Wrong choice

Military courts is not the way to go

The decision to form military courts through amendments in the Army Act is a wrong choice. It has inherent risks of undermining the evolution of democracy and hence subjugation of will of the people to those in uniform. It has the potential to aggravate the issue of militancy as it becomes a conflict between military and militant. Our civil and military leaders have failed the nation because of their shortsightedness and impulse of tribalism. The formation of military courts in the aftermath of Peshawar terror incident is another example of that attitude. Let me try to give some argument to justify this point of view.

Military establishment in Pakistan has a long history of no respect for rule of law or constitution. A policeman does not dare to stop a military officer if he is committing even a traffic violation. At the highest level General Zia-ul-Haq famously said that the constitution was just piece of paper and not a divine mandate that he had to follow. This long history of constitutional abrogation and loyalty to institution even at the cost of breach of law has created a deep sense of mistrust between civil and military leadership.

During the tenure of PPP, after General Pervez Musharraf’s ouster, every now and then there was talk of a technocratic setup being prepared to take over with the support of military. At the start of the term of PML-N government there hardly went a day when speculations about scripts and conspiracies were not suggested to introduce technocratic setup to govern us. These speculations get credence when respected op-ed writers openly promote and invite army to interfere by overthrowing the government and save the nation. In this environment of round the clock conspiracies the impression one gets that the military has decided to gradually encroach on the civilian space rather than grab power through direct intervention, gets perception of fact rather than fiction.

The military seems to be uncomfortable with the new found independence of the judiciary and their willingness to question acts that impinge on civilian rights, especially the issue of missing persons. This has compelled the military to take matters in their own hands. Courts have granted death penalties to a large number of terrorist convicts and it cannot be considered a total failure. Although there is need for deep reforms in the judicial system but no one is talking about or even considering as an important item on the agenda. Judges have been threatened and targeted by terrorist especially those that gave verdicts against them. Some of these judges lost their lives in the line of duty. A good step would have been to provide them and key witnesses a protection plan. If it is suggested that judiciary cannot deal with it today then they will not be able to do so two years later in the absence of reforms. So it seems in the absence of any reforms, military courts will become a permanent fixture rather than a short-term remedy. Especially since war against militancy and terrorism will be a long drawn war.

Military in Pakistan has a long history of taking authority in their hands and then refusing to relinquish it. Rangers were introduced in Karachi as a short-term measure and have now become a permanent fixture in the city. This encroachment on civilian space has seriously limited the development of police as an institution. On the other hand foreign and security policy is considered a natural domain of the army and no civilian government has the independence to pursue it without getting a node from GHQ. People fear similar attitude will be adopted towards military courts and it will undermine the evolution of judiciary as well as impinge on civil liberties.

Another thing we have to consider is that the current crisis of terrorism, militancy and extremism is the result of wrong policies of General Zia-ul-Haq and General Pervez Musharraf. It was military that created the idea of good and bad Taliban. It was their suggestion to have strategic depth on the western front. And now the military is creating an impression that it is the one that has decided to get rid of this menace rather than the civilians and want to take full credit for it. There is no doubt that this is an important change in the attitude of military leaders but at the same time they have been protecting the failures of their subordinates rather than punishing them for lax performance of their duties.

I don’t know if ISPR has ever issued a statement that military leaders in their corps commanders meeting have taken a serious notice of failure in preventing terrorism because of intelligence lapses. Although they are quick to issue directive to civilians that they are concerned about political deadlock resulting from dharnas and advise government not to use state power to deal with it. This inability to have accountability has weakened the military as an institution and has created risks for national security. This should be an important item on the agenda but no one is talking about it in the National Action Plan (NAP). Instead they are rewarding them with more powers. Now military is working as soldiers, diplomats, judges and policemen. What is left that they have to grab to have complete control? By the way, they are already businessmen and real estate developers as well.

So what should be done? If I was sitting at the decision making table I would oppose the formation of military courts tooth and nail. But since it was obvious that politicians will not be able to bear the pressure, I proposed a four-point solution to my party PTI. Instead of taking the route of amendment to Army Act, I proposed that these special courts should be authorised through the Protection of People Act (PPA) which already has a sunset clause of two years. PPA was an act of Parliament so it will provide necessary legitimacy to these courts as well. I recommended to the party that support for this amendment should be conditioned on introduction of judicial reforms, a negative list that cannot be tried in these courts, a political solution to FATA, and resolution of issue of missing persons, especially in Balochistan.

Short-term measures with long-term negative consequences are a wrong choice and the nation will pay the price for it. Military leaders should realise that the solution to issues especially related to nation building cannot emanate from the barrel of the gun. They are suffocating the space for evolution of creditable civilian institutions and this will eventually undermine the state.

It seems the trouble for this nation is not yet over and the imbalance in civil-military relations will weaken the evolution of stable and durable institutions.