Should military men be tried in civilian courts?

Everything I did, all my actions, all of the problems I had, I dedicate to God and to Chile because I kept Chile from becoming communist,’ dictator Augusto Pinochet once said. God and Chile thought otherwise, and though the general had armoured himself with an impressive range of immunities – from senatorial to military – he was stripped of each, dying moments before the walls closed in.

Pakistan, too, has little love for the idea of immunity. Article 248 of the Constitution protects prime ministers, presidents and ministers from prosecution — as long as they sit in office. As Mr Farooq Naek well knows, dusting off his briefcase for the countless cases swirling around sordid former President Asif Ali Zardari, immunity is as long as one’s term.

The men in uniform have something of the same arrangement. In the Islamic Republic, it’s harder to try serving cadets than former generalissimos. Even the latter are a break from the past and not a clean one: Asghar Khan vs. Mirza Aslam Beg is a testament to the fact that, over the [very, very] long run, justice cannot be denied.

General Beg was tried for crimes committed as army chief; the Lady Macbeth-like Asad Durrani as Inter-Services Intelligence (ISI) boss. What they did was both vulgar and stupid. The generals bled a bank of millions of rupees and pumped them in as ‘campaign funds’ for the Right’s usual suspects. The aim was to unseat former prime minister Benazir Bhutto, but the generals ended up setting an altogether different sort of precedent.

Sixteen years after the offence, the Supreme Court held both of them liable, and said that Durrani’s plea that he was: Just Following Orders i.e. the Nuremberg Defence carried no weight. The press hailed this as historic. Civilian courts had tried the highest-ranking (albeit retired) marshals in the land and held against them. But it’s hard to care, since both go about their lives as free men today.

It is this disconnect – between de facto and de jure – between the law on paper and the law in application, that confuses the question: Can military men be tried in civilian courts for acts they commit in their capacity as officers? And does it even matter, considering the retired ones are prosecuted but not punished? Or, making matters worse, that the retired ones invoke military law for crimes committed in uniform, and escape the courts? The generals implicated in embezzling around a billion from the National Logistics Cell certainly thought so.

In theory, military personnel fall under the Pakistan Army Act of 1952, but that leaves no bar for the civilians trying them under the same law. At least, the civilians say so. As of last month, both judges and generals have butted horns over missing persons in Malakand. The courts held the army responsible for disappearances in December 2013; the government has since stonewalled the judges, arguing that military men can only be tried by, well, military men.

The courts are less than enthused by this offering, and have begun interpreting civil-military jurisdictions in ways near-revolutionary. For all its faults, it is a tribute to Pakistan’s Judiciary 2.0 that it seldom feels hesitant storming into areas where once angels feared to tread. When the Malakand deputy commissioner tried to appease the bench, saying the case was closed to an internal inquiry, Justice Jawwad S Khawaja stated what should have been obvious, that the Constitution meant civil courts supersede military ones in matters of concurrent jurisdiction.“This is not a matter of discretion, but a law,” declared the judge, before going as far as to consider registering a First Information Report against soldiers so accused.

Whatever the answer, the status quo is untenable. It is up to the judiciary – and no one else – to decide whether quasi-military matters are to be left to the military or if civilian supremacy should be made to stick, especially when the rights of civilians come into play. In theory and under law, it can be.

But in practice, civilian sway has been long sacrificed at the altar of national security. A stronger argument is the disgraced Durrani’s — that soldiers follow their superiors’ commands and are beholden to military law by so doing. Behfehl est behfehl: German for ‘orders are orders’.

But we all know how the Nuremberg Defence worked out.