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Head of PPP Media Cell
Geoffrey Robertson, an English Human Rights Barrister, in his book “Crime against Humanity” maintains, ‘Special Military Court is not a Court at all. It is an extension of the Executive Power. The basic problem is these courts lack even the appearance of impartiality, and more importantly, they lack independence’.
Chairman Senate Raza Rabbani had regretted the proposed extension of military courts for another two years fearing these might be extended beyond 2019. Senator Farahatullha Babar had described the PPP’s endorsement of the extension as a bitter pill that the PPP had to swallow because the country was confronted with existential threat emanating from within and without. PPP leader Senator Aitzaz Ahsan also mentioned of giving way to the proposed amendment after government’s accepting PPP’s four recommendations including the setting up of the Parliamentary Committee on National Security.
Of course, the PPP was fully conscious of the incongruity of the military courts to the due process of law and to the functioning democracy and therefore opposed the extension. But, sustainability of the position became difficult as almost all other political parties were in favour of extension. However, its leadership, presumably, decided if the military courts were to become inevitable then its endeavor would be to make the military courts subservient to the due process of law to the possible extent because dispensation of justice was at stake. It was for this reason that the PPP presented its nine recommendations for inclusion in the proposed bill keeping in mind the imperatives of fair trial. Painstaking negotiations were held between the PPP and the government and others to break the stalemate that was lingering on because government was in an appeasement mood while the PPP was sticking to the imperatives of jurisprudence. The PPP agreed to the extension of military courts for two years only after the government accepted its four recommendations out of nine for inclusion in the proposed 23rdamendment in the constitution.
Military Courts were anathema to the due process of law in all forms and manifestations. The chances of travesty of justice were abound in martial judicial dispensation due to its opaque and impartial nature that was imbedded in it. These courts usually function on the maxim, ‘an accused is guilty unless proven innocent, whereas the accepted principle is an accused is innocent until proven guilty’. It was like victor’s justice that would not at all give benefit of doubt to the accused no matter how the inadmissibility of the circumstantial evidence might be. The use of anecdotal evidence against the accused was a faith accompli in the trial proceedings of military courts.
The winning of war against terrorism, according to defence analysts, was quintessentially intertwined with the winning of the hearts and minds of the people. The incompatibility of military courts with the narrative of defeating terrorism through winning hearts and minds was quite conspicuous. Military justice devoid of the due process of law was bound to invite reprisal in its worst form whereas judicial justice through fair trial might stem the tide of retribution. Justice administered through military courts was akin to judge, jury and executioner falling short of accepted national and international standards of fair trial. The fair trial essentially contained the elements of total separation of investigation, prosecution and adjudication, separation of the judiciary from the executive. Military courts were generically known as the extension of the executive arm.
Pakistan People’s Party genesis and history had never supported the parallel judicial system (military courts) because its leadership also had to face ferocious victimisation through the military courts as an instrument of dictators. With heavy heart, it had to endorse the setting up such courts in 2015 in the wake of gruesome massacre perpetrated by terrorists at the Army Public School in Peshawar. Then Senator Raza Rabbani and now Chairman Senate, in his speech in the House on 21st amendment comprehensively represented the dilemma of PPP—known as beacon of light of civilian rule and democracy. He stated with tears in his eyes, ‘I am ashamed to vote against my conscience’.
Now, again the PPP was in tight spot because of the almost across the board Parliamentary consensus in favour of the extension of military courts. PPP could not afford to discount it altogether as its leadership had been profusely espousing the cause of political consensus and reconciliation in the country’s politics so critical for ensuring the continuity of the political system. It was confronted with the situation damn you do it damn you don’t. Also, the PPP leadership was conscious of the fact that it’s galloping the opposite or different direction would result in loss of its leverage on other parties to evolve political consensus on the issues of immense national importance in future. PPP was indeed walking on the tightrope to reach the point unscathed politically and ideologically. For that, it had formulated its own recommendations ensuring the closest proximity to the due process of law.
Military Courts were clearly a damning indictment of incompetence, complacency and inability on the organs of the government—executive, legislature and Judiciary— reflective of their abject failure to improve the judicial system during the given time as required under NAP. It reflected poorly on the incumbent government for not pro-actively moving to revamp the criminal judicial system enough to dispense justice on terrorism cases. Regretfully, it had rather opted to outsource the administration of justice. The government’s delinquency was quite clear as it was desperately reaching out to other political forces in a bid to convince them in favor of two years extension of the military courts.
The PML-N government was surely responsible for not taking requisite initiatives for improving the moth-eaten criminal justice system during the last two years. Its craven failure to comprehend the criticality of this segment of the National Action Plan (NAP) was indeed unforgiving. It’s seeking the extension of military courts tantamount to its confession of committing non-compoundable offence. Its lackadaisical handling cast poorly on the government now clamoring for the extension of military courts. It also implied the failure of the civilian institutions despite the across the board mandate in the form of NAP. This perception substantiated by ground realities might not bode well for democracy as Damocles sword would continue to hang on by thread. The longevity of military courts would continue to spite the face of democracy, constitution and judiciary, pointing to ‘frailty is thy name’. The nascent political system, sadly, would also continue to hang on the tenterhooks grappling to survive in a cataclysmic and capricious political environment.
Theoretically, military courts were antithesis of the due process of law. Winning the hearts and minds was the accepted and the only credible narrative to defeat the evil of terrorism thoroughly and comprehensively. The multifaceted strategy was required to nip the evil. “A society where poverty and inequality increase at a faster rate than the GDP growth, where merit is discounted and access to justice depend on the size of one’s pocket, no counter- terrorism, however, rationally assembled, will route the militancy”. Poverty and injustice breed extremist inclinations among the poor people. Most analysts maintain poverty not ideology pushed the people to take up the arms against the state and its institutions. As such, the need of the hour was launching a massive programme of socio-economic development for the most poor, most neglected and most vulnerable segments of the society as a holistic counter-terrorism strategy. Military courts might create breathing space for the state but could not prove as a catalyst to an endurable solution of the menace.
The experience of the military courts during the previous two years in Pakistan had not been as propitiously helpful in serving powerful deterrent on terrorists. The recent wave of terrorism in the country demonstrated the audacity and the reach of terrorists to carry out their heinous business of bloodbath right across the country. Indeed, the Zarb-e-Azab military operation, not military courts, visibly improved the security situation in the country qualitatively. But, the victories in the battlefield were though important but fell short of total victory. The National Action Plan included full spectrum of actions to be taken by the state but regretfully there were half-hearted efforts. The madrassa reforms, revamping of the judicial system, de-politicization of the LEAs and above all dismantling of the safe havens of terrorist of all hues on Pakistani soil required resolute follow up action on the part of the state. But, the state was found wanting in this count, unfortunately.
The extension this time should be considered as the last opportunity. The government, state and its institutions should prove their mettle by bringing the terrorists of all hues to justice. The failure would embolden the opposite forces to discredit the decision that might prove double jeopardy. The lawyers’ community was bitterly opposed to the extension of military courts. The international human rights organisations were outright allergic to the dispensation without appreciating the perspective. The futility of military courts might be further reinforced because the terrorists were motivated lot ready to sacrifice their life without second thought. No amount of severity of punishment could deter them. The implementation of National Action Plan (NAP) in its all forms was the panacea to get rid of the scourge that had shattered the social fabric of our society.