The latest ‘consensus’ between the political parties is that military courts shall try suspected terrorists.

This shall be ensured through a constitutional amendment. The move has been welcomed and celebrated by many. The reason is obvious: we are fighting terrorism and we need to be tough. But is this really consensus?

The attack in Peshawar seems to have changed everything. It seems we have woken up to the threat of terrorism. Initially I wondered if we will do the right thing for the wrong reason? Why not realise the necessity of action sooner? But now I am convinced that we are heading in the wrong direction — and for the wrong reason.

The so-called consensus among the political parties seems something forced down their throats by the military leadership. It is sad that the civil political leadership is willing to completely cave in to the military’s suggested solutions in this war. PTI reportedly did not want to be labeled “pro-Taliban” so it signed off on this measure. ANP and PPP raised voices of resistance but ended up nodding their heads too. This might be news to the PTI, but choosing to ignore due process does not make you pro or anti-Taliban. What makes you pro-Taliban is being an apologist for their actions. To the extent that PPP and ANP have also chosen to adopt draconian changes, this makes every major political party in this country (and the military) guilty of thinking that ends justify any means — a principle at odds with constitutional guarantees of fair trial, due process etc.

Of course the rebuttal would be that “the Constitution is not a suicide pact”—and this argument would fly if the measures adopted could cure terrorism. Are we being attacked because we did not hang enough people? Are we being attacked because terrorists were allowed to go scott free? If you answer in the affirmative then you have a very myopic view of the problem. Do you think the Taliban are attacking us because we did not make enough of an example of them? Or is it possible that theirs is an ideology filled with contempt and hatred for our way of life and they would attack us anyway? Are they attacking us because a few dozen of them were acquitted or is it because they have been allowed to recruit with impunity as they spread hate?

Is it possible that they are attacking us because we have helped them spew venom and xenophobia in many Madrassahs? How does hanging people and military courts help with that?

The first question: what are our priorities?

What is motivating the desire to speedily prosecute and hang those charged with/convicted of terrorism? It definitely is not a concern for procedural or substantive fairness. It seems that we want to seek revenge — dubbed justice. If they kill ours then we kill theirs. Law, therefore, in this whole exercise is merely a tool to achieve the ends we want. The means shall be the ones we choose. All promises of due process and fair trail can go since we are now, as we are told, amending the Constitution.

Why is the Constitution being amended? The reason is a 1998 judgement in Mehram Ali’s case by the Honourable Supreme Court of Pakistan. The judgement declared unconstitutional many aspects of Anti-Terrorism Act 1997 — among them the military tribunals. The apex court ruled that the judicial power of the state (i.e. essentially the power to conduct trials, receive evidence, pronounce upon guilt etc.) was vested primarily in the courts of Pakistan. The exceptions to this have been provided by the Constitution in Article 212. A parallel judicial system cannot be used to whittle down or eradicate judicial power and authority. The Mehram Ali judgement stands in the way of anyone trying to establish a parallel ‘speedier’ system of trials in Pakistan. Hence, the government has decided to amend the Constitution — not just to get around the Mehram Ali judgement but perhaps even to change the scheme of judicial power in Pakistan. It will be interesting how the government goes about it but one thing is certain: any such constitutional amendment will be challenged — and it will lead to a major constitutional law ruling in this country’s history. In fact, any judgement regarding this issue might be forced to lay down the “basic structure” theory in Pakistan — a step that superior courts of Pakistan have commendably resisted till now.

It has also been reported that the constitutional amendment will come with a “sunset” clause — i.e. the amendment will cease to be in effect after a specified time period. This raises even greater worries. How many people are we going to “rush” through the trial process under military courts? Is our aim to be as fast as possible or to be as just as possible? If we know that the speedier process will lapse after, say, 2 years then what guarantee do we have that we will not use the process as crushing mill to throw in everyone we can? Stalin’s show trials might be coming to a military court near you.

The judiciary in Pakistan will, I am confident, resist this latest attempt to change the text, meaning and spirit of the Constitution. The politicians in this country have stood up for judicial independence and it is now time for the judiciary to support the weak politicians in a system characterised by civil-military imbalance. The judiciary must resist changes that make a mockery of fundamental promises made by the Constitution. In fact the judiciary must act out of self-interest too. One thing, above all, matters to courts: legitimacy in the public eye. If military courts are allowed to try terror suspects then the judiciary will be acknowledging that it is part of a broken system.

The fastest dying breed in Pakistan are those who believe that killings and hangings are not going to stop further attacks. The rest are emulating the Taliban mindset: “The end is sacred and supreme. The end is all that matters. Killing the enemy, using any means, is justified because the system is broken. There is no point following the system.” It seems that “We” are turning into “Them”.

I will take the calls for “speedier” justice seriously when people calling for military courts propose reforms for the Civil Court system and the litigation pending before lower courts. But speedier justice is not the aim here — a particular kind of mob justice, exacting blood and revenge at any cost, is. If all you are interested in is a mock trial and then want to see hanging dead bodies, you might as well skip it all and go with a firing squad. And you know the sad part? Many people in this country are all for that.

And then we wonder how we are different from the Taliban.

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