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.
Friend and eminent jurist, Feisal Naqvi, writing in this newsmagazine—Necessary Evil—says they were.
I differ with that view, as Naqvi has noted in his article. However, he has reduced my objections to a single point:
*Ejaz Haider and other columnists have argued that given the number of death penalty cases adjudicated by our existing antiterrorism courts, there was no need to drag in the military. Instead, the argument goes, given a few tweaks—like the addition of a witness protection program—the antiterrorism courts were and are perfectly capable of deciding the cases of even hardcore terrorists.
This is a point about procedure and modalities. My objection to the creation of military courts was/is more fundamental and relates to creating ‘exception’. As I have noted previously, the act of creating an exception itself is a problematic proposition. While jurists like Carl Schmitt consider it the basic trait of the sovereign, many others, notably Giorgio Agamben and Jacques Derrida, refer to an exception as a force that lies outside of law and is legal fiction.
My intention here is not to go further into that debate but to simply flag the point that while extraordinary circumstances might force a state and society’s hand into using law to denote its own absence for a certain period of time, it is, nonetheless, problematic.
In the case of military courts we are not just talking about creating an exception once by allowing the standard legal system to interpret law differently or ignore some of its finer points and settled axioms, but, by going outside that system, we are creating yet another exception.
Naqvi argues: In the first place, the point behind the establishment of military courts was not to prosecute terrorists in a more effective manner. Instead, the point was to make a statement of intent; to declare that the state had finally recognized that it was facing an existential threat and that it would now be using every single weapon in its possession, including those previously thought unconstitutional, to deal with that threat.
By Naqvi’s own admission, the military courts may not be more effective. So, I shall consider that settled. But the argument about intent, at best, is tenuous. Even in operational terms, there’s no a priori link between a state recognizing threat to itself, an internal one in this case, and necessarily relying on the military as the only instrument that can save it. In fact, given the nature of this war, the state’s excessive reliance on the military is an overt expression of the weakness of other elements of national power and its coercive apparatus. One can argue, plausibly, that far from this being a signal of strength and resolve, it signals deeply entrenched structural weaknesses.
The other point, which I shall not detail here but needs mention, is that pulling the military in has to be seen within an historical context in a state which has repeatedly suffered military interventions.
Naqvi’s argument flows from how the politicians, instead of taking on the terrorist groups, hemmed and hawed and tried to placate them through negotiations.
Three points need to be made in this regard: one, that is the nature of democracy which allows multiple expressions to be voiced. By the same logic, you need a public buy-in through a political process. Jeremy Corbyn in the U.K. and Justin Trudeau in Canada are examples of two politicians who think that the use of force in the war on terror has not resulted in utility of force and, therefore, there is need to change the strategy. One now heads the Labour Party in the U.K.; the other has just been elected prime minister by the Canadians.
Two, irregular wars require chin-wagging as much as fighting. The two approaches are not necessarily mutually exclusive. The point to remember is to know when to talk and when to fight and with whom one needs to talk and who needs to be fought with.
Three, the Taliban are on the run now, as Naqvi points out, not because of the creation of military courts but by a broad operation that seeks to clean the periphery as well as target them in the cities, not just by using the military but through a relatively more coordinated strategy involving a host of law enforcement agencies, including the police. And this operation could be undertaken because the Taliban made the mistake of mounting a horrendous attack on schoolchildren, an operational blunder that turned public opinion against them and allowed the state to leverage it. Sir Robert Thompson, a British officer and counterinsurgency expert, calls it “playing for the breaks”, taking advantage of original sins as well as situational errors by terrorist and insurgent groups.
Ironically, Naqvi’s reference to Alan Dershowitz actually supports the point I am trying to make—i.e., that when states and societies seek byways, citing extraordinary circumstances, we get Abu Ghraib and Guantánamo. Not just that, as Naqvi notes himself, the outrage, becoming a norm, loses its power to shock.
The most important argument against exception, today, by jurists as well as rights groups is the fact that exception is becoming the norm. Non-state actors, at very little cost, have not only managed to increase the direct cost for the states but also opportunity costs, including by tearing asunder the social fabric which requires an irreducible minimum of social trust among people on the one hand and between people and the state on the other.
And, therefore, while a fight for survival might not entertain Marquis-of-Queensberry rules, those rules are important if, at the finish line, the states are not to end up looking and behaving exactly like the adversaries they had fought. Because, were that to happen, the terrorists will have won even in their defeat.
Haider is editor of national-security affairs at Capital TV. He was a Ford Scholar at the Program in Arms Control, Disarmament and International Security at the University of Illinois at Urbana-Champaign and a Visiting Fellow at the Brookings Institution, Washington, D.C. He tweets @ejazhaider