Many things have happened since the announcement on December 17, 2014 in Peshawar of the establishment of military courts. We watched the political leadership come together in marathon sessions to devise an National Action Plan, where all the parties agreed to empower the military to clean up and deliver speedy justice to terrorists. We saw six terrorists, out of 3,000, executed after eight years of sitting in our prisons before the process screeched to a halt with cries from human rights organizations, the European Union and the retired judges in Pakistan decrying the brutality of executions.

Meanwhile, in Islamabad, Lal Masjid began to dominate the news again, as Abdul Aziz sprang into action to defend the terrorists providing reason and rationale for their continued attacks. He went, as far as to threaten if anything were to happen to him, suicide bombers would be unleashed in the country. A spokesman of the masjid later said that the bombers had already been given targets and told to attack at will, if Abdul Aziz was arrested, as 8,000 graduates of the institution returned to protect their leader.

In Lahore, Malik Ishaq, the leader of Lashkar-e-Jhangvi, was released from prison, then detained again, then another judicial orderedhim released again.

If this wasn’t enough of an indictment against the government’s ineffectiveness against terrorism, the politicians stepped forward, with the support of “legal experts,” to decry the establishment of military tribunals to dispense justice to terrorists. One well-known politician quipped during his speech, “Miansahab, we should be concerned that we don’t end up before the military courts.”

This all happened in the background of the Nawaz Sharif government’s on-going internal negotiations on how to implement the consensus National Action Plan to rid the nation of terrorism, and decide if, and how, military courts were going to be part of the solution.

And in all of this, the government and its diplomats had the time to decry the portrayal of Pakistan as a terrorist haven in the fictional HBO drama Homeland. How much more can you be disconnected from your own country to not recognize the truth in that portrayal?

On Friday evening, the political leadership decided to implement military courts through an amendment to the Constitution of Pakistan and the Army Act of 1952.But the conditions have left a great deal of concern in this writer’s mind, which I am sure you all share by the time you are done reading this article.

Why military courts are a part of the solution

I could spend multiple paragraphs talking about the Nuremberg Trials, the International Military Tribunal established after World War II, which were responsible for sentencing 200 German war crimes defendants and 1,600 collaborators, financiers, supporters and apologists tried under traditional channels of military justice.

I could talk about the Geneva Convention and the Universal Declaration on Human Rights, which emerged from this tribunal, or that fact that this became the model for the tribunal in Japan, the Eichmann trial or The Hague.

No, that would all be lost on most because they don’t know the history of the horrific crimes that took place in these places that required military courts to take the place of civilian courts.

Sadly, most Pakistanis live inside a bubble of information that comes from either the television with their nightly chatterboxes sputtering about the “rule of law” and constitutional requirements or from “respected” columnists who make a living changing their positions on key issues with the breeze of the day. Many of these sit on the fence line of supporting the terrorists, as we saw last year on the live broadcast of a popular channel, where the News Director made promises to a TTP spokesperson in return for the protection of his journalists’ lives, or last month, when the same anchor said on one show that the media shouldn’t let these people on the air, only to call Abdul Aziz for comment during his own show.

I’m not going to imply that the courts have been effective, because they haven’t been. Parents file cases and their children end up attending hearings long after their parents have passed away. 15 years in the average for any cases that is filed in Pakistan to reach any decision, and that isn’t counting the appeals process.

Let me give you a few examples from recent history.

The Asghar Khan case, which was a landmark case for corruption and election rigging, was filed in 1996 and was finally decided in November 2012. That’s 16 years, my friends. And can someone tell me what happened to the parties involved in this massive case of election rigging? That’s right… nothing.

Mumtaz Qadri, the assassin of Governor Punjab SalmaanTaseer in January 2011, confessed to the crime. Mumtaz Qadri is sitting in prison with immense power to influence others to kill for him.Much like a mafia don, continues to maintain the full support of the religious leaders who believe he did a great justice for Pakistan, and has a masjid named after him in Islamabad. Let’s not forget when he was presented in court, lawyers, yes lawyers, showered him with flower petals and the judge who sentenced him to death, well, he had to flee the country because of death threats.Would someone like to refresh my memory on the human rights arguments or the rule of law ones here? Should a lawyer’s right to practice law not be usurped when he supports a self-confessed murderer? Weren’t lawyers abused for supporting Musharraf against Iftikhar Chaudhry, with some having their bar memberships suspended, if not revoked?

