“WE cannot solve our problems with the same thinking we used when we created them,” Einstein had argued. The latest multi-party conference that came up with the 20-point action plan against terror affirmed that the foremost problem afflicting Pakistan’s leadership is not its lack of will or courage, but its lack of capacity. We saw once again a flock of pygmies, devoid of an original thought, willing to be herded in whichever direction the army chief pointed his stick.
Asmatullah Muawiya threatened Nawaz Sharif with attacks on his family if the GHQ attackers were executed. And our mighty leader extended the moratorium on the death penalty on the false basis that the EU would get mad if we didn’t. The new mantra of our khaki leadership (that has had exclusive control over our national security policy since Pakistan’s inception) is that terrorism is proliferating because our courts are soft on terror or because we aren’t hanging convicts.
Fact: Pakistan has the world’s highest number of death row inmates ie 8,000. Fact: thousands are serving life sentences for heinous crimes. Fact: civilian and not military courts passed these sentences. Fact: these sentences weren’t enough to deter terror in Pakistan. Fact: terrorism didn’t emerge in Pakistan after September 2008 when the PPP first imposed a moratorium on executions. Fact: the link between death sentences and reduction of crime is heavily contested.
Our proclivity for deluding ourselves and relying on ad hocism seems to be gathering strength. What is the latest magic solution to curbing terror? Military courts! Will punishments for suspects dry up the supply chain of terror? No one knows. But the popularity of the idea is proof of how militarised our thinking as a society has become. The bottom line is that we are angry and to soothe our hysteria we need to draw blood. Or in civilised terms, these extraordinary times call for extraordinary measures. Answer: military courts.
Our proclivity for deluding ourselves and relying on ad hocism is gathering strength.
The argument put to the constitutionalist comprises distorted reasons for lack of convictions tagged to the conclusion that as courts have failed to deter terrorists, we have no option but to outsource the job to khakis. But why not fix the judicial system instead of creating an aberration, one might ask? Because we have no time or patience to allow faint-hearted talk of rights to get in the way of revenge. Not yet convinced? Here it is again: we are at war; the enemy has no rights; if the judges are too chicken-livered to finish the job, the khakis will do it themselves.
It was Cicero who first said something to the effect that, ‘in times of war the law falls silent’. The US Supreme Court employed the logic in Korematsu v. United States upholding an executive order consigning Japanese Americans to internment camps during The Second World War. Three judges had dissented. Justice Robert Jackson was most forceful, for he exposed the danger of bastardising the constitution and rule of law in the name of necessity or expediency:
“A military order, however unconstitutional, is not apt to last longer than the military emergency … But once a judicial opinion rationalises such an order to show that it conforms to the constitution, or rather rationalises the constitution to show that the constitution sanctions such an order, the court for all time has validated the principle of racial discrimination in criminal procedure.… The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
Pakistan is a nation guided by transient emotion. Led by such emotion Gen Ziaul Haq conceived the jihadi project in the ’80s, which stayed alive and well under succeeding army chiefs. While a liberal himself, but driven by considerations of expediency, Musharraf legitimised organised militias in Fata by entering into peace deals with the likes of Nek Mohammad and Baitullah Mehsud. This sounded the death knell for the maliks (literally) who previously served as the link between the state and Fata.
After Musharraf, Gen Kayani thought it best to let the problem of terror fester. Forget civilians casualties, we saw attacks on GHQ, Mehran, Kamra, Parade Lane, SSG HQ, and ISI facilities. We saw generals attacked on and off-duty. We saw Haqqanis come and go. We saw Osama bin Laden hunted down in our backyard. We saw Taliban establish their emirate in North Waziristan. We saw Lashkar-i-Jhangvi run amok killing Shias at will. In this backdrop, should we have called for raising a new army, different from one that seemed complicit or incompetent?
We must thank our stars that we finally have an army chief who is willing to break with the past and extinguish the infrastructure of terror his institution has nurtured over decades. But can Gen Sharif look himself in the mirror and claim that Hafiz Saeed, Zakiur Rehman Lakhvi, Malik Ishaq and Abdul Aziz have been released by civilian courts despite foolproof evidence of their culpability having been produced by intelligence and investigation agencies? Why distort the real reasons for lack of convictions?
Should courts punish terror suspects even if the state/prosecution fails to establish charges against them beyond doubt? Should a terror suspect be found guilty unless proven innocent? In so, we want persecution not prosecution. Why then use the fig leaf of military courts to denude justice? If we have decided that we can’t quell terror without killing key terror suspects, why lie to ourselves that the military fighting and capturing terrorists can then offer its PoWs a fair trial and sit in judgment over them as neutral arbiters with no preconceived notions.
Only a nation that lives by thoughtless short-cut solutions would choose to assert the state’s writ at the cost of its legitimacy. Our courts aren’t beyond reproach. Maybe they’ll breath a sigh of relief for the thorny problem of terror being taken off their plate. But only a nation hypnotised by transient emotion would think of swapping soldiers for judges or rendering its criminal justice system irrelevant amidst a civil war when one is most needed.
The writer is a lawyer.
Published in Dawn, December 29th, 2014