Should the military fight crime and dispense justice?

In the middle of April 2015, the head of the Sindh Rangers whizzed through those areas in Karachi which have been under the spotlight for all the wrong reasons — Azizabad, Kati Pahari, Lyari. It was yet another manifestation of an already known phenomenon: maintaining the city’s law and order is no longer in civilian hands. Some may argue it never has been for more than two decades.

The way the paramilitary rangers, however, go about raiding the offices of political parties without search warrants, detaining alleged criminals without following due process and, sometimes, killing them in alleged encounters is worrying to say the least. It shows that either the rangers are not trained for maintaining law and order, or they consider things such as due process and legal procedures as hindrances to their operations — or perhaps both. In any case, many opinion-makers project such harsh, and quite often illegal, measures as the only solution to the grave law and order problems Karachi has been facing since long. A similar kind of inevitability also marks the debate on the recently set up military courts.

Why do some parts of intelligentsia and the media believe that paramilitary and military organisations are better at maintaining law and order and imparting justice? If the rangers do not know – or follow – the procedural and legal aspects of civilian policing, and if army officers serving in military courts are not grounded in the nuances of legal processes, their operations are highly likely to involve wrong application of authority, sometimes resulting in grievous, and irredeemable, injury to individuals and even communities. What, if any, are the checks and balances against the possibility of such misuse of authority?

The Herald's forum – Trial and Terror: Should the military fight crime and dispense justice? – took up these questions at the Karachi Press Club on April 29, 2015. Moderated by broadcaster and columnist Wusat Ullah Khan, the forum included detailed deliberations by panellists Zohra Yusuf, the chairperson of the Human Rights Commission of Pakistan, Jameel Yusuf, the founder and former chief of the Citizens-Police Liaison Committee, and Salahuddin Ahmed, a senior member of the Karachi Bar Association and a legal expert with a keen interest in human rights. Here are the excerpts.

Wusat Ullah Khan. It is important for the maintenance of law and order that discrepancies and weaknesses in institutions such as police and civilian justice system are addressed. Or is it easier to deal with the problem by telling these institutions to sit on the side and outsource their functions to the military and paramilitary forces such as the rangers and the Frontier Constabulary (FC)? Some latest constitutional changes have given military officials the judicial powers of issuing judgements and awarding punishments. If this is the correct approach, then what do we need civilian courts and police for? What is the point of spending a lot of money on them? If, however, there are question marks over the way the military institutions operate when deployed on civilian assignments, then why do we keep reverting to them as the ultimate solution for all our law and order problems?

If we take Karachi as an example, we have military and paramilitary forces maintaining law and order in the city since 1989. Do we see any improvement in the situation? The same is the case with military courts which have been used before — and not just once. Are we deluding ourselves into believing that this time round they will correct the system? The irony is that military courts are not coming about due to a military takeover of power, but have been approved and set up by an elected parliament and a civilian government.

This, though, is not the first time that a civilian government is deploying military courts. It was under a civilian government in 1953 that the first military courts were set up in Pakistan in the wake of anti-Ahmedi violence. The most famous punishments meted out by those military courts were death sentences to two religious leaders — Abdus Sattar Niazi of Jamiat Ulema-e-Pakistan (JUP) and Abul Aala Maudoodi of Jamaat-e-Islami (JI).

The argument many people make in favour of the military’s involvement in policing and judicial affairs is that these cannot be effectively handled without enforcing the writ of the state through the strongest of measures, even when those measures infringe the citizens’ fundamental human rights. Their point of view goes like this: terrorism is gaining momentum, and in order to curb it, the government requires steps that prioritise restoration of peace over anything else.

I’ll start by asking Salahuddin Ahmed to explain the main questions that arise from the involvement of military and paramilitary forces in maintaining law and order and dispensing justice.

