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December 26, 2014

Military courts to make judiciary irrelevant in terror cases

December 26, 2014

ISLAMABAD: The federal government’s decision on Wednesday night to set up military courts has made the outcome of the meeting earlier in the day of the top judiciary irrelevant, as civilian courts have now no role in the trial, decision or appeal phases of cases to be heard by the military courts.
A high-level meeting chaired by the Chief Justice of Pakistan and attended by all the chief justices of high courts as well as monitoring judges of the high courts had devised and announced a strategy to expedite the disposal of terrorism cases, which also included hearing on a daily basis and special benches.
There has been a consistent objection to the country’s superior judiciary releasing high-profile terrorists but the judiciary has always held that no person can be punished without evidence, no matter how big a terrorist he is being portrayed as. As a matter of fact, incompetent police and investigation officers failed in most of the cases to present evidence or mutual tussles between different departments and agencies deprived the investigation officers from presenting proper evidence before courts of law.
Another big problem was that technologically advanced evidence, like phone call records etc, were not admissible under the law and legislators failed to improve the legislation on this count for more than a decade till the time terrorism turned into an uncontrollable monster. However, when the country’s top judiciary had showed its full resolve to improve the process at its end and to expedite the disposal of terrorism-related cases, the federal government, instead of improving and expediting the process at its end and improving the capacity of investigation officers, has simply discredited the judiciary and kept it out of the loop of hearing terrorism cases.
Senator SM Zafar, while talking to The News, confirmed that no appeal whatsoever could be filed before any civilian court, including any high courts or the Supreme Court, in cases tried by

the military courts.
“If you will appoint any executive officer, civil or military, on a judicial position, it will be simply against the independence of the judiciary,” said top lawyer Khawaja Haris. “The independence of the judiciary is an integral part of the basic structure of Pakistan’s Constitution and neither can any amendment to the Constitution nor any other legislation be done against any element of the basic structure of the Constitution,” he said.
“Any possibility of setting up such a special court was eliminated from the Constitution through the 18th Amendment, and now doing anything like that will be tantamount to reversing constitutional reforms. The government is admitting its failure and incompetence to make any proper strategy and to counter terrorism and now wants to use the crutches of military courts, which can only disturb the institution’s fight against terror, make it controversial. But setting up such courts will also be counterproductive by all means,” said former senior judge of the Supreme Court, former chief justice of the Sindh High Court, Justice Wajihuddin Ahmad.
“The only way forward could be to set up a new anti-terrorism court comprising good judges, making arrangements for speedy but fair trial and also setting up special benches in the apex court,” he said.
Khawaja Haris explained in detail the procedure followed in the trial of anti-terror cases and pointed out some basic deficiencies and flaws which result in failed investigations which cause delays in the trial and thus make convictions impossible. Haris contended that military courts will further worsen the situation, these deficiencies and flaws will multiply and will further weaken the whole system instead of being helpful. He explained that there is no proper system of preserving evidence, securing the crime scene and in a majority of cases even some basic principles of criminal investigation are not followed, which must be observed right after the occurrence of any terrorist activity. He explained that in the case of martyred journalist Salim Shehzad, fingerprints were not captured from his car right after it was recovered from a canal bank. Haris was the lawyer in the case of Salim Shehzad, ‘the martyr of journalism’. He said the bullet pods are given in the custody of forensic department right after the incident and later the gun is handed over to the same department after it is recovered.
“However, if the gun and bullet pods are given to the forensic department at a later stage simultaneously, or if bullet pods are produced after the gun, it is not considered evidence and the courts acquit the criminals,” said Haris. He explained that these are the things which need to be addressed and improved on a war footing with training and proper management. “Only these steps can improve the performance of anti-terrorism courts and make the process speedy, more reliable and trustworthy,” he said. “If we hang even confirmed terrorists without a fair trial, it will only create chaos in society and will be disastrous in the long run,” he said.
Haris said terrorism is not an act against the army, rather it is an act against the state and under the present constitutional scheme, there could be no justification for establishing a military trial court. He said what needs to be done should be done and what does not need to be done must not be done.
Experts say that even families of terrorists must know the reason and the whole truth about the terrorism incident in which any of its members was involved. Otherwise, when families receive the bodies of those who were sentenced to capital punishment without a fair and transparent trial, they will consider them innocent. This phenomenon will destroy the social structure and will only promote and strengthen the roots of terrorism in society.
Experts were of the view that the argument that in case of military courts, protection of evidence, witnesses and even of judges will be ensured is a lame excuse. They opined that first of all, there will not be confirmed security for all, as military-related information has also been leaked in the past and there is more probability of an attack on anything related to our security forces. The government will have to protect all — witnesses, lawyers, judges, at least those related to terrorism cases — to ensure a real and powerful war against terrorism and to take the nation out of this crisis instead of trying to hide or take the help of crutches like military courts. When the whole nation is facing a disastrous situation and even children are being killed, we should be ready to face any situation and the system should be built on sustainable, solid and strong footings, otherwise the whole structure will collapse.

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