RULE of law advocates worry about the militarisation of our criminal justice system. Proponents of democracy worry about an aggravated imbalance between the civil and military domains. That Nawaz Sharif has handed quintessential civilian functions to the khakis is not a contested fact: the military is not just in charge of external security and foreign policy but also internal security and all components of the criminal justice system.

Are there any signs that Nawaz Sharif is employing the military as a firefighting measure while his government gets civilian security and criminal justice institutions revamped for the job at hand? We are told that Sharif is burning the midnight oil personally overseeing the National Action Plan’s enforcement. Did anyone hear the PM call a meeting of IGs to ask why the police are unable to perform? Did he call in the prison administration to understand why we need the military to guard prisons?

Did anyone hear him reach out to the chief justice and ask what the executive can do to ensure that judges are able to dispense justice in a timely fashion without fear? Isn’t Sharif’s personalised, ad hoc style of governance the antithesis of what an institutionalised approach must look like? Doesn’t his history of using the military to run Wapda and identify ghost schools for example bear testament to the fact that his gut reaction is to employ the military for patchwork instead of fixing the rot within the civilian set-up?

Exposure to any component of our criminal justice system shows the entire structure is rotting.

Doesn’t he keep getting in trouble with the khakis partly because he is incapable of understanding that the military acts, reacts and functions as an institution? And as an institution that is better organised, trained, equipped and more powerful than any other institution, the military has a history of not giving up power that it comes to possess? In an environment where civilian leaders seem incapable of reforming civilian institutions and the military benefits from civilian dysfunction, will we see a demilitarisation of the criminal justice system?

None of the countries whose tough laws are cited as examples by proponents of military courts militarised their criminal justice systems after 9/11. One of the most credible approaches to fighting terror remains the strengthening of the traditional criminal justice processes and governance structures. A state trooper arrested Timothy McVeigh, the Oklahoma bomber, within 90 minutes of the explosion for driving without a licence plate and for possessing illegal weapons. It later turned out that McVeigh was the bomber FBI was looking for.

The leaked Abbottabad Commission Report highlights how Osama bin Laden succeeded in living across the Pakistan Military Academy undetected for years because our watch and ward system and ordinary governance structures have broken down. The loopholes used by ordinary criminals — stolen cars, illegal weapons, smuggling corridors, undocumented financial transactions — are also the ones used by terrorists. Exposure to any component of our criminal justice system is ample demonstration that the whole system is a rotting monstrosity.

Any SSP in a command position will tell you that he doesn’t have sufficient funds to fill gas in patrolling cars to discharge watch and ward duties. According to a recent report submitted by the IG Police to Islamabad High Court, the capital police has no funds to run forensic examination on the evidence it collects as part of an investigation. If the expense for investigation is to be borne either by the complainant or by the suspect, are we surprised that evidence in most criminal matters is forced confession?

We grade the performance of our criminal justice system on the basis of conviction rates. But we judge law-enforcement agencies on the basis of arrests made. After the operation initiated in Karachi by the PML-N government with much fanfare, we were told that thousands were arrested in a matter of days. How many have been convicted thus far? Likewise, since the National Action Plan was rolled out we are being advised that thousands of terror suspects have been arrested. Who has investigated these thousands of cases and what evidence has been collected?

Who within the system is responsible for ensuring that intelligence on the basis of which suspects are being arrested is transformed into evidence in accordance with due process so that it leads to convictions? Is evidence being shared with teams of skilled prosecutors to check if it will hold up in court? Who is responsible for engaging prosecutors during investigation to determine which cases are fit for trial? And won’t we still hold courts responsible for being weak if shoddy investigation and prosecution leads to release of suspects?

Jails are supposed to be part of the punishment system, which is meant to deter crime, effect retribution or instil reform. But do our jails serve any of these functions? Shahrukh Jatoi, who was convicted for the murder of Shahzeb Khan, reportedly has VIP status in Karachi jail and at least once a dance (mujra) has been organised inside jail premises to keep him in good humour. Mumtaz Qadri, another convicted murderer, has also been successfully running his own radicalisation camp within Adiala jail.

On April 14, 2012, TTP attacked Bannu jail and freed 400 hardened criminals. On July 29, 2013, TTP attacked D.I. Khan jail and freed 250 prisoners. After the Army Public School attack, the moratorium on the death penalty was withdrawn and jails across Pakistan became targets. But notwithstanding the aforesaid jailbreaks no lessons seems to have been learned or corrective measures taken, and the military had to be called in to protect jails.

Mr Prime Minister, where is the national action plan on prison reform? Where is the plan to reform, train, equip and fund the police? How is synergy being created between investigators and prosecutors? Where is the legislative reform proposal to ensure speedy trials? What has been done so far to put in place witness, prosecutor and judge protection systems to take fear out of criminal trials?

Does militarisation of internal security and criminal justice really appear to be a temporary measure capable of being reversed in two years?

The writer is a lawyer.

sattar@post.harvard.edu

Twitter: @babar_sattar

Published in Dawn, January 26th, 2015

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