Salahuddin Ahmed. The very imposition of martial laws has been endorsed by civilians, and civilian governments have set up military courts with the same enthusiasm as martial law governments have. The government of Zulfikar Ali Bhutto set up military courts in 1977 to hear cases of those agitating from the platform of the Pakistan National Alliance (PNA). The Sindh High Court, however, ruled the military courts did not enjoy legitimacy as a judicial forum. In spite of that ruling, these courts were back again as soon as Ziaul Haq imposed military rule. When the setting up of these courts was challenged again, the Balochistan High Court struck them down. The court said the doctrine of necessity might have justified the martial law, but nothing should allow a parallel judicial system to come into existence. In light of this verdict, the Zia regime had to concede some ground to the superior judiciary, including the power to hear appeals against military court verdicts. These concessions were part of a negotiated transaction between the courts and military government.

Then in 1998, Nawaz Sharif’s government promulgated the Anti-Terrorism Act (ATA). Once military courts were set up under this law, the Supreme Court ruled against them on the basis that the Constitution has no room for an alternate judiciary. Sensing that the case law has always rejected military courts, this time the government has provided additional protection to them by introducing the 21st Amendment in the Constitution. The parliamentary approval of the amendment is aimed at saving the military courts from a judicial knockout.

Whether our Constitution has a fundamental structure is the other issue the amendment gives rise to. All kinds of interesting legal questions stem from this. If there is a fundamental structure to the Constitution, then does it permit military courts? Should superior courts interfere with the unanimous passage of the amendment by Parliament? Should courts limit Parliament’s power to amend the Constitution?

There is also a popular saying, “Let forms of government fools contest, who governs best is best.” That kind of pragmatic approach also exists in the country. As a society, therefore, we shall have to decide if judicial work falls within the ambit of the military’s responsibilities. Or should we follow the constitutional and sociopolitical theories of governance which say it is not the military’s responsibility to perform judicial and policing functions?

Khan. If we look at the judiciary’s decisions right from 1953, the judges have always endorsed not just military courts but also military dictatorships. So, why do you think the judiciary will now behave differently?

Ahmed. Our courts have almost always considered themselves to be subservient to the military. Judicial decisions against military rule surface only after a dictator has left. All the decisions against Pervez Musharraf’s rule are coming out after he is no longer in power. The decision in the Asma Jillani case against Yahya Khan’s military government, too, came after Yahya’s rule had already ended.

Individual judges, however, have tried to introduce measures against the encroachment of civilian turf by the military. For example, in the Nusrat Bhutto case, Zia’s takeover was condoned, but after that the high courts said the military regime could not try civilians in military courts. Chief Justice Iftikhar Muhammad Chaudhry’s decision on a petition by the Sindh High Court Bar Association against the imposition of emergency rule by Pervez Musharraf in 2007 became possible only because there was public resentment over prolonged military rule. But when the superior judiciary sees the army, civilian institutions and a majority of the media on the same page, then at the end of the day, they are just 17 old men.

Khan. Why are civilian governments lacking the ability to fulfil the duties assigned to them? Why don’t civilian setups want to take responsibility? Or are there some overt or covert pressures that they cannot withstand?

Jameel Yusuf. I am not sure how many of you know that the first priority of Quaid-e-Azam Muhammad Ali Jinnah was to introduce a police commissioner system in Karachi in 1948. The population of the city at the time was only 300,000. The Quaid was highly concerned that this population would become too much to handle under a police system inherited from the colonial masters. But for 53 years, the bureaucracy hid the assembly resolution passed for the introduction of the new system before I retrieved it in 2000. That is where the problem started. There have been numerous commission reports on how to improve things but few of them were made public and none of them implemented. That is how we have been treating the rule of law since day one.

Now, if you look at the Anti-Terrorism Act, how much it has been misused? It is ridiculous that Nawaz Sharif was tried for hijacking an aeroplane under this act and Pervez Musharraf is being tried for the Lal Masjid raid under it. If the former president of the country can be tried as an alleged terrorist for trying to overcome terrorism, then who is going to take action? When these serious laws are misused, the judiciary keeps quiet. Why can’t they throw these cases out, saying they are not terrorism cases?

