What distinguishes a politician and a statesman?

A politician is a person skilled in the arts of politics, whereas a statesman is a person skilled in the management of national affairs. The former gauges national temperament and public opinion, and reacts accordingly. The latter proactively shapes the public opinion.

Unfortunately for Pakistan, we possess politicians a dime a dozen, and statesmen fewer than the caspian tigers.

After all, have we not been here before? Back in the 1997-99 tenure of Nawaz government, when tussles between MQM and its splinter group MQM-Haqiqi were damaging law and order in Karachi every day, the military courts were utilised to expedite terrorism cases in the city. It was through a presidential ordinance that this was ensured.

The practice was allowed only for two months, during which at least two were handed the death sentence — one, allegedly a paedophile, another a common robber.

Editorial: Military courts

Legend has it that the two capital convictions given out through the system served as a deterrence enough, so that the crime rate in the city drastically depleted. I say 'legend' because the former IG Afzal Shigri and the supreme court of the time begged to differ.

After two months, the supreme court decided it had had enough and overturned the ordinance, declaring it illegal.

And here we are since, giving the same tried and tested methods another chance. Thinking out of the box, or learning from the west where we happen to have spent most of the last decade, not our cup of tea, is it, Mr Prime Minister?

My grouse, and my apprehensions are not with the military courts per se, but with the way military courts may function in Pakistan, specifically.

But first, lets be clear on what exactly military courts system is.

Also read: Martial law better than military courts in Pakistan: Altaf

This system functions under the Army Act 1952, which has its own four-tier structure at field, district and general level, besides the simple summary trial level.

The summary trials are the petty ones, and pretty much irrelevant in the present sum game. The judicial bench at the field level consists of three officers (could be three freshly inducted lieutenants), at the district level of three commissioned officers with at least two years of experience and at the highest level — the General level — of five officers with at least four of them being captain ranked, and none with a service of less than three years period.

All the sentences passed out are in single-paragraph statements, with no requirement of mentioning the findings and reasons for which the particular punishment is handed out. The court sessions can potentially be held anywhere, and the punishment is served in the military custody. All the sentences have to be confirmed according to the rules mentioned in the Act.

In Karachi's case, the normal composition of benches was one colonel and two majors overlooking the cases, hearing them on a daily basis and quickly dispensing justice.

Flaws in the military court system

It is no doubt one of the speediest trial systems, but it comes with many caveats:

1

The decision makers are not experts in fine points of law. These could be officers whose education may entirely have been in mathematics and biology, deciding upon the life of another without understanding what equity demands. The Act does allow for a Judge Advocate's presence — an expert from Army's legal branch — to assist in trial, but it is not necessitated except in the case of the highest level (General martial court).

2

The system is not governed by precedence. A new panel is formed for each case, and the absence of procedure and precedence allows for decisions to be reached on an equitable basis. Although allowing greater room for manoeuvre to the courts, equity is a questionable yardstick, after all, coming from non-experts; and being a subjective value, how could the fairness and certainty be quantified, and ensured?

3

This system is not subject to appeals in the civilian courts, even at the supreme court level. Although a person convicted in military courts may be re-trialed in the civilian courts (as per Article 96 of the Army Act 1952), it goes against the fundamental right of protection against double jeopardy (being prosecuted twice for the same crime — Article 13 of the constitution), despite overriding the section 403 of Criminal procedure code, which too outlaws double punishment.

See: Military courts: How the reluctant were brought round

Admittedly, desperate times require desperate measures, but couldn't the said measures have been novel and revolutionary, instead of solutions reminiscent of the much criticised Frontier Crimes Regulation (FCR)? And who is to say this amendment won't be challenged in the Supreme Court for being in contradiction with fundamental rights? Lastly, why couldn't the government have reformed the civilian Anti-terrorism system functioning since 1997 instead?

As is evident from the Karachi experiment of military courts, and from the functioning of the Anti-terrorism courts, the prime problem faced in the persecution of terrorists is the vastness of definition itself. Acts spurred by vengeance and enmity, as well as those done in public no matter the motive, are routinely booked under section 7 of Anti-terrorism Act, thereby clogging up the system.

The alternative to establishing military courts

Would the government ever endeavour to define terrorism more comprehensively and restrictively, so that instead of "creation of sense of fear or insecurity in society" (which, in essence, almost all crimes do), just the politico-religious motives are adopted as the distinction point for separating a terrorism case from the common criminal cases?

The Anti-terrorism Act ordains that the cases must be decided within seven days. The reason that doesn't usually happen is the non-cooperative attitude of the police and the overburdening of the courts. At the appeal level, too, the vast number of cases pending in the high courts and the Supreme Court prevents immediate dispensation.

Read on: Multi-party body focusing on criminal justice system

But these concerns could have been addressed by associating NACTA with Anti-terrorism courts, thereby allowing the Anti terrorism courts liberation from the clutches of the inefficient police force.

Also, a special structure with separate benches at High Court and Supreme Court level could have been reserved for the appeal stages. Moreover, the number of district level Anti terrorism courts could have been increased, thereby decreasing the workload. Any convictions could have been served in military custody.

Repeatedly in our experiments we have favoured expedience over the proper, and see where we stand today.

Is there a necessity to overburden the Army with the judicial duties? Is the government shying away from taking responsibility by handing terrorists to the Army, or is it the excessive trust on Army and none of it in the Judiciary that is exhorting the move to establish military courts?

The Blackstone maxim reads, "It is better that ten guilty men walk free than one innocent man is incarcerated". Even if a single person is wrongly hanged in the reactionary haste, the entire purpose of justice would fail.

A statesman would realise that. A politician would not.