Court. However, military courts were manned by military officials and their decisions were open to appeal only before the military authorities. In other words, military courts effectively created a parallel system of criminal justice. Secondly, all other criminal laws hitherto enforced in Pakistan are intended to give protection to different religions. However, the 21st Amendment is unprecedented in that it conceives religion as a possible tool for terrorism. Thirdly, military courts, unlike any other criminal court, were designed to work for only two years. These differences highlight how marginal change military courts represent to the status quo, and that, therefore, they were a truly temporary arrangement designed to exist practically outside the Constitution. To its credit, under the admittedly extraordinary circumstances in the wake of the APS Attack, there was sufficient clarity on the nature of the malaise to justify this constitutional deviation. Having a constitutionally mandated extra-constitutional arrangement looks ugly, feels wrong, and cannot be tolerated except by way of exception. And an exception repeated is not really an exception, is it? By their very nature and promise, military courts were supposed to achieve whatever they could in two years, and there is no legal, moral or aesthetic justification for simply extending them for another two years. At the end of the two-year tenure of military courts, there are still many “jet black terrorists†using the name of religion to prosecute.
What to do?
As often, there is an easy way and a hard way.
The easy way is to internationalise the issue: let the legal eagles come up with a new legal definition that is a variation on the concept of “enemy combatant†used by the Bush Administration in its war on terror. The purpose here would be to declare members of religiously inspired terrorist organisations a species of international conflict short of giving them the status and rights of a prisoner of war under the Geneva Conventions. In other words, we can have our cake and eat it too. This approach would be hugely questionable in terms of its antecedents but it would save the Constitution from defilement.
Needless to say, saving the Constitution from defilement is not the only problem at hand. We also perhaps truly want to eradicate the malaise, and that is the hard way.
Thankfully, Pakistan has graduated beyond the top ten in global terror rankings. But, the increasing calm in Pakistan in no way means any lasting resolution of the underlying intra- and international conflicts and tensions. A bigger war, it seems, is in the offing.
Pakistanis are a nation of more than 180 million. With China beginning to talk big with One Belt-One Road, Pakistan has no chance of surviving with its traditional duplicity it manages to impress upon observers. The Pakistani state must prepare for the big changes it would soon be expected to make for its people so that they can be integrated into regional markets.
Further, it is little understood in the Pakistani governance paradigm that the risk of terrorism in particular, and crime in general, in Pakistan as anywhere else in the world, is related less to the lapses of security or intelligence and more to whether someone out there is aggrieved enough by your policies and actions to think of taking you to hell with him. The “security risk†is as much a matter of social justice as it is about the writ of the state.
Therefore, keeping the long-term objective of social reformation in view, we might want to consider regularizing the offences committed “using the name of religion or a sect†into our ordinary criminal law under the Constitution including all the fundamental rights. For example, we may keep the forum of trial with the military courts so as to maintain necessary secrecy and protection of witnesses, lawyers, and judges but make their convictions subject to confirmation by a sufficiently large bench of the Supreme Court.
If the military courts profess to be so faithful to principles of natural justice, then perhaps they should be expressly bound to share all their records of these cases with at least the judges on appeal. Further, there is no reason why the honourable judges of the Supreme Court cannot assure the military establishment of maintaining the secrecy of their records in exchange for extending protection to such judges as well.
No doubt, if a trial is to be held, it must be seen to be fair in the eyes of highest judges of the land. Otherwise, it can easily be seen as judicial murder, which in turn is more shameful and more damaging than even extra-judicial killing.
