Establishing military courts

Not the best tool to dispense justice in a democracy

Pakistan’s march towards constitutionalism and rule of law is challenged by a chequred history of abridging the constitution, martial law, and a violation of fundamental rights. In 2009, a collective struggle of civil society, media, and the legal fraternity restored hope, but within a short span of time we are again prepared to violate the constitution under the new pretext of ‘combating terrorism’.

There is no denial of fact that we face a serious challenge of terrorism. We also have confidence in our military in terms of its defence capability. However, this does not mean that we should replace judges with military officers. As the judges cannot perform military’s tasks, so too are the military officers not qualified to conduct a trial. If military officers have to be made part of the legal and judicial process in terrorism related trials, then they may be (at most) appointed to assist the judges.

My opinion is based on these reasons:

First, the Constitution of Pakistan 1973 (the Constitution) provides for the separation of powers between the executive, the legislature, and the judiciary. This formula for the division of power is based on the ancient wisdom that: concentration of power in any of these institutions amounts to violation of the fundamental rights of the people. Thus, appointing executive i.e., military officers as judges in the courts violates the basic structure of the Constitution and, in doing so, infringes on the fundamental rights of the people. Moreover, establishing military courts will negate preamble of the Constitution (wherein the independence of judiciary shall be fully secured) as well as Article 175 which provides that ‘the judiciary shall be separated from the executive’.

Second, the objectives intended to be achieved by establishing military courts could be better attained through the existing courts. The existing terrorism laws should be applied in letter and spirit. In the past, acquittal of offenders was due to lack of strong evidence and those convicted were not prosecuted due to lack of political will. If required, amendments can be made to further empower and equip the civil courts and law enforcement agencies. For example, new timelines for concluding trials can be inserted in the law. The witnesses can be provided additional security and judges can be provided with additional information and assistance by intelligence agencies. The investigating agencies can be trained to collect evidence through scientific means i.e., telecommunications, cyber and forensic technology. Terrorism can thus be effectively combated without replacing judges.

Thirdly, appointing military officers as judges is like ‘placing a right person on a wrong position’. The short-term benefit, if any, will cause a long-term loss to our civil judicial system. As a matter of fact, no nation can be sustained without a strong judicial system. It is further argued that establishing the military courts goes against our military — repudiating its institutional integrity because military is not entitled to prosecute terrorists. Even otherwise, instead of being a solution, military courts have been a part of the problem in Pakistan during General Zia-ul-Haq’s regime as well as in Indian-held Kashmir, Egypt, and Israel.

Fourth, the envisioned military courts are likely to be immune from appeal or revision before the constitutional courts. Any decision of a High Court and Supreme Court is binding on other courts. The Supreme Court has already declared military courts unconstitutional in Liaquat Hussain case. Thus creating military courts is against the Constitution and constitutional norms prevailing in every civilised society. Pakistan is an ‘Islamic’ country and a ‘republic’. So, in order to meet its declared constitutional objectives i.e., wherein the State shall exercise its powers and authority through the chosen representatives of the people; wherein shall be guaranteed fundamental rights, it has to ensure provision of justice as per the minimum standards given under the Constitution of 1973. Giving responsibility of conducting criminal trials to military courts, in fact, violates fundamental right of a fair trial and due process of law.

Finally, establishing military courts will give us a bad name at the international level. Article 14.1 of the International Covenant on Civil and Political Rights provides that ‘in determination of criminal charge, everyone shall be entitled to a fair and public hearing by competent, independent and impartial tribunal established by law’. By any stretch of imagination, I argue, the military courts are neither ‘independent’ of the prosecution nor competent in law. In fact, we may not expect ‘justice in accordance with law’ from the courts ‘established in violation of the law’.