A person who is murdered, has he any rights? That question may seem strange. Let me add another dimension to it: What’s the spirit of law? Does it exist for the rights of the murderers to be protected? Or, it exists for the alive so that they enjoy their life safe and sound? Last year, in a seminar on the citizens’ fundamental rights when I made a comment that most of the NGOs are always ahead in safeguarding the rights of those who are accused of capital crimes but why they never turn up to defend the rights of those who are murdered, one activist really turned up to throw an angry question upon me: “What do you mean? The accused has no rights? And we defend murderers?” I said: “What I mean is that the one who was murdered he too had a right to his life, why was he deprived of that inalienable right? Who was supposed to protect that right of him?”
Here too, my contention is the same: What about the rights of those who are murdered, and that whether law has anything to do in the first place with the protection of their life? I presume who were murdered for a reason or for no reason at all the state was bound to protect all of them. My question those who have chosen the duty of defending the rights of the accused especially of capital crimes, why don’t they give a thought to the rights of those unfortunate ones who lose their lives? Partially in this sense, idea of the military courts makes sense.
Let’s try to delineate the issue as a solution for which the establishment of military courts is under discussion and which is one of the 20 points of the National Action Plan to tackle the menace of terrorism and extremism. In fact, the normal law is not able to take and complete its due course as is required: Delays, inefficiency on the part of the prosecution as well as the courts, fears and threats, complicity, etc. mar its performance. Both types of arguments for and against the military (speedy or special) courts are influencing the debate and public opinion in both directions. The military courts established by martial law regimes in the past are being used as a model to judge the proposed courts. That’s misplaced.
Leaving aside the both camps, I want to argue from the point of view of Law, and from the point of view of Morality. As for the first, so many others are also emphasizing that the measures which the 20 points envisage should have been taken quite earlier, since the day Pakistan came into being. That delay of about 68 years is more than criminal mainly on the part of the politicians who utilized the state for their Ashraafi interests and led it astray to what we witness happening today.
In principle, the first and foremost function of law is to protect all without any discrimination and make sure that no unlawful activity takes place, i.e. no such conflict brews which culminates in anyone’s murder. In Pakistan, however, the law has completely been negligent of this function of it; mostly because here the civil society and media took inspiration from the advanced world which has already achieved a peaceful lawful society and that’s why their point of focus is on ensuring the rights of the accused. Our society, on the contrary, is miserably a violent and unlawful society; that’s why in the first instance it requires its focus to stay on ensuring everyone’s right to life, property and liberty.
As for Morality, no debate in Pakistan, including the current one on military courts, has ever been mindful of it. It’s a non grata issue in the Paki intellectual, political, religious milieu. Let me remind that Law grows and flourishes in the soil of morality; in the absence of morality, no law can make any difference. Nonetheless, it’s Law which helps morality gain its lost dominion as it did in Europe. So in a lawless and devoid of morality Pakistan, we can start with establishing the rule of law, which with time will restore morality to its due status.
It needs not arguing that Law in an important sense is morals codified; in that it presents a moral view also. However when codified, Law takes its own course, be it moral or not. It is in this context that I want to introduce a moral problem, which the Peshawar massacre of children has brought to the fore in bold relief. No qualms about that: Let the Law take its course, which for innumerable reasons it has not taken; and it’s no time to inquire about its whys, while about 50, 000 innocent citizens have already become the victims of terrorism and extremism. The circumstances have put us face to face with a moral choice: Let the innocent citizens die at the hands of terrorists and extremists or take extraordinary measures to exterminate the murderers!
In the US, moral philosophers are employing empirical research and experiments to see how people respond to such moral dilemmas. One Problem of Trolleyology is being heatedly argued about; one variant of it is like this: Pull a signal lever and divert a trolley-car which otherwise is going to kill five persons tied to the track; but by diverting it to a side track you kill a person tied there. So what’s your choice? Most people want one should die, not five persons! In contradistinction to it, our choice is far too clear since on the one side are hundreds of thousands of innocent citizens and on the other “jet black” murderers! The only risk in setting up the military courts is the miscarriage of justice in some cases, the magnitude of which may only be measured after the legislation stands completed.
In a broader perspective, that would help shift the emphasis especially on the protection of everyone’s right to life; and though it requires a wider approach and a lot of other measures to succeed in the longer term, it may serve as the first step towards putting the state and society on a peaceful and lawful track.
Note: This article was completed on December 29, 2014, and was originally posted in January, 2015.