The unfortunate and tragic incident of Peshawar has brought our national leadership on one page and very quickly they are constrained to realize that it is the time to deliver. One of the conspicuous side of the deliberations is the feeling that our judicial system is drastically dysfunctional and it has failed to deliver the most needed commodity that keeps a society at peace and cohesion. It is called the justice. The realization of failure of our justice system is an old would on soul of our democracy. It was dearth of justice and quest of the civil society to acquire it that fostered judicial movement during the year 2007 and as a result the then chief justice was restored. But on large scale the society was deeply disappointed with developments that followed.
Now that our national leadership is in dire need of bringing the terrorists to justice, it is running short of options and is compelled to deviate from the established democratic norms. It is constrained to find an ad hoc solution of setting up military courts to dispense justice in order to protect the society. The sad side of this choice is that reliance on military courts is being placed without any parallel plans to cure ills of dysfunctional judicial system that has failed to dispense speedy and inexpensive justice to the masses. This failure of our judicial system consequently breeds vengeance, deplore and contributes to rebellionism and to some extent promotes terrorism as a consequence of injustice.
A vital, speedy, adequate and impregnable judicial system has been back bone of every civilized society in modern world. The judicial system is such a foundation that supports normative structure of a society. It protects and preserves social order, cultural practices, traditions, collective beliefs and value system emanating from a grand ideological foundation. A society that is able to perfectly follow their social normative structure is one that can enjoy prosperity and freedom at their choice. Such freedom and prosperity can only be fostered and protected by a vital judicial system that can ensure rule of law across the society. Unfortunately during the last over three decades our society has been a victim of prolonged and multidimensional negative pressures that have destroyed our social value system and norms to an extent that the society has become chaotic and disorganized to a level that it is almost dysfunctional and norm less. Our judicial system today is a mirrored view of our society. A recent survey conducted by World Justice Project has classified Pakistan amongst the countries that has the poorest rule of law experienced in everyday life. Not only does Pakistan rank one of the lowest around the globe (96/99), but also fifth among six regional countries in overall rule of law performance, leading only Afghanistan.
It is the dysfunctional side and inadequacy of our judicial system that today has forced our national leadership to chose an undesirable solution of depending upon military courts to bring the terrorists to justice. The most deplorable part of this social tragedy is that our national leadership is proving to be shortsighted. Very comprehensive national action plans are being worked out utterly disregarding any short term or long term strategies to restore adequacy and vitality of our ailing judicial system. No measures are being adopted to eliminate injustice from the society which is root cause of fostering terrorism. It is the vital, speedy and adequate judicial system in a progressive society that has an inbuilt mechanism of continuing social engineering. This social engineering is the process of protecting the normative structure and value system that promotes rule of law. Over the period it essentially brings about collective positive changes in individual attitudes, affinities, habits, social behaviors and promotes deterrence to conserve popular value system on large scale. Where judicial system is vital and adequate, the outcome is bound to be rule of law and compliant citizens.
Placing reliance upon military courts may be need of the time and perhaps the only option within the given social milieu. However, it needs to be appreciated that military courts are meant to deal with a military society that passes through a peculiar process of socialization, has distinct cultural traditions and there is zero tolerance against individual or collective deviance. The military officers dealing with process of justice are neither trained to adjudicate nor they are trained in application and interpretation of law. As military commanders they adjudicate deviant conduct to preserve discipline by all means. The military justice system usually does not negotiate justice by disregarding the essence of discipline. In our case the military society is a closed society and it jealously guards itself against any outside interference. The military persons are subject to a distinct law where there are no remedies in respect of fundamental rights. The process of investigation, pre-trial scrutiny and the process of trial itself is subservient to the intentions of the military commander ordering the trial. The military officers conducting the trial are often subordinate to or inferior in rank to the military commander convening the court. Most importantly the military court is not required to record any reasons to justify its judgment and it is only required to pass a finding of guilty or otherwise and award sentence. If there is no speaking order wherein evidence relied upon is discussed and analyzed, it becomes almost impossible for an appellate forum to review the judgment. The convicted person faces hardship in understanding the substance of case against him. This perhaps is not only illegal and unconstitutional but also is against the universal standards of administration of justice. Under the law a military court is an open court but hardly any proceedings are conducted in public view. The judgments of military courts in Pakistan are not open to any independent scrutiny by a civil court unlike several other countries including India, China, Canada, Australia and the list goes on. There is an appellate forum within the services which again is manned and managed by military officers. It is not the purpose here to stigmatize the process and procedure of trial by military courts. The idea is to draw attention towards the gap which is needed to be filled to present a better outlook of trials by military courts even if it is an undesirable option for a limited period of two years. While only history would show whether the trial of terrorists by military courts would actually eradicate terrorism or not, it is essential that our national leadership must not be complacent with this undesirable achievement alone. It must have holistic approach towards eradicating the ills of dysfunctional judicial system that we have today. A democratic society has to be dependent upon this system alone. The choice of military courts is bound to be a failure if with equal vigil, alacrity and conviction our national leadership does not work out a parallel revolutionary action plan with active participation of superior judiciary and the lawyer bodies to establish a dependable, vital, impregnable, quick and efficient judicial system. The government must invest substantial funds to set up dignified court rooms, restore dignity of lower judiciary, recruit and increase number of judges to manifold with scrupulous vigil both in lower and superior judiciary. It should legislate for speedy justice, accountability of inefficient judges and penalizing the vexatious litigation. Finally, it is time that undesirable choice of military courts by the government moved the superior judiciary to introduce radical changes for collective good of the society to restore confidence of society in the judicial system.
(The writer is an advocate and holds Ph.D degree in Sociology. He has been a Defence Attorney appearing before military courts. Email: [email protected]