Justice – all over the place
“With a two years extension now, the military courts will remain active in hearing terror cases, and convicting the terror suspects.”
While the nation was trying to understand the need of, and the justification behind, providing a constitutional cover to Jirga and Panchayat systems through the Alternate Dispute Resolution (ADR) bill, on Tuesday another piece of news broke through: that the military courts have been given an extension for another two years in an attempt to expedite, and reach meaningful end to ongoing cases of terrorism. The decision to reinstate military courts came as a surprise as, for quite some time, there remained a clear divide between the government and the opposition parties on the matter, and the government was unable to seek support from the latter.
Parliamentary leaders on Tuesday, however, reached a consensus on the prevailing law and order situation in the country, and agreed to reinstate military courts for a period of two years, completing which the cases will automatically be transferred back to the anti-terrorist courts in the country. The parliamentary leaders reaching consensus comprised of primarily PML-N Leader and Finance Minister Ishaq Dar, PTI’s senior leader Shah Mahmood Qureshi, MQM’s Dr. Farooq Sattar, and others. The PPP alone was not represented in the meeting. The senior political leadership agreed that the security situation in the country, especially in view of recent attacks, remains volatile and vulnerable, and giving an extension to military courts to function is the need of the time.
The military courts were established through an amendment (21st amendment) in the constitution, following the deadly APS attack claiming lives of up to 274, most of which were children. At the time, all political forces were on the same page, and called for establishment of military courts for a period of two years. This step was aimed at curbing the menace of terrorism through judicial finesse, in addition to the battle already being fought in the field by the security forces. The military courts had stopped functioning in January 2017 after completion of two year period from January 2015.
With a two years extension now, the military courts will remain active in hearing terror cases, and convicting the terror suspects.
Parallel Judiciaries
The provision of constitutional and legal cover to the out-dated Jirgas and Panchayats, followed by an extension given to the military courts, that too both through parliamentary and democratic representatives, give birth to the concept of parallel judiciaries in the country to the already existing supreme judicial structure. The emergence of formers as options also raises concerns over the delivery of justice through the latter, and threatens its constitutional supremacy which is unfavourable to a state aiming to achieve