The Taliban are like an invading army. They can only be tackled by an army. Civilian police is not trained as a combat force to take on the kind of threat that the Taliban pose. In places such as Sri Lanka, India, Somalia and Ireland, the army was on the front lines to fight against internal threats.

The only good thing that Musharraf did was that he introduced a new police system under the Police Order 2002. It followed a Japanese model in which civil society was going to be a part of managing the police and law enforcement — lawyers, judges, journalists and citizens were to play a part in ensuring accountability and transparency in the working of police.

Khan. But why was it not implemented?

Jameel Yusuf. Because the military dictator started aspiring to be a democratic dictator. Is there such a thing as a democratic dictator? The politicians around Musharraf convinced him that this could happen.

Khan. We often hear that Ayub Khan was good, but the people surrounding him were bad; that Yahya Khan was mislead by Zulfikar Ali Bhutto; that Rafi Raza corrupted Bhutto and so on. That is what has always gone around.

Jameel Yusuf. I am not saying Musharraf was a good man. All I am saying is that he did one decent thing and, that too, he destroyed with his own hands. Perhaps sometimes it takes a strong man to put things right. In Japan, it was General MacArthur, an American commander, who introduced police reforms.

In 1999, I invited a Colombian delegation to assess the situation in Karachi and suggest remedies. Even though 16 years have passed, every line in the report of that delegation appears still relevant. In 2005, the Herald called Karachi “the city of death”. The number of killings that year was 1,742. Since then, the situation has only worsened. In 2012, there were 2,174 killings and in 2013, there were 2,197.

There is no disputing the fact that the rangers are supposed to be a border force. There is also no disputing that an army or a paramilitary force cannot do urban policing. But what do you do when you have destroyed your local policing? There is something seriously wrong with a nation that praises extrajudicial killings, but look at how the whole of Pakistan celebrates them, because they are seen as the only sign of the rule of law.

Shall I tell you why the paramilitary rangers first moved into Karachi? Because the then civilian government invited them to restore peace on the campuses of Karachi University and NED University. There were daily gunfights at these campuses and there were murders. There was a war going on between the student groups affiliated with the Pakistan Peoples Party (PPP), Muttahida Qaumi Movement (MQM) and JI. They were kidnapping their opponents and torturing them. The rangers were brought in to quell all that violence. Since then, they have been on an assignment that gets an extension every few months.

These are bad times. Foreign investment is not coming into the country and travel advisory for Pakistan is the worst in years, but tell me one thing that has been done to improve policing. Recently, [the Sindh government] changed the head of the provincial police because he allegedly did not endorse the procurement of armoured vehicles which he thought were priced too high. Is there any job protection for a police officer who wants to set things right? Uncertainty among the police and its inaction suit the politicians. Who is going to clean up the mess, resulting in hundreds of murders in Karachi every month? The police cannot, because they don’t have the capacity.

Now if we are talking of the constitutionality of the military courts, we must keep in mind that there have always been military courts within the military. If they can try military men, then why can’t they try civilians? Also, military courts are not going to stay forever. They are being set up for only two years. Their second important feature is that every case is first vetted by the provincial government and then by the federal government before it is finally sent to a military court. So, there is a filtering process [in place].

Khan. Instead of viewing the problem of law and order from a human rights perspective and trying to address it through judicial and constitutional ways, we have become accustomed to seeing it from a security state lens. So, why do we protest when security forces use power to enforce order?

Zohra Yusuf. In 2013, when the previous civilian government completed its term, we all celebrated democracy. We thought we had reached a certain level of maturity in our politics and that there will be no going back to the military rule. That, certainly, was not enough. In the last year or so, we have seen the military mindset gradually creeping in. It seems we are living under a shadow military government. The civilian government and Parliament have really betrayed the trust that the people gave them by electing them. The civilian government did not resist the pressure it was put under. Parliament, too, failed to withstand that pressure. As a result, the military courts have been set up through a parliamentary consensus. The promulgation of the Protection of Pakistan Act and the continuation of the rangers’ operations in Karachi also have the backing of politicians who have failed to withstand pressure from the military.

