In the absence of an efficient investigation and prosecution system, the military courts will face the same challenges as are encountered by judiciary
Finally, the civil-military balance see-saw settled in favour of the heavyweight and a pliant chorus of political leadership gave in to the desire of establishing military courts. Negating its very existence, an elected parliament unanimously voted to unfurl red carpet for military courts.
After a brief demur by a few leaders, consensus was wrung out of an all parties’ huddle. The PML-N government, following its own fatal footprints of 1998, once again embarked upon establishing the military courts. Capitalising on the public spleen over the Peshawar tragedy, the military leadership dexterously seized the opportunity to consolidate its position in a turbulent civil-military relationship.
This single step has effectively reversed the marginal gains of civilian supremacy achieved during the tumultuous years after 2008 elections. Political leadership that never mulled over forging consensus to inject radical changes in judicial and criminal justice system collectively blotted the democracy by allowing establishment of military justice rooms.
In a knee jerk reaction to the Peshawar incident, an emaciated government of the PML-N resorted to a series of executions, encounters and military courts. Rather than addressing the root causes of extremism, shelter was sought in surgical measures of hangings, killings and setting up of army courts.
Political leaders, newscasters and anchorpersons dutifully congratulated the nation on a rare convergence of civil and military leadership on this historic achievement. The frenzy was so overwhelming that a simpleton would find it hard to take a pause and ponder over the merit and rationale behind such perilous decisions. Sheer enormity of emotions prevailed over every logic and an anathema to democratic norms was agreed upon after marathon meetings by political leaders.
The Constitutional amendment will not just change the Article 175 pertaining to judicial edifice but will also afflict guarantees of fundamental rights enshrined in the Constitution. Infant mortality of the "right to fair trial" will be the most conspicuous casualty. Preempting the backlash, extraordinary circumstances have been repeatedly reminded by the security coterie. A deafening drum beating of extraordinary circumstances muffled every voice of dissent.
The retreat of democracy will pave the way for an enigmatic dispensation where security, foreign policy and judiciary will be effectively in the iron fist of army and the parliament will be left with managing the leftover trivialities of national affairs.
Military courts have an inglorious history in the country. During the brutal Zia martial law, such courts were known as draconian bodies. Summary trials resulted in execution, whipping and imprisonments of numerous political workers and agitating citizens. The whole gamut of military justice served no purpose but only sullied the image of army and the institution lost its grace in the public eyes.
Civilian governments too established army courts in 1977 and 1998. On both occasions, superior judiciary declared them unconstitutional. Both the prime ministers, who established army courts, met an unceremonious culmination. Bhutto was hanged and Nawaz narrowly survived yet humiliated up to the hilt.
The previous PML-N government allowed the establishment of army courts in 1998 with a mandate to try civilians for heinous crimes in Sindh. The Supreme Court axed the proposition in February 1999. However unlike 1977 and 1998, this time army has deeper stakes in this decision. The statements of higher military echelon have been transmitting the message abundantly loud and clear. A visible squeeze brought the political leadership on the same page to ostensibly avert potentially more severe consequences.
However, the dust does not seem to settle with the passage of the constitutional amendment. Several unanswered and unforeseen questions will keep hovering over the decision. In all likelihood, superior judiciary and legal fraternity will not swallow the fresh attempt of creating a parallel justice system. Judiciary will certainly consider it as an affront to the normal justice system. There is a possibility that the constitutional amendment will be challenged in the Supreme Court. It will put the Supreme Court in an awkward situation.
An air of public sentiment has been created in favour of the army courts. All leading political parties are behind this amendment. Not a single member of the Parliament voted against 21st Amendment. It will be difficult for judiciary to stay insulated from all these factors. However, if the Supreme Court is approached by any petitioner and if it results in any adverse verdict, it can trigger an earthquake that can jar every bone of the system.
In absence of an efficient investigation and prosecution system, military courts will face same challenge that is being encountered by normal judiciary. A number of recent convictions by anti-terrorism courts were set aside by the higher judiciary mainly because of substandard prosecution. Zakiur Rehman Lakhvi and Malik Ishaq are two significant acquittals. Since military does not possess a trained cadre of prosecution experts and associated legal paraphernalia, verdicts of extreme penalty will face serious question marks.
Speedy proceedings will make the process even more vulnerable to this remiss. Another challenge will be the end line of these courts. The constitutional amendment limits the life of military courts to two years. However, considering magnitude of the challenge, the situation may prolong beyond the stipulated time bar requiring continuity of these courts. Would army be comfortable to wrap up these courts and depart with an unquenched thirst of interring the menace of terrorism?
The protagonists of military courts believe that most of the convictions are currently being evaded because judges, lawyers and witnesses are threatened by the militants. Killing of the witnesses of Wali Babar case, gruesome murder of lawyers such as Rashid Rehman and Chaudhry Zulfiqar Ali, life attempt on Justice Maqbool Baqir and emigration by the sessions judge who convicted Mumtaz Qadri are cited as tenable examples. It is conjectured that army judges and prosecutors will be immune to such coercions. However vulnerability of witnesses will continue to be a challenge. The very reason actually demands a seamless security arrangement for existing judges, lawyers and witnesses. Measures can be adopted to achieve this objective without inducting military in the justice system.
The real stumbling block is an archaic system of investigation and prosecution. Unless it is supplanted with modern methods, even army courts will not be able to achieve the objectives. Political leadership should have demonstrated stewardship by chalking out a plan to incrementally improve criminal justice system through a set of integrated measures. Leaving normal judicial system unattended and relying upon temporary solutions will be a definite disservice to democracy.
Army courts or hangings are considered as a mean to frighten militant groups. Most of these militants are brainwashed to embrace death as a sacred path to heaven. Such elements hardly cringe on death threat. Any strategy to stamp out terrorism should actually focus on the nurseries where such mentoring is being induced.
Instead of eliminating terrorists after they have already wreaked havoc, it will be wiser to scuttle their germination process. On the very day newspapers carried the report on praxis of national action plan, a newspaper disclosed excerpts of an official report about links of the Lal Masjid with militants. The report reads "Lal Masjid mafia has links with militant groups and land grabbers". The report categorically identifies cleric of the mosque as a threat to law and order. This is not the only alarm of its kind yet the decision makers are completely ignorant of what is happening at a stone’s throw distance from their castles.
Extremists openly operate in the federal capital and major cities of Punjab but no one dare touch them. It is ironic that products are banned and hanged while safely located factories keep replenishing the stock incessantly. Existing laws and structures are amply equipped to uproot real causes without indulging into a contentious parallel justice system. It is hard to comprehend what precludes political leaders and parliament from overhauling the normal judicial system.
Protection of judges, lawyers and witnesses or improving criminal justice system are not too herculean tasks for politicians and parliament to undertake. While the government does not waste time for legislation to control donor funding to non-governmental organisations; it becomes too spineless to check inflow of illegal resources to the elements responsible for fanning extremism. Actions like blocking foreign funding for obnoxious purposes, sanitising text books, regulating sermons and forfeiting toxic literature do not need khaki courts; it just needs political commitment and a sincere departure from dud policies on terrorism.