IT doesn’t matter if a cat is black or white, so long as it catches mice. — Deng Xiaoping
Deng’s remarks about the irrelevance of the colour to a cat’s mice-catching abilities seems relevant to the raging controversy over the decision to set up an alternative system of military courts to put on trial those waging war on the state. One can keep arguing against the decision, and with very good reason, the consequent militarisation of the justice system.
But it is also true that these are not ordinary times. The demand of the situation has changed with the country under siege. For sure there is a need to strengthen the entire judicial structure, but can a nation in a state of war wait for the revamping of the system, and for how long?
The militants who massacred schoolchildren and beheaded soldiers surely committed war crimes.
The militants have long since been waging a war against the Pakistani state. But it is only now that the political leadership has finally concluded the nation is in a state of war which completely alters the paradigm — from peacetime to a war environment.
Though the realisation has come too late and at a very heavy price, the war now has to be fought with all the means available to the state. This necessarily also raises the question about how to deal with elements involved in what are defined under the law as war crimes.
For sure, we already have legal instruments to deal with cases of terrorism. But can they be effective in a war situation? For the past several years, the armed forces have been engaged in fighting insurgents not only in the tribal areas, but also in parts of KP. The military campaigns in those regions were authorised by the government under the Constitution.
The militants went ahead and extended their war beyond the conflict zone to the country’s main cities. Under this situation, the attacks on civilians and security agencies do come under war crimes. The militants who massacred schoolchildren, beheaded soldiers and attacked defence installations have surely committed war crimes and must be dealt with as such.
Alas, it took the gruesome Peshawar school massacre to awaken the government and political parties to the existentialist threat, while thousands of people had already become a victim of the relentless terrorist attacks over the past decade. The state of denial and capitulation has allowed militants to gain further space.
Our response to the militant attacks thus far has mostly been reactive with no clear strategy for a decisive war. A major flaw was that there was no clear policy on what to do with the combatants captured by the security forces and intelligence agencies in the conflict region. More than 6,000 alleged militants arrested in Swat, Waziristan and other tribal areas have been languishing in army detention centres for the past several years without being produced before any court of law.
Successive governments ignored this grave problem and failed to develop a legal mechanism to deal with the detained combatants. The issue of missing persons became more and more of a scandal. Neither the civilian administration nor the security and intelligence agencies have been willing to take responsibility.
That has also resulted in a marked rise in alleged extrajudicial killings. Hundreds of hardened militants who faced trial in the anti-terrorism courts benefited from the outdated law of evidence and were freed by the courts. Threat to their lives prevented judges from convicting the others. Recently, the government introduced the Protection of Pakistan Act, but could not find magistrates to run the courts set up under the act. The anti-terrorism courts have virtually become a joke with all kinds of cases being referred to them.
Now for the very first time the political and military leadership seem to be on the same page on taking decisive action against militancy and terrorism. The Peshawar school tragedy too has finally brought the major political parties together in supporting a national plan of action. This newfound resolve must not be wasted on the sole issue of military-led special courts.
There is no doubt that the military is now in the driving seat and surely with the concurrence of the political leadership. It was the government’s decision to bring in the top military brass to the multiparty meetings. Call it surrender or anything else, this abdication of authority by the political leadership certainly undermines the claim of civilian supremacy.
Yet it is wrong to conclude that it was purely pressure from the military that made the political parties agree on the counterterrorism action plan of which military-led special courts are a part. Many political leaders have long been advocating tougher action to counter the terrorist threat, though they may have reservations over the military-led special courts.
It is fair to argue that there could have been a better option than the military courts though it is not clear what other alternatives could be as effective in the present situation. The military courts are surely not the most desirable system of justice even in this conflict. Their acceptability can only be based on temporary measures to deal with those challenging the state and indulging in killings.
It is, however, wrong to compare the proposed military-led special courts to those set up under military rule. These courts would not be working autonomously, but will be under the control of civilian authorities for a limited period of time. The amendment in the Constitution does not give carte blanche to the military to decide whom these special courts should try. They would only be used to try the hardened terrorists and those who incite violence in the name of religion.
For sure, there is always a danger of these courts being misused. But it is for parliament and the Supreme Court to keep a strict watch on them and not let their supremacy slip away.
The writer is an author and journalist.
Published in Dawn, January 7th, 2015