SHOULD military personnel be tried in civilian courts? It is a fraught question, but more for political reasons than legal ones. In legal terms, military personnel can be investigated, charged and tried by the civilian law-enforcement and judicial apparatus and it is the military that has to make the case for trial in a military court as opposed to a civilian one. For the most part, this is neither controversial nor very problematic. Crimes committed by one individual against another in their private capacity have little to do with the institutional interests of the military and so there is little reason why, say, theft or assault cannot be tried by the civilian apparatus. But, as the Supreme Court bench led by Justice Jawwad Khwaja has discovered in the case of the 35 missing persons taken away by the military from a Malakand detention centre, once institutional interests come into play the question of civilian jurisdiction is somehow always made controversial.

In the case of missing persons, there is an obvious and inherent conflict of interest were the military to try personnel accused of abducting and illegally detaining missing persons: the military personnel accused of such crimes would necessarily be acting on orders issued by the military itself based on an institutional approach to dealing with terrorism and militancy; therefore, the military would be in effect trying itself were military jurisdiction to be accepted — a violation of a basic tenet of justice. But there is further reason to hope that the Supreme Court will issue a definitive and clear-cut order on the matter of civilian vs. military jurisdiction. Each time there is the potential for embarrassment or worse for the military in a legal issue, the military seeks to take the matter out of the public domain and dump it in the military’s purview. There the matter is either allowed to languish — as has happened in the NLC scam involving three retired generals — or dealt with away from the gaze of the public to minimise the public-relations and image fallout.

Taken to the preposterous extreme, civilian jurisdiction has even been questioned by the defence team in Pervez Musharraf’s treason trial — a risible claim that seeks to subordinate the constitution to military law. But then none of this would be possible if civilian institutions were stronger and the military accepted civilian control. How to arrive at that promised land remains as vexing a question as ever. Should civilian institutions be strengthened first? Can they be strengthened in the presence of an overarching power like the military? Should the military’s unwillingness to subordinate itself to civilian control be chipped away at first? The missing persons case offers potential movement on both fronts: if the SC reiterates civilian supremacy, handling the matter responsibly in the civilian domain will boost civilian capacity and limit the army’s carte blanche.

Published in Dawn, May 18th, 2014