AT PENPOINT
The perpetrators of the May 9 mayhem against military installations are to be tried under the Army Act, including civilians (which includes all of the rioters), which reflects a certain lack of confidence in the justice system. Whether this is because the justice3 system is too ramshackle to be trusted, or because of the recent tilt of the superior judiciary towards the PTI, which provides most of the accused, is not clear.
However, in either case, the military wants to control not just the investigation, but also the trial process. This has raised a number of concerns, especially about the fairness of the trials that anse. It should be remembered that there is little compunction within the military about the presiding officer of a court martial of what verdict is expected of him and his colleagues. As he is not usually above the rank of lieutenant-colonel, there are a lot of seniors to tell him what result is to be produced.
One of the significant differences between a court martial and a trial in a civilian court is that a court martial is preceded by a board of enquiry. That board hears all the evidence collected thus far, and recommends whether there should be a court martial or not. Mostly the accused g3t off at that stage, so courts martial are usually of accused whose conviction is a foregone conclusion.
Interestingly, the term ‘hanging judge’ was first used for the civilian Judge George Jeffreys, who is the original ‘hanging judge’, because in 1685, when as Lord Chancellor he found 160-`70 of 1381 defendants guilty of treason during the Monmouth rebellion. Those found guilty were executed. The Monmouth Rebellion has a certain relevance because a large number were accused. Again, those accused in the May 9 incidents are many in number.
There is every danger of the investigation process turning into one of the hounding of one political party, the PTI. There is already a tendency to combine video evidence of presence at the attacked buildings with evidence of espousing PTI ideas, especially by posts on social media, to prove guilt.
It has been said that military justice is to justice what military music is to music. Of course, where the military, through the ISPR, has been a patron of the arts, sponsoring patriotic songs, plays and whatnot, there can be claims that the military can produce good, even great, music, so there is no reason why its justice should be anything less than great.
That may explain why the establishment is running the danger of having military courts struck down by the superior judiciary. That is why Imran’s abandoning the rioters is crucial. Signals for their being saved have not yet been received, and the judiciary has not yet been tested over whether it values Imran over the establishment. If it had indicated that it valued the establishment, things would have been simpler.
However, if one is to point to any one aspect of military justice that is problematic, it is that it does not observe the legal maxim about the accused being the favourite child of the law. There is also the maxim that ‘better 100 guilty men go free than one innocent man be hanged.’
On the other hand, military justice seems to invoke the maxim, ‘let justice be done, though the heavens fall.’ It is perhaps appropriate that the incident originating the saying was of a Roman Army commander who ordered his son executed for going home on leave (a capital offence).
While the Pakistan military seems inspired by that same fine Roman spirit, the guilty wish more lenient treatment. The accused in Pakistan is not so much a favourite child of the law, as his lawyer. Most of the causes of delay are supposed to come from lawyers asking for adjournments.
As Imran Khan’s fate in the courts has shown, the original case is lost sight of, as the process is examined. To take the July 9 events, Imran got bail from the Supreme Court not because of any merits or demerits of the NAB case against him, but because he was not properly arrested. All of the fuss over the attempt to arrest him from Zaman Park was because he was not appearing in a court in Islamabad. He has been trying to avoid appearing in that court because he wishes to avoid being indicted in the Toshakhana case.
One of the distinguishing features of arrests and trials under the Army Act will be the absence of such procedural niceties. That is being translated as a violation of fundamental rights. That may indeed be so, but the military is not ready to be very considerate of them. The basic political position of the establishment, that it can impose military rule, has meant a disregard of such niceties.
There is a previous experience of civilians being tried by military courts, when the military was brought in to try sectarian terrorists. One reason was that civilian courts were finding it increasingly difficult to conduct such trials, because the judges and lawyers themselves were threatened by the accused’s accomplices. Though the power to try civilians was given, terrorism was not eliminated. In fact, the military continued to be targeted, which made the courts martial a failure even in that respect.
Some of the trials, where civilian property was damaged, and where military installations were not targeted, will be in anti-terrorist courts, under the Anti-Terrorism Act. That Act was originally meant for sectarian terrorism, so it cannot really be said to be non-political. It can be said that it is aimed at organizations which seek to achieve political aims through terrorist methods. The difference between the anti-terrorism courts and the military courts might produce a sort of competition in speedy disposal.
This is a competition the civilian courts are bound to lose, because the experience of such special courts is that while they have been set up for quick disposal of cases, the supposed regard for the rights of the accused makes them about as slow and cumbersome as the ordinary courts. Apart from pace, there are also results.
It should not be forgotten that the military does not like military courts. They are an extra duty, unlike ATC judges, who are merely exercising professional abilities. If not an ATC judge, the judge in question would be an additional sessions judge somewhere. An officer serving as a member of a court martial, has to be withdrawn from the normal regimental or staff duties of his rank. The same applies to officers assigned as prosecutors or defenders in such cases.
In matters of justice, the military are merely amateurs, and a lot of the violations of rights occur because the machine demands convictions. Whatever the reason, the civilian judiciary, unlike the past, cannot be relied on to give desired results. One of the problems is that the superior judiciary seems to have struck out on its own, and the establishment would not like to patiently accumulate evidence against attackers of its installations, only for them to get bail before their trial starts, or to get a reversal on appeal of a conviction in an ATC.
There seem to be two different levels of operation. At one level, the establishment is working to convince its own rank and file that it can protect corporate interests. At another, it must also convince the general public. That it can do so. In short, justice must not only be done, but be seen to be done. Two different courts are needed for the two different audiences. While the second audience is crucial, the first is absolutely essential.
That may explain why the establishment is running the danger of having military courts struck down by the superior judiciary. That is why Imran’s abandoning the rioters is crucial. Signals for their being saved have not yet been received, and the judiciary has not yet been tested over whether it values Imran over the establishment. If it had indicated that it valued the establishment, things would have been simpler.
