The two opposing positions can be laid out, in broad strokes, as follows: those who oppose military courts say they create a secretive, parallel judicial system — one that does not allow for due process; those in favour point out that the existing judicial system has failed to mete out justice in terrorism cases — the hand-wringing liberals are living in a fantasy world while terrorists get away with mass murder. What is most striking about the latter position – I speak as someone who holds the former position – is what appears at first glance to be an extraordinary confidence in both military courts and law enforcement agencies.
One of the key characteristics of the military courts is their exceptionally high rate of issuing ‘guilty’ verdicts — according to a June 2016 report by the International Commission of Jurists (ICJ), of the 105 people brought before the military courts since they were empowered to try civilians in terrorism-related cases, 81 have been found guilty, 77 of them sentenced to death.
The courts haven’t disclosed information on the remaining 24, so it is impossible to know if they have been acquitted or are still detained. These figures, of course, offer a direct contrast to the civilian courts criticised for their high rates of acquittal in terrorism cases — and that alone is enough to make some people consider the military courts a ‘success’. But a great many of those acquittals by civilian courts had nothing to do with ‘external forces’ exerting influence on witnesses and judges — but rather with flaws in investigations and prosecutions. Have those flaws all miraculously disappeared with the transfer of jurisdiction to military courts?
It hardly needs mentioning that in cases where death penalty is going to be used, the burden of proving guilt should be extremely high. Do those who support military courts really believe that the entire chain of investigation and prosecution is so stellar that in nearly 80 per cent of the cases, those who come before the courts are guilty beyond reasonable doubt, and deserving of death penalty? Is the possibility of corrupt practices, scapegoating, incompetence, human error, false confessions under torture, inadequate legal defence not real enough to consider? Shouldn’t it matter if the guilty are bit-players or masterminds? In how many cases did a ‘guilty’ verdict end an investigation which had only identified someone far down the chain of command rather than those calling the shots? Do we judge effectiveness by the number of prisoners on death row or the depth and breadth of investigations into the crimes they were accused of?
The more you think about the level of confidence and trust required to believe that all those 77 on death row were proven guilty beyond reasonable doubt, the more you start to wonder if those in favour of military courts are really committed to justice — or to revenge. Too much blood has been spilled in Pakistan by those who have never been made to answer for their crimes. At a certain point did we lose faith in the idea of justice, and decide to answer blood for blood instead? If we can’t catch the kingpins, let us at least hang the small fry? If sometimes those who were hanged weren’t guilty of the crime — well, they wouldn’t have been accused if they hadn’t done something wrong, would they? After all, the likes of you and I aren’t going to find ourselves in the dock on terrorism charges, are we? And surely anything – anything – is better than watching atrocity after atrocity and seeing so few ever held accountable?
It is hard to be human and not understand that last sentiment. And this is precisely why the most important part of the 21st Amendment in the Constitution was the commitment to overhaul the criminal justice system and make it fit for the purpose of trying terrorists by January 2017, at which point the special judicial powers of the military are to lapse. But where are any signs of this overhaul? It is well worth turning our attention away from the military courts and their opaque practices to start demanding that our elected leaders show more commitment to the civilian institutions without which a state cannot effectively serve its citizens.
This article was published as part of a special editorial project '2016 In Broad Strokes' for the Herald's Annual 2017 issue. To read more subscribe to the Herald in print.
The writer is a novelist whose seventh book, Home Fire, will be published in 2017.
The artist is a graduate of the National College of Arts, Lahore.