I wrote this on October 22, 2015.
I wrote this on February 24, 2017.
My point is that we have an old infatuation with military courts. In the above cases, the issue was how to deal with and try captured terrorists. This time round, as on previous occasions, the government (read: the army) wants to try civilians — not terrorists but political agitators — in military courts.
Regarding the trial of terrorists, the argument was that the criminal justice system allowed terrorists to escape and mount more terror attacks. Hence, until the normal judicial process could be strengthened, special courts were required.
My argument then was that while exception creates a legal fiction, it’s an old fiction. The Romans called it iustitium (literally, standstill or suspension of law). Just war theorists talk about ‘emergency ethics,’ resorting to war-fighting strategies that could and cannot be ordinarily condoned. But it should be evident that exception denotes exactly that — exception. Exception cannot be the norm. There’s yet another legal-historical fact: measures taken in an emergency remain contentious even within the framework that relies on the extraordinariness of circumstances. Outside of that framework they would generally be considered illegal, unconstitutional, violative of rights and due process and, sometimes, downright criminal.
This should, hopefully, clarify my position on military courts, even with reference to the trial of people suspected of terrorism. Extrapolating my position from there to military courts handling political agitators should not be difficult.
Even supporters of military courts for trying terror suspects conceded, though perhaps begrudgingly, that they may not be entirely effective. Yet they seemed to believe that doing so showed state intent and that showing such intent was very important. I wasn’t convinced.
My argument was (and remains) that even in operational terms, there’s no necessary link between a state recognising a threat to itself, an internal one in this case, and concluding that the military is the only instrument that can save it. In fact, one could plausibly argue that far from being a signal of strength and resolve, the use of military courts highlights deeply entrenched structural weaknesses in the system. Equally, pulling the military into civilian affairs has to be seen within an historical context in a state that has repeatedly suffered military interventions.
Please note that so far we have discussed the idea of military courts in relation to actual hard security terms, i.e., with reference to trying captured terror suspects. But it is also a good point from where to pivot to the current issue of trying the May 9 political agitators under the Pakistan Army Act.
The situation, as it stands, is that the Supreme Court has adjourned the hearing of several petitions challenging the trial of civilians in military courts and the army’s legal wing is still in the process of completing codal formalities before formal proceedings against the 102 suspects in the army’s custody can begin.
Earlier this week, Chief Justice of Pakistan Umar Atta Bandial had hoped that the military would not begin legal proceedings against those in its custody until the court had disposed of the petitions challenging military trials of civilians. The issue is therefore sub judice.
The problem is that this problem is not just about legalities. It is also disingenuous to say that civilians were tried under the Pakistan Army Act during former prime minister Imran Khan’s government. Like all partisan arguments, it is dangerous because it seeks to select certain facts to the deliberate exclusion of a discussion on the principles.
The principle is that exception cannot be the norm. Also, that political agitators, no matter how unruly, are in no way a threat requiring trial through military courts. If they are guilty, normal courts are there to deal with them. And if, as I believe, the issue is not about legalities but power play, that is reason enough for the civilians to oppose military courts, rather than going along because of the opportunity to bludgeon Khan and his party out of existence.
Khan blundered when he made a Faustian bargain; his opponents are making the same mistake to put him down. The entire episode has rendered the army, yet again, as the dominant political player whose institutional interests demand a supine body of civilians. But the Army should not be allowed to establish its primacy in a principal-agent framework where the principal is the civilian chief executive.
It is an historical fact that the Praetorian Guard’s influence in Roman politics was because of their power to acclaim and depose emperors. Closer to our own history, the Sayyid Brothers of Brah did the same with weak and inefficient Mughal kings. It is easier for a military to influence the system from inside than to mount coups d’état. Coups raise eyebrows. They also indicate, more than a military’s strength, “its inability to get what it wants through the normal political process”.
The issue of the trial of political agitators under Pakistan Army Act will, on the surface, be decided by the SC. It will be foolish to predict how that might turn out. But in truth, what we have witnessed post-May 9 is the army’s institutional response to what it considered a major threat to its power and interests. The “decision” to try PTI supporters under the Army Act is a signal to all civilian actors and has to be seen in conjunction with what has happened to Imran Khan, the PTI and the mainstream media.
The rest is sophistry.
“The Supreme Court of Pakistan, through a majority decision, has already given a verdict on the constitutionality of military courts. To that extent, the issue, for now, is settled, even for objectors like myself. But the question of whether they were necessary still remains, not least because the decision to establish military courts creates not one but two exceptions and must therefore be constantly debated.”
I wrote this on February 24, 2017.
