On Saturday, the 3rd of January 2015, the National Assembly of Pakistan initiated a debate on the 21st Amendment to the Constitution, a measure aimed at providing legal cover for the establishment of military courts to deal with terrorism related offences. In a context where the dominant narrative in Pakistan is increasingly revolving around an uncritical acceptance of, and endorsement for, the actions of the military, it must be recognized that by voluntarily agreeing to establish these courts, Parliament is essentially institutionalizing yet more military control over politics in Pakistan, rolling back much of the progress that had been made since the ouster of General Musharraf in 2008. All the proposed checks and balances trumpeted by the government – the idea that the courts will only operate for two years, or that they will not be involved in non-terrorism related cases – do not change the fact that a democratic government has chosen to relinquish a considerable amount of space to the military. Given the history of civil-military relations in Pakistan, this is a dangerous precedent to set.
In the past two weeks, a number of justifications have been trotted out for the establishment of military courts. It has been argued that civilian courts and law enforcement agencies simply lack the capacity and the will to effectively deal with terrorism, with this being reflected in their inability to successfully investigate and prosecute many of the cases brought before them. It has also been suggested that these military courts will be different from those that have come before them by virtue of the fact that they will have been introduced by a democratically elected government subjecting them to continuous civilian oversight. Finally, the notion that these courts can provide ‘speedy justice’, shorn of the constraints under which civilian courts operate, has gained credence in an environment where the Peshawar tragedy has stoked increasingly strident calls for terrible retribution to be wreaked upon the Taliban and their ilk.
These arguments are flawed on multiple levels. It is imperative to understand that terrible as the events in Peshawar were, they do not represent the first major act of terror perpetrated on Pakistani soil. For the better part of three decades, this country has borne witness to a rising tide of bigotry and intolerance accompanied by sectarian violence and militancy. In this time, under both military and civilian governments, little has been done to deal with this. Rather than strengthening Pakistan’s courts and police force, or propagating a counter-narrative aimed at delegitimizing the pernicious discourse of extremism propagated by the country’s millinerian zealots, the political establishment, including the military, have been content to choose the path of expediency, preferring to tolerate any and all atrocities in the name of ‘strategic depth’. Given that tens of thousands of Pakistanis have died at the hands of terrorists in the past decade alone, why is it only now that the powers-that-be seem to have woken up to the idea that the country faces a, ‘grave and unprecedented threat’? Could nothing have been done to improve the courts before? When known terrorists first started to get acquitted, was there no realization that something was amiss? More importantly, why is that nothing continues to be done about this state of affairs? Even if it the need for military courts were to be conceded, exactly what measures is the government taking to rectify the problems with civilian courts? Assuming that military courts remain in place for just two years (remote as that possibility is), how exactly will the capacity of civilian institutions be built up in the interim? What exactly will change in two years that will equip these bodies to perform tasks that they ostensibly cannot undertake at present?
According to the text of the 21st amendment, terrorism poses a threat to the principles laid out in the Preamble to the Constitution. Given that this document deals with the provision of fundamental rights to the citizens of Pakistan, how exactly will that purpose be served by an unaccountable system of military ‘justice’? How will the independence of the judiciary, another principle enunciated in the Preamble to the Constitution, be ensured? What exactly will military courts achieve in an environment where children across the country, not just in madrassahs but also in schools and colleges, continue to be exposed to a toxic national discourse that demonizes minorities, valorizes religious war and violence, and glorifies praetorian politics? The Preamble to the Constitution also promises the people of Pakistan economic and social justice. In the presence of a predatory system of capitalist exploitation buttressed by virtually non-existent provision of public goods and services like healthcare and education, is it really surprising to find people turning to extremist ideologies that promise them change or, at the very least, a better afterlife? For all the emphasis on military solutions to Pakistan’s problems, on the battlefield and in the courts, what exactly is the strategy for addressing the root causes of extremism? You cannot bomb poverty out of existence (although you can bomb the poor), and all the military trials in the world will not undo the damage done by decades of state-sponsored ideological indoctrination.
Consider also the fact that based on what has transpired thus far, there is little to indicate a fundamental shift in how the military and political establishment conceptualizes the fight against terror. In FATA and Balochistan, force continues to be deployed without any questions being asked about who is being killed and why. People who have gone ‘missing’ around the country remain untraceable, left to the dubious mercies of the same military authorities and agencies that will preside over the proposed anti-terror courts. All the while, the JuDs and ASWJs of the world continue to operate with impunity, secure in the knowledge that their particular brand of violent extremism will always be tolerated as long as they continue to fulfill their function as strategic assets for the state.
By endorsing the demand for military courts, Pakistan’s parties have essentially given credence to the view that the country’s civilian institutions are irredeemable and incapable of being reformed for the better. Not coincidentally, this is the same argument that has been deployed by the military, and its civilian allies, when attacking democratic politics in Pakistan. Corruption, nepotism, and inefficiency have all been cited as justifications for coups and other interventions in politics, all of which have also been perpetrated at times of ‘national crisis’. In the past, the military has shown little respect for constitutional niceties and the principle of civilian supremacy. Why is there any expectation that things will be different this time? At a time when there is an urgent and pressing need for more military accountability and the development of greater civilian capacity, the opposite is happening.
The writer is an assistant professor of political science at LUMS.