There is another problem that has persisted with successive governments: they have always looked for short-term solutions. When, for instance, the attack on the Army Public School in Peshawar happened, our immediate knee-jerk response was to remove the moratorium on the death penalty. Such harsh measures are no solution. We have had anti-terrorism courts since 1997. As you said, the rangers have been in Karachi since 1989. Has law and order improved? It has not.

On the other hand, excesses by the security forces have increased. Last year, we recorded about 360 cases of extrajudicial killings (we call them extrajudicial killings; the police call them encounter killings). Some days later, however, the Karachi police chief said his force had killed 800 people in encounters. Earlier, the police always disputed our figures for extrajudicial killings, accusing us of inflating the numbers. Now the police figure is higher than our figure. There was denial before, and there is not just acceptance, but pride in such killings now.

Then there is the issue of lack of transparency. We hear from government sources and the rangers that thousands of people have been picked up. Who has been picked up? If some people have been released, why were they released? These are big questions. Similarly, there are no details available about the six people sentenced to death by the military courts. They may have carried out acts of terrorism, but there has to be transparency in their trial.

Khan. What is to be done? Is there any prescription that can cure us?

Zohra Yusuf. The question of finding a cure goes back to the same issue: we are very impatient. If one medicine does not work, we rush to experiment with another, even if it is harmful. The situation is bad and it may get worse but we need to be patient with civilian institutions even if they are faulty. And we need to strengthen these institutions. The police need to be strengthened. They need to be reformed. The judiciary needs protection because judgements are given in an environment of fear.

Khan. Do you think things will improve with the introduction of military in the civilian sphere?

Jameel Yusuf. The situation has already improved. A drop [in the crime rate] has taken place. We are breaking the backbone of the Taliban. I also don’t understand on what basis people argue that hangings should not take place. We have reached this situation because we had placed a moratorium on death sentences in the first place. The terrorists killed 35,000 of our people, but we don’t want them to be hanged?

The government tells us the European Union (EU) will halt aid and stop trading with us. The irony is that the EU continues to trade with Saudi Arabia and the United Arab Emirates even when these countries carry out death sentences on a regular basis. There is a Supreme Court judgement from 1992 which states that the President of Pakistan does not have the power to pardon a murderer. In light of that judgement, presidential pardon for prisoners on death row is illegal. So should be the moratorium on carrying out death sentences.

Khan. Are you suggesting that the situation will improve with hangings?

Jameel Yusuf. Until there is punishment, the problem will persist.

Ahmed. There are two ways of approaching the issue: an idealist way and a pragmatist standpoint. What Jameel Yusuf is saying is to take a pragmatic approach and not a theoretical one. From the pragmatic point of view, we need to analyse which institution is better for which purpose. For example, if someone says to me that the army’s athletes perform best in all national games, I will assume that the chief of the sports board should be a general. There is a track record in front of you to gauge from. In the same way, we see the military hospitals run better than other government hospitals. It should then mean that health ministry be given to the army. In the 1990s someone had a great idea for resolving the problem of power theft and low recovery of electricity bills by delegating these jobs to the army as well. The bill collection increased and power theft decreased. That will be a powerful argument to transfer the energy sector to the army.

When, however, it comes to the war against terror, the army has been fighting it since 2001 — mostly without success. The Baloch insurgency has been going on for 50 years and the army has been trying to tackle it all this time unsuccessfully. Whether it is the Frontier Corps, the paramilitary forces or the army directly, they have been unsuccessful in putting an end to that insurgency. With reference to the defence of our borders, our geographical area is two-thirds of what it used to be [before 1971]. When it comes to external and internal defences, therefore, the army has not been successful. Keeping idealism aside, even pragmatically it makes no sense to hand these functions to the army.

