Military courts: a moral perspective

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.

Why Pakistan is not a viable state?

Better to start with two clarifications: First, this piece does not raise the question of Pakistani state’s viability in the sense Pakistan’s Leftists and liberals are wont to discuss it. They say something like that: It’s unviable because it was created by the British in line with their policy of Divide and Rule; It’s unviable because it was created by the narrow-mindedness of Hindus or the Congress, or the stubbornness of Muslims or the League. They also hold that: It’s unviable because religion is never the basis of any state. The writer prospectively believes that states are not rational entities; they may come into existence, and disintegrate and disperse into more entities with or without any rational justifications. It’s like individuals or groups of human beings who want to live separately for any concrete or imagined grievances or none at all that states are born and withered. The crux of the argument is that what’s important is not how and why new entities of states emerge, what’s fatally important is how the newly emerged states live, grow and perform on the scale of their citizens’ rights and well-being.

Second clarification tries to address the universally prevailing view of Pakistan as a failed or failing state. This view derives its arguments mostly from political and economic realms. It’s a complex argument comprising many a heterogeneous theses. For instance, it raises such issues: Military’s hegemony vis-à-vis civilian and political affairs; Intelligence agencies’ role in political and state’s affairs; Absence of democratic values and democratic polity; Centre’s hold; Provincial disharmonies; Ethnic resentment; Linguistic discords; Economic subservience of lower classes; Inefficient state machinery; Separation of the East Pakistan as Bangladesh; etc. Various combinations of such politico-economic factors invite the epithet of a failing and disintegrating state for Pakistan. The writer has nothing to do with this view either.

The above-discussed factors do make sense of what has been and is happening right now in Pakistan. One may quip: The political drama being played at the moment in Islamabad proves the unviability of the state of Pakistan! The writer wants to push the argument deeper into the political abyss Pakistan has been thrown into; and, aims at going beyond the constitutional argument for the viability of a state. That no doubt applies to the first two decades or so of Pakistan’s history, when there was a display of various constitutions appearing and disappearing on the political celluloid. Why this was the case then that now a constitution was enforced and now it stood abrogated? It is here that the argument of this writer formulates itself. Certainly it was not mere geographical, political, ethnic, linguistic, or economic differences which were responsible for the lingering constitutional crisis facing early Pakistan. It was something more and other and different than that which caused that constitutional impermanence. In fact, it was that “something” which lied behind and resulted in the formation of Bangladesh.

But what about the four decades (and the fifth lapping to this day) which lived through the company of a constitution promulgated in 1973? Where had gone that “something” during that constitutional intactness? Of course, the devil did not vanish then, but became distributed in details. The constitution was verily there, but seldom enforced and followed in letter and spirit. Up till now, it has been operated upon by three openly declared Martial Laws (1977, 1999, and 2007). As is believed and upheld by many analysts that even when the army is not in the saddle, in certain matters especially and otherwise generally it keeps the reins in its hands. Be that as it may, it is politicians the responsibility lies with whom to run the affairs of the state in accordance with the provisions of the constitution, and it is they who criminally share that with others, whoever they are. Not only politicians collude with the army and intelligence agencies, but they when in power do not bother with the dictates of the constitution. Let it be mentioned here that it completely excludes the spirit of the constitution, more significant than its letter, which never finds any followers in politicians. No denying that both usurpers and lawful rulers treat the constitution in a manner as if it is there for them to manipulate and not to abide by and follow in letter and spirit. Again it is that “something” which may clearly be seen underlying here in this type of anti-constitutional politics.

What’s that “something?” I would call it that minimum consensus which is necessary for any community of people to form into a political entity, i.e. a state. May it be noted here that it touches the boundaries of the notion of a social contract, but in itself it is not a social contract. In fact, when a community of people comes to institute a state, they first need to agree as to this intention that they are to be together in a state where whatever laws are to be made they will abide by them. That is that minimum consensus! It may be termed Writ of Law. Here it is taken for granted that not all the people may be in agreement with this or that law, and that’s natural; and that those who do not agree, even they are bound to follow that law, though they may try to amend, nullify or replace it with one of their choice. So, before a people enter into a social contract, they require a minimum consensus that whatever laws are enacted, regardless of their agreement or difference with them they will follow them.

Contrary to it, now and then this or that group of people, which does not agree with a set of laws, and instead of trying to get them changed in a prescribed manner, comes to violate and challenge that minimum consensus which ensures the intactness of that political union they are part of. That makes that political entity or state unviable. It is in this sense that the state of Pakistan is unviable, and presently it is PTI and PAT which are trampling that minimum consensus in the name of Azadi and Inqilab. Pakistan’s political history of about 7 decades proves that point. Be it prior to the 1973 constitution or after it, that minimum consensus has always been at stake. It is at stake now also!

Note: This article was completed on September 11 and was originally posted in October 2014.

