A rose among the weeds

Much of the discussion around whether Pakistan should revive the 21st Amendment court has been completely conclusory. Happily, there have been a few roses among the weeds. This op-ed by Islamabad lawyer Babar Sattar for The News International is a welcome example. Consider this excerpt:

The case for military courts as a means to fight terror rests on two assumptions. One, terrorists of the sort that we are faced with can be deterred by the threat of harsh punishment such as the death penalty. And two, accused get released from civilian courts because judges are either incompetent or afraid. Both suggestions, apart from being contestable, misdiagnose the problem and misconceive the solution. 

There is no objective basis to conclude that terror or other heinous crime can be deterred by threat of harsh punishment, as it is certainty of punishment and not its severity that reduces crime. To create certainty of punishment we need functional institutions producing predicable results consistently and not ad-hoc arrangements producing consequences in select cases. The terror infrastructure will not fall apart due to fear of courts. It will have to be dismantled by taking down the supply chain and addressing root causes. 

And the accused get released by courts because our investigations are faulty and prosecution weak. The solution again is not installation of judges willing to convict the accused without evidence. Fixing the court system will produce efficiency and reduce pendency, and must be done. But an efficient court system will not impact terrorism unless the criminal justice system and its non-court components – investigation and prosecution – are fixed. Calling in the military to act as police and judges solves nothing. 

When all else fails, we will need to undertake laborious rebuilding of the moth-eaten civilian institutions that comprise our criminal justice system. The sooner we start the better.