Pakistan: The Military Courts

 D Suba Chandran

 

Of all the coups, overt and covert since 1947, the military in Pakistan should be smiling at the invitation by the Parliament to set up military courts. As a phenomenon and institution, the military courts are not new in the democratic history of nations; numerous countries have gone through this process in establishing them for a specific purpose at a particular time in their history.

Will the military courts that are being set up in Pakistan with the passage of 21st Constitutional Amendment Bill 2015 along with Pakistan Army Act (Amendment) Bill 2015 by a two-third majority in the Parliament lead to further erosion of democratic hold over governance? Or, will it only result in addressing the militancy in Pakistan, as it is being projected by the powerless government in power? Is this a right strategy for Pakistan?

Whatever may be the reasons behind the setting up of military courts, there are few larger issues. First, it clearly shows the failure of mainstream governance: not only the democratically elected government, but also the entire judicial process. Why would Pakistan need military courts to deal with terrorism, and not trial by regular courts? The argument is – the situation is not simple and merits serious and focussed intervention.

It is unfortunate, that the judiciary in Pakistan except for a brief period under the former Chief Justice Iftikhar Muhammad Chaudhry remained under the shadows of other institutions. Even today, political leaders and TV anchors make huge accusations against the honourable judges and the Supreme Court, and get away at the end with simple apologies submitted by their lawyers. Setting up of military courts mean an indirect acceptance of the inability of legal institutions to try terrorism and terrorists. The issue is not limited to the courage of the individuals or officials in the courtroom in ensuring a proper trial, but also include the ability of concerned security officials to make a proper case and present credible evidence following a thorough investigation.

While the military courts may circumvent the above issue, it will pose a larger problem in the long run. Military courts will always result in impinging civilian rights in a given political atmosphere, whether it takes place in US or in India or in Australia. This is bound to happen and has happened in the past. In Pakistan’s case, with so much of ethnic and regional polarization with Balochis, Sindhis, Mohajirs and Pashtuns, such an occurrence is inviting more problem to the nation building process.

Second, the setting up of military courts also means abdication of authority by the democratically elected government to the military. Both the governments – PML and the previous PPP were reluctant to take decisive actions against the militants. Though Nawaz Sharif did make a statement that the civilian government would decide which cases will be pursued by the military courts, this is a foregone conclusion. If the setting up of military courts in itself is a result of pressure from the Establishment, it will be difficult to believe that the elected government will have a choice in choosing which cases need to be pursued.

In retrospect, it appears both the military and democratic governments should have sincerely followed up with two big decisions that Gen Musharraf took in 2001 and 2007 respectively vis-a-vis Afghanistan and Lal Masjid. After those two crucial decisions, successive governments should have continued with fighting the militants both across the Durand Line and within Pakistan.

Unfortunately, there were repeated political deals and selective targeting of militants with a self-imposed delusion that this was not their war and was fallout of American War against Terrorism, which in turn was a residue of American led Cold War against the Russians in Afghanistan.

Finally, the larger question relates to the very objective seeing the military courts as a solution to the problem of terrorism in Pakistan. In fact the civilian government, by passing the relevant Bills in the Parliament has democratically elevated the problem as a solution. Nothing could be more dangerous than fighting terrorism in Pakistan.

How did terrorism become such a phenomenon in Pakistan internally? While there were issues relating to Baloch and Mohajir problem in the previous years, neither of the above had become such an “existential threat” to Pakistan, as the TTP led terrorism has become today. How did TTP become such a big monster? Where did it originate and how did it grow to this mammoth level.

While a section within Pakistan would live in a denial world and accuse the US, Israel and India for all the problems of violence within the country, the reality is far from it. The Establishment in Pakistan used J&K and Afghanistan to serve their narrow purposes during the 1980s and 1990s. The jihadi groups led by the Lashkar, Jaish, and the Harkat, and the sectarian groups led by the Lashkar-e-Jhangvi and Sipah-e-Sahaba were all part of a larger problem created by the Establishment to serve its own interests both within and outside Pakistan. The Taliban in Afghanistan and the TTP in Pakistan were the fallouts; unfortunately for the Establishment, it has come back to haunt them. The stooges and trump cards today have become a threat.

Military courts will only bring the Establishment into the main environment and a lead actor. While military will have to play a leading role in any governmental strategy in fighting militancy, legal processes should be in civilian hands. Military can only be a fighting arm of a democratic government. Military courts can never be a substitute to democratic governance.

The Sharif government, perhaps under pressure has taken a decision that would haunt the democratic process further in Pakistan. Perhaps, he has found an easy way out, by outsourcing the process, and thereby abdicating the responsibility of the Parliament. Military has to be used as a strategy in fighting terrorism at the ground level, but not as a legal institution to try and convict.

To conclude, the military courts may not provide the right answers to fighting terrorism Pakistan. Problem can never be imposed as solutions! In this context, solutions lie with effective governance and credible democratic process, supported by an efficient judiciary. In fact, the court systems in Pakistan are already crowded with constitutionally established secular courts, the Shariah courts and the socially approved (and at times tolerated) local jirgas. There are enough courts already in Pakistan. What Pakistan needs is justice.