For Among Times Of War, The Laws Fall Mute
Legend has it that Piso, a Roman governor once ordered the execution of a soldier who had returned from a leave of absence without his comrade, presuming that he had killed the latter. As the condemned man was presenting his neck to the executioner’s sword, there appeared the very comrade who he had allegedly murdered. The centurion administering the execution halted the proceedings. Returning to Piso along with the condemned man, he anticipated a reprieve. Piso, however, enraged with the centurion’s actions ordered all three soldiers be executed. He ordered the death of the man who was to have been executed, because the sentence had already been passed; he also ordered the death of the centurion who was in charge of the original execution, for failing to perform his duty; and finally, he ordered the death of the man who had been supposed to have been murdered, because he had been the cause of the death of two innocent men. Piso, during the unprecedented spectacle apoplectically remarked, ‘fiat justitia ruat caelum’ (let justice be done, though the heavens may fall).
Following the horrific attack on the Army Public School, Peshawar in 2014, the state appeared to take a leaf out of Piso’s book. The Parliament, with unprecedented alacrity, enacted the Twenty First Amendment to the Constitution, by virtue of which military courts were allowed to try civilians allegedly committing terrorism in the name of a ‘religion or sect’. Further, the Amendment precluded civilians tried by military courts from invoking the protection of fundamental rights. The said Amendment was challenged before the Supreme Court in petitions that assailed inter alia, the right to fair trial, due process and the judiciary’s separation from the executive. The Supreme Court, however, validated the said Amendment. Recognizing the grave and unprecedented challenge that the country faced, the court opined that the Amendment included a sunset clause which stipulated that it would cease to operate at the expiration of two years from its enactment. The Amendment survived, epitomizing the adage ‘silent enim leges inter arma’ (for among times of arms, the law falls mute).
Military courts ceased to operate in January 2017. Murmurs surrounding their extension were dispelled. The recent spate of terrorist attacks across the country, however, resurrected the debate about the efficacy of military courts. Recently, the government and opposition have reached a consensus over their extension.
Terrorism had abated since the creation of such courts, it was contested. While terrorism did abate since the creation of military courts, the lack of transparency surrounding these courts renders it impossible to determine their contribution towards it. Furthermore, it has been reported that a large number of civilians convicted by military courts had been in prison and tried by the existing Anti-Terrorism Courts, before the enactment of the Twenty First Amendment. The co-relation between reduced militancy and military courts, thus, does not even survive preliminary scrutiny. Moreover, the presence of military courts has protracted endeavors to revamp the functioning of the Anti-Terrorism Court. It is pertinent to add that the government has been unable to table legislation that improves the status of regular courts by introducing protection for judges and witnesses, etc. Another disconcerting element of military courts is the startling number of confessions obtained in these trials. Out of the 169 people convicted by these courts, 158 ‘admitted’ to their involvement in the acts they were indicted for. The number, thus, raises substantial concerns about the use of torture and other coercive measures used to illicit such admissions.
The recent spate of attacks throughout the country, whereby courts, protests and shrines were targeted, manifests the threat that terrorism poses to this country. The greatest tragedy at this juncture would not be our failure to save lives, but rather our failure to safeguard the values we cherish. Many nations throughout history, while confronted with existential challenges have fallen prey to the proclivity of focusing on who they fight, disregarding what they fight for. Today, we face an enemy that tramples the values we cherish under the weight of its feet. The question we need to ask ourselves, thus, is whether we too, would obliterate the values which serve as the foundation for this great nation. The question we need to answer is, would the laws fall mute in this time of arms? In the words of one of the dissenting judges on the military courts case,
“The best response to terrorists – to isolate, thwart and defeat them – is to uphold the principles and rights that terrorists trample underfoot. Those accused of terrorist acts must be subjected to legal due process, an independent court and evidence based convictions. If we sacrifice our principles and slip, we shall come to face them in their swamp of infamy.”
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