Media wars

It is essential to seek out enemy agents who have come to conduct espionage against you and to bribe them to serve you. Give them instructions and care for them. Thus doubled agents are recruited and used. [Sun Tzu]

Before March 9, 2007, it was all dark on the horizon of Pakistan. A military dictator was ruling while dressed in khaki uniform; he was intent upon continuing his rule for the next 5 years; and the criminal politicians were all ready to help him rule for more than a hundred years. Such was the hopelessness that no rational being could dream of a silver lining. One could only fear what happened to Iraq after it grabbed Kuwait, may not happen to Pakistan.

All of a sudden, and it was just like a bolt from the blue, a hope started taking shape. First time in Pakistan, the point was made that the government must be run by the book. So, the lawyers’ movement taught the people of Pakistan three lessons in democracy: constitutionalism, rule of law, and fundamental rights. During this movement, the dynamics of Pakistani society changed the repercussions of which will be felt far deeper into the future.

One of the new forces that emerged in the midst of that movement is electronic media. Rather it may rightly be asserted that not only the plethora of TV channels got allied and aligned with the people at large, but they realized their power also. That made them self-conscious elephantine! Ensuing of a fierce competition among them was quite natural. In a Robbinsian economic sense, viewership as well as advertisement revenue was scarce, and they fought for a larger share forgetting all the norms and rules of the game. The one which won not only a larger portion of the viewership but revenue also became the target of envy and conspiracies by other lesser obtainers.

Previously, it was all melodrama. There was only one TV channel, the state-run PTV. For its survival, it was dependent on the doles from the state, and it blew the stat’s trumpet. In order to survive, it’s still extorting Rs.35 every month from every TV set owner by using the might of the state. Emergence of dozens of new TV channels, which of course were to be run like businesses, completely altered the scene on the stage. The state-run PTV slipped behind the curtain, and lost both its viewership and revenue to the new breed of TV channels, which in no way were dependent on the state. Instead they depend on their market of viewers who indirectly yield revenue to them. Thus, in the world of electronic media in Pakistan loyalty to the market is the rule, and loyalty to the state and its institutions is an exception (loyalty to the constitution is quite something else).

As the art of the statecraft requires, the private TV channels were brought under a regulator, Pakistan Electronic Media Regulatory Authority (PEMRA). However, in essence the ruling political parties came to control these channels for political gains and privileges. That the regulator in this case, as in so many other cases, was not given autonomy and the government kept it under its authority, it remained spineless, resulting in a chaotic broadcasting environment. A number of attempts on the part of these private TV channels to self-regulate failed, which provided ample space to the state and its various institutions and agencies to dictate their agenda items to this or that TV channel.

But that was not like PTV days, the golden days of melodrama and happy eulogies. The competition among these channels drove them to uncharted territories and unfathomed depths. They have already realized their elephantine powerfulness during the lawyers’ movement when they helped defeat a military dictator. Now they have their own fish to fry. They started questioning every practice of the state, its various institutions, including the security entities; the pivot and the point of reference was and is the constitution of Pakistan. The stories and acts which previously went untold and unheard, now found tongues and ears. The tales of Saleem Shahzad, Umar Cheema, and Hamid Mir had a rebellious tone, and challenged the perpetrators. It may also be explained thus that where politicians were required to act boldly was taken up by a TV channel itself. This shows the utter desperation of those who have no hope of justice.

Under the circumstances, the most relevant question is about the role of the state and the politicians. Related with it are other crucial questions, such as: why the constitution is not followed in letter and spirit by the various institutions and entities, be they security or otherwise. Or why the politicians fail to enforce a constitutional rule in Pakistan. Why there is blatant power play which in fact repudiates the spirit and provisions of the constitution. Why the politicians fail in securing the fundamental rights to the citizens, be they journalists. Why the politicians fail to set up independent and autonomous regulators and let them do their job.

In other words, it means had there been rule of law in Pakistan, no institution and entity would have engaged itself in un-constitutional activities. Had there been independent and autonomous courts, no suppressing of the fundamental rights would have been possible. Had there been due accountability mechanisms existent at every level of the state institutions including the Army and the intelligence agencies, there would have been no cases such as of Saleem Shahzad, Umar Cheema and Hamid Mir on the one hand, and on the other, no media campaigns against any security entity may have been unleashed. But all that remains completely absent in Pakistan; which emboldens every individual and every institution to do what they like.

No doubt, the anarchy prevailing in the realm of electronic media in Pakistan at the moment may not have been the case, had there been an independent and autonomous PEMRA, which would have acted in the nick of time in case of any irregularity committed by any media house. However, the PEMRA is still conspicuously absent from the scene whereas weeks have passed that a media war has been raging in Pakistan. That speaks volume about the failure of the ruling PML-N’s leadership!

Note: This article was completed on May 27, and was originally posted in July 2014.