“The Government of Pakistan wants to revive military courts to fight terrorism. Military courts were established on January 6, 2015 and granted permission to try civilians charged with terrorism in the wake of a terrorist attack on the Army Public School in Peshawar on Dec. 16, 2014. The constitutional amendment was accepted by opposition parties as also by a majority decision of the Supreme Court of Pakistan because of a two-year sunset clause—i.e., this special arrangement will be undone after two years. On January 7 this year, the courts were packed up.”
My point is that we have an old infatuation with military courts. In the above cases, the issue was how to deal with and try captured terrorists. This time round, as on previous occasions, the government (read: the army) wants to try civilians — not terrorists but political agitators — in military courts.
Regarding the trial of terrorists, the argument was that the criminal justice system allowed terrorists to escape and mount more terror attacks. Hence, until the normal judicial process could be strengthened, special courts were required.
Khan blundered when he made a Faustian bargain; his opponents are making the same mistake to put him down.
My argument then was that while exception creates a legal fiction, it’s an old fiction. The Romans called it iustitium (literally, standstill or suspension of law). Just war theorists talk about ‘emergency ethics,’ resorting to war-fighting strategies that could and cannot be ordinarily condoned. But it should be evident that exception denotes exactly that — exception. Exception cannot be the norm. There’s yet another legal-historical fact: measures taken in an emergency remain contentious even within the framework that relies on the extraordinariness of circumstances. Outside of that framework they would generally be considered illegal, unconstitutional, violative of rights and due process and, sometimes, downright criminal.
This should, hopefully, clarify my position on military courts, even with reference to the trial of people suspected of terrorism. Extrapolating my position from there to military courts handling political agitators should not be difficult.
Even supporters of military courts for trying terror suspects conceded, though perhaps begrudgingly, that they may not be entirely effective. Yet they seemed to believe that doing so showed state intent and that showing such intent was very important. I wasn’t convinced.
My argument was (and remains) that even in operational terms, there’s no necessary link between a state recognising a threat to itself, an internal one in this case, and concluding that the military is the only instrument that can save it. In fact, one could plausibly argue that far from being a signal of strength and resolve, the use of military courts highlights deeply entrenched structural weaknesses in the system. Equally, pulling the military into civilian affairs has to be seen within an historical context in a state that has repeatedly suffered military interventions.
Please note that so far we have discussed the idea of military courts in relation to actual hard security terms, i.e., with reference to trying captured terror suspects. But it is also a good point from where to pivot to the current issue of trying the May 9 political agitators under the Pakistan Army Act.
The situation, as it stands, is that the Supreme Court has adjourned the hearing of several petitions challenging the trial of civilians in military courts and the army’s legal wing is still in the process of completing codal formalities before formal proceedings against the 102 suspects in the army’s custody can begin.
Earlier this week, Chief Justice of Pakistan Umar Atta Bandial had hoped that the military would not begin legal proceedings against those in its custody until the court had disposed of the petitions challenging military trials of civilians. The issue is therefore sub judice.
The problem is that this problem is not just about legalities. It is also disingenuous to say that civilians were tried under the Pakistan Army Act during former prime minister Imran Khan’s government. Like all partisan arguments, it is dangerous because it seeks to select certain facts to the deliberate exclusion of a discussion on the principles.
The entire episode has rendered the army, yet again, as the dominant political player whose institutional interests demand a supine body of civilians. But the Army should not be allowed to establish its primacy in a principal-agent framework where the principal is the civilian chief executive.
The principle is that exception cannot be the norm. Also, that political agitators, no matter how unruly, are in no way a threat requiring trial through military courts. If they are guilty, normal courts are there to deal with them. And if, as I believe, the issue is not about legalities but power play, that is reason enough for the civilians to oppose military courts, rather than going along because of the opportunity to bludgeon Khan and his party out of existence.
Khan blundered when he made a Faustian bargain; his opponents are making the same mistake to put him down. The entire episode has rendered the army, yet again, as the dominant political player whose institutional interests demand a supine body of civilians. But the Army should not be allowed to establish its primacy in a principal-agent framework where the principal is the civilian chief executive.
It is an historical fact that the Praetorian Guard’s influence in Roman politics was because of their power to acclaim and depose emperors. Closer to our own history, the Sayyid Brothers of Brah did the same with weak and inefficient Mughal kings. It is easier for a military to influence the system from inside than to mount coups d’état. Coups raise eyebrows. They also indicate, more than a military’s strength, “its inability to get what it wants through the normal political process”.
The issue of the trial of political agitators under Pakistan Army Act will, on the surface, be decided by the SC. It will be foolish to predict how that might turn out. But in truth, what we have witnessed post-May 9 is the army’s institutional response to what it considered a major threat to its power and interests. The “decision” to try PTI supporters under the Army Act is a signal to all civilian actors and has to be seen in conjunction with what has happened to Imran Khan, the PTI and the mainstream media.
The rest is sophistry.