We have always looked for a quick fix. We could not solve the problem of terrorism in the 1990s so we introduced the Anti-Terrorism Act. The idea was that terrorism will miraculously disappear with the act, but that has not happened. We will have to bring police reforms and introduce witness protection. If you read the Supreme Court judgement in the Mehram Ali case, it mentions the need for all of this. Our police keep lamenting about not having the permission to track cell phone calls. Until recently, they did not have the equipment for that. Yet we expect performance from them.

As an office-bearer of the Karachi Bar Association, I keep meeting judges who deal with sensitive cases and are getting threats. An army man, surrounded by an army unit, holding trial in some military area and living in a garrison will definitely have all the wherewithal to issue quick verdicts and award strong punishments which another judge travelling long distances from his home to the courtroom in a small unguarded car does not have.

Until we strengthen civilian institutions, how can we expect results from them? Policing and judicial duties are not the army’s jobs and when the army is forced to do things which are beyond its scope, then its primary function suffers.

Guest. Why are the rangers still present at Karachi University? As a student, I have witnessed what they mainly do: moral policing.

Jameel Yusuf. They should not be there. If they were brought in 26 years ago, they should have caught all the people involved in violence who, in turn, should have been tried and sentenced by now. The Sindh government is notifying an extension in their stay every year.

Khan. Don’t you think the rangers, too, have developed an interest in staying in Karachi?

Jameel Yusuf. Why would they? The government is paying for their stay and can discontinue it if they want. But that can happen only if the police are strengthened, which is not happening because the status quo is suiting the politicians. We need to make the police a crack force to combat crime. The joke is that we went into the war against terrorism without a national counter-terrorism authority. Has civil society asked the government as to why this has been the case? Do you think an area police station head will be able to combat terrorism? Please understand that this is a task to be done by a specialised force.

Guest. Under Ziaul Haq’s martial law, there was no recruitment to the Karachi police for a good nine years. The rumour is that the army did not allow any police enlistment between 1977 and 1985. How do you respond to that?

Jameel Yusuf. What do you mean by not allowing enlistment? There were at least 1,000 blank appointment letters delivered to a political party’s office [during Ziaul Haq’s martial law]. People recruited through those letters then provided intelligence to the party about the workings of law enforcement agencies rather than doing policing duties. Do you know how deputy superintendents of police were selected recently? Not one candidate passed the exam, but they all got selected. What quality force will you get from such recruitment and selection?

Guest. If a person is picked up by the rangers and then tortured to make a confession, how can he prove that he was made to confess under duress?

Ahmed. That is one of the major reasons why rights groups demand that the policing functions be carried out by the police. The police know that they can be tried in court and lose their uniforms if they inflict torture on the accused to extract a confession. Apart from the Sarfaraz Shah murder case a couple of years ago, there is no scrutiny or accountability for the rangers. The military courts have a similar problem of accountability. No one, not even the families of the convicts, know the reasoning behind their sentencing. What was the crime? To what extent was it proven or disproven? When you are sentencing someone to death, the facts have to be known by the public and the judicial process has to be followed. I, for one, am not prepared to take the word of some general or colonel that the sentencing happened after the crime was solidly proven. Jameel Yusuf is right when he says that politicians are involved in rising crime in Karachi. At the same time, however, we should not forget that agencies affiliated with armed forces have been responsible for breeding terror groups. And this is not a secret. In such a scenario, investing blind faith in military courts is foolish.

Guest. In an ideal system, what are the checks and balances on a military to ensure transparency and accountability?

Ahmed: In the United States, military cannot try any American civilians. There were two cases after 9/11 and, in both, a judge ruled that the American citizens were entitled to due process of law, regardless of what the military did to non-Americans. Our courts don’t have that kind of power to make armed forces accountable.