Lastly, Lal Masjid’s famous burqaedbadboy, Abdul Aziz, who tried to escape the masjid before the military operation in 2007, who in the past few months has declared his allegiance to ISIS and threatened to unleash suicide bombers all-over Pakistan if he is arrested for supporting terrorist organizations. This self-proclaimed badboy was freed by a Supreme Court judicial commission, headed by Chief Justice Iftikhar Chaudhry, and the state paid to rebuild the al-Qaeda and extremist haven.

To imply that the judiciary of Pakistan has been ineffective would be an understatement, but I’ll quantify it with a statistic. Between 1990 and 2009, the judiciary of Pakistan has achieved an amazing 74% acquittal rate in terrorism related cases, 3 out of 4 terrorists are freed by the Pakistani courts for those keeping score at home. 

Would the human rights organizations, European Union and liberal intelligentsia please explain these massive failures in the deliverance of justice in Pakistan? And please save your insufficient evidence, lack of witness protection and fear-mongering arguments for your students. It is the job of the judiciary to deliver justice, no matter the impediments.

However, the judiciary has been quite effective with theirsuomoto notices for sugar prices, increases in petrol prices, and hanging laundry on the Supreme Court sign, which makes me wonder why they are absolutely silent about the Peshawar massacre, the on-going Shia genocide, the burning of Christians and election rigging.

When this is the track record of the judiciary of Pakistan in deciding terrorism related cases, is it any wonder why the people want the establishment of military courts?

Cowardice is acceptable, but not in a judicial robe.

The liberal fear of military courts

I do understand the fear of the liberal intelligentsia when it comes to military justice. I don’t accept it, but I understand it.

Those who are in the human rights organizations and the European Union fear that Pakistan will become a killing field with bodies being strung up without proper judicial processes, no media monitoring and the secrecy of the military tribunals. I’d like to ask a simple question of those who are proposing these arguments – were the victims of the terrorists given these protections before they were executed in cold-blood?

Some will recite chapter and verse from Zia’s military courts, where politicians and journalists where beaten and silenced by the most ruthless military dictator in Pakistan’s history. People seem to forget is that that was a military tribunal constructed under a military dictator, not a democratic government.And just out of curiosity, which religious party was their biggest cheerleader? Hasthe liberal intelligentsia demanded that Zia’s body be pulled from the grave and hanged as a violator of Article 6, along with his collaborators, much like the British did with Oliver Cromwell, Robert Blake, John Bradshaw and Henry Ireton in 1661? I think not.

I will go one step further, into more recent history in the 1990s, when Benazir Bhutto was Prime Minister of Pakistan and Karachi underwent Operation Cleanup, which unleashed the full strength of the Pakistan Army on the largest city of Pakistan to do one thing – chase down and eliminate the MQM. There were no military courts then, just a bloodthirsty former General, but the executions were fast and plenty, as some 15,000 lost their lives without knowing the charges they faced. Are you going to defend those brutal executions carried out under a civilian, democratically elected government because of your hatred of the MQM? Where are your liberal cries for human rights and judicial commissions for them?

They will tell us the victims of terrorism are the people of Pakistan and that the terrorists should be accountable to the people through the civilian judiciary. This is not what the people of Pakistan want, the human rights campaigners are telling us, but they fail to listen to the people of Pakistan screaming for justice through the military because the civilian courts have failed to deliver.

The irony, when we talk about military courts, is that the liberal intelligentsia and the terrorist, the al-Qaeda, LeJ, SSP, JeM, Lal Masjid and TTP types, have one thing in common. They both believe that military courts are the wrong way to stop terrorism in Pakistan. They both agree on that, share a commonality of thought, if you will. Maulana Radio, Malik Ishaq, Abdul Aziz, Munawar Hassan and SirajulHaq would agree with the human rights organizations, the European Union and the politicians in all their arguments.

Let that simmer with you for a moment.

What the politicians are afraid of

From AitzazAhsan and Imran Khan to AsifZardari and AltafHussain, every politician is afraid of the establishment of military courts, and I know why. It comes down to a very simple law that was enacted in 1997 – the Anti-Terrorism Act – which if properly implemented would not only eliminate terrorism and extremism from Pakistan, but most of the political parties and their leadership. Nawaz Sharif has already heard the slam of the prison door under this Act for attempting to hijack the Chief of Army Staff’s plane loaded with civilians as it returned from Sri Lanka.

Have you ever read the Act yourself? Have you understood the definition of terrorism and what constitutes acts of terror under that law? If you haven’t you are missing a great piece of legislation that inspired the creation of the anti-terrorism courts in Pakistan, which also raised the anger of the liberal intelligentsia, even though they were headed by judges, not military officers.

Yes, this isn’t our first dance. In 1997, the arguments were more flaccid. How can you decide a case within seven days? What do you mean an appeal will be decided within weeks or months and not years? This forced the anti-terrorism courts to change their mandate and extend the allotted time for cases and thus, justice slowed to a crawl and people rotted in prison cells never attending a hearing.

This is why the politicians don’t want the Constitution amended to allow for the formation of military courts.They know they will be caught in the net, but they forget that by not amending the Constitution of Pakistan, the required legal cover for the courts will not exist, making every judgment contestable in the same civilian courts that have failed to deliver justice.

They have provided guarantees that no politician will be hauled into the military courts by requiring the approval of the federal government before a trial process can be initiated in the military courts. They have guaranteed the religious parties madrasahs and masjids will be excluded from military jurisdiction. They have further closed the potential scope by adding the words “hardened terrorists” to any legislation or amendment, proposed in the Parliament. This statement comes days after the media reported that only “jet-black terrorists” would be handed over to the military courts. And here is where the wicket gets sticky.

Will members of the proscribed/banned jihadi organizations, operating under new names, be considered “hardened terrorists”? Would terrorist supporters, like Abdul Aziz, be considered hardened terrorists? How about terrorist financiers? What about terrorist collaborators that provide shelter, arms and material support? What about the religious parties, like Jamaat Islami and JUI-F, that refuse to condemn the TTP and extremist/jihadi organizations and Munawar Hassan who decreed that our soldiers are not martyrs, but the terrorists are?

It looks like a “good” and “bad” Taliban is a new language, doesn’t it?

And they want another caveat added to the military courts – any sentence imposed by the military courts would be appealed in the Supreme Court of Pakistan. I have yet to hear of any uniformed soldier or officer being able to appeal a decision of the military courts in a civilian court, which makes me more suspicious of the intentions and motivations behind this implementation of the military courts.

This is all smoke and mirror from a government that wants to look like they are doing something but actually continuing their “do nothing, look busy” policy.

If the government were serious about combatting terrorism, they would fully implement the Anti-Terrorism Act of 1997 under the military court’s jurisdiction, which would solve many of the problems. They would implement the Pakistan Protection Ordinance in letter and spirit under the military’s jurisdiction. They would make anyone who wages campaigns of terror, individually or collectively, against Pakistanis subject to the military courts. They would tell the politicians and religious parties that they either stand with Pakistan or they stand with the terrorists.

This is not a time to serve political interests. This is not a time to protect the havens that are used against the state and its citizens. This is not a time for the people to be put against the wall for fear of retaliations. The retaliations will come with or without action. We have seen that.

Allama Iqbal said,“Nations are born in the hearts of poets, they prosper and die in the hands of politicians.”

This is will be the most important battle for Pakistan. In 1947, our elders fought to create the country that Allama Iqbal dreamed of. In 1965, our grandparents fought to keep India from taking Pakistan from them. In 2015, we must stand together to free Pakistan for our future generations.

They will not forgive us if we stutter. They will not forgive us if we concede without a fight. They will not forgive us.

Khalid Muhammad is an entrepreneur, published novelist, defense analyst and political strategist.