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January 6, 2015

Legal experts warn military courts will undermine independence of judiciary


January 6, 2015

The proposed amendment to the Constitution of Pakistan to make room for military courts is a violation of the basic structure of the constitution and must be avoided at all costs.
So opined Barrister Salahuddin Ahmed, former president of the Karachi Bar Association (KBA), while addressing a press conference at the Karachi Press Club on Monday afternoon.
Delving deeper into the issue, he said that through this amendment, the judiciary, which should be absolutely independent to maintain neutrality and hence true dispensation of justice, would become a part of the executive. The executive of which the army was a part, he said, could not be expected to be neutral in the process of justice dispensation.
He said the focus should be on fixing the problems rather than just handing institutions over to the army. According to Ahmed, what was really needed and still needed to be done was a complete overhaul of the existing structure of the justice system and a holistic approach, rather than experimenting with the constitution which, in the long run, would prove extremely damaging to the country’s body-politic.
He said nothing had ever been done to revamp and brush up the justice system.
He pointed out the flaw in the system whereby, the prosecutors were hindered in the performance of their professional duties because of lack of protection from officialdom and said so often they complained of threats from offenders and criminals and in keeping with the natural instinct of self-preservation, they could not execute their due duties diligently.
“Threats come not only from offenders but also from officialdom, including all classes of bureaucracy, thus reducing prosecutors’ ability to mete out undiluted justice. Sometimes, there are instructions from the officialdom not to punish a person despite being proven guilty because he was considered a ‘strategic asset’. On other occasions, the offender happened to be very well connected

and meting out punishment to him can get the prosecutor into trouble,” he said.
“Would it not be far better to revamp the system to save the investigators and prosecutors from threats and intimidation rather than merge the judiciary and executive and deprive the system of independence?”
He asked who will decide which case went to military courts and which case went to civil courts. He said instead of setting up new courts, the existing system be revamped.
“If we are going to allow this encroachment by the military, then we might as well hand over payment of utility bills to the army,” he quipped. “The war on terror will have been lost if human and fundamental rights suffer.”
Also speaking on the occasion was Anis Haroon of the Women’s Action Forum (WAF). She was of the view that by approving military courts, political parties had also defeated their own political struggles, wherein they had fought for democracy and against dictatorial onslaughts in the past. “For military courts to be ushered in through the democratic process would be a stain the political parties will not be able to wash away,” she said. “The political parties should immediately withdraw their support for military courts.”
She said that the country had faced dictatorships, martial laws, and such militarised solutions earlier too. However this time, she said, regrettably, the initiative had come from the democratic process.
Karamat Ali, the director of Pakistan Institute of Labour Education and Research (Piler), was of the view that instead of getting the army embroiled in the judicial process, a far better thing to do would be to adopt a holistic approach and make justice accessible to all citizens regardless of their stations in life. The state, instead of resorting to undemocratic methods should enable every citizen to live a life of dignity, something that is incumbent on the state. “What causes phenomena like terrorism is an utter lack of justice and equality. True, terrorism must be wiped out. We all whole-heartedly support that but in this regard the thing to be done first is wiping away the inequality in society, said Ali.
The national consensus, he said, was not on military courts but on wiping out terrorism.
Like Barrister Salahuddin Ahmed, Ali also opined that prosecutors should be assured of full protection to help the justice system function smoothly.
Asad Butt, a prominent figure in the field of human rights, rejected the establishment of military courts contending that it would be a direct violation of fundamental and human rights.
The press conference was held jointly by the WAF, the Human Rights Commission of Pakistan (HRCP), Forum for Secular Pakistan, Aurat Foundation and Piler.

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