Though there is a clear understanding that parties will not play politics with the War on Terror, the introduction of the 22nd Constitutional Amendment and the accompanying enabling amendment to the Army Act exposed just that: that the parties are seeking partisan interests in this.
It should also be reasonably clear that the issue also marks the political debut of the new COAS, Gen Qamar Zia Bajwa, as he presides over a service that tries to get a share of the pie. It would be considered unpatriotic to oppose the legislation, which adds to the problems of those parties, which wish to oppose the government on it, but do not want to resist the military. That has not stopped the PPP from refusing to give the government the unanimous vote it wants. Being on the other side of the issue as the military has become extremely unpopular, especially after the series of horrendous attacks by militants, in which they seemed to have been striking at will, in all parts of the country, creating an atmosphere of horror and climate of fear, which was dispelled, albeit only partially, by the holding of the PSL final in Lahore.
The main party whose opposition was seen, the PPP, based its challenge to the extension of the military courts on perceived shortcomings in their observance of human rights, with a series of demands that it made for its support of the passage. The government has the two-thirds majority in the National Assembly that it needs for constitutional amendment, but lacks a simple majority in the Senate, let alone the requisite two-thirds. For that, it will need the cooperation of the PPP and the MQM, which have both got specific issues with the military because of the Rangers operation in Karachi. The MQM has found itself disrupted by the Rangers, while the PPP has found the operation has rounded up such pals of ex-President Asif Zardari as former PM’s Adviser Dr Asim Hussain.
The PPP unveiled several proposals for reform at a press conference by party chief and former President Asif Zardari himself. As he had left the country before after making anti-military remarks, his stance was considered crucial. His holding of an all-parties conference on the issue was considered significant, for it opened the prospect of the PPP supporting the extension. One of the reform proposals may well have exposed why the military courts were called into being in the first place. It was proposed that a sessions judge be included in the court martial trying offences under the Act. The main justification for the military courts had been that civilian judges were liable to cave in to threats from militant organisations, and refuse to complete trials, and even to acquit the accused. The military courts might need the legal acumen provided by civilian judges, but the military courts were supposed to buy time so that the civilian legal system could be reformed.
Was this done? There do not seem to have been any quantitative studies done, which would determine the efficacy of any measures taken to strengthen the civilian legal system. The result might well be that the present extension might be the first of many, and the deadline on reform that the time limit of involvement represented will be ignored. There is no quantification of the ability of military individuals to resist militant pressure, so introducing civilian judges in military courts would increase the chances of getting individual judges liable to pressure.
That the military wanted the extension can be gauged from the recent Corps Commanders Conference, which called for the National Action Plan to be implemented. Were the purposes of the original extension not achieved? One of the initial features of the military courts’ operation was the conviction and subsequent execution of those accused of attacks on military personnel. Let alone terror as a whole, attacks on military personnel have not stopped. Military courts are not a deterrent. Indeed, it shows a touching faith in the uniform to imagine that militants who believe that blowing themselves up in this world will be rewarded by salvation in the next, will be stopped by anything that can be thrown at them by a civilian court. In fact, the penalties that it hands down will be rewarded in the next world, so a captured and punished militant also has no reason to fear those courts.
However, just because the anti-terrorism strategy does not work, does not mean it will be abandoned. Military history is replete with instances of failed strategies continuing to be pursued long after their failure has become evident. Indeed, civilian history is also filled with such instances. One reason is that the authors of the failed strategy will do their best to defend their actions, as well as the rewards (such as promotions) that have been made in anticipation of its success. Another reason is that no alternative strategy has been developed, or at least none that has sufficient official sanction to be pressed by at least one stakeholder.
The failure to evolve a fresh strategy is disguised exactly by the claim that the strategy in place is not failing because it is flawed but because it is not being implemented. That sounds like what is happening with the counter-terrorism strategy. The National Action Plan is not working, not because it is not being implemented fully, but because it does not meet the needs of the situation. The extension of the term for the military courts is part of this, and will probably not help the goals being set.
As a matter of fact, the goals are not clear, and this silence may well be the result of a lack of clarity on the part of the stakeholders, or even a disagreement among them. Are the military courts supposed to end terror? The civilian administration is ducking the question, giving its main reason as the military’s wish; the latter does not have an alternative strategy to propose. Are the military courts supposed to provide a breathing space so that there can be capacity built in the civilian judiciary? This is not even being debated at the moment. The civil government seems to want the military to do what it cannot do itself. The military seems to think this another testimony to its superiority, and thus to its right to rule.
However, neither seems to have contemplated a possible result: the infection of the military by militancy. While the military is deliberately insulated from society, increased interaction is inevitable, while recruitment is from it. Militants may find the courts a pathway into the military. This is especially the case where belief is involved. If that happens on a wider scale than has already happened, the military might find that the extension in jurisdiction might not mean rule as a whole.
It is not to be ignored that military institutions are conservative in nature, and strongly religious. It is perhaps no coincidence that in India the BJP is well represented in the armed forces, while in the USA evangelicalism has found strong support in the military (just as it did in the Victorian British Army). The Pakistani military moved towards religious fundamentalism in the Zia years, and while it has been taken out, it might find itself taken back by the legal system it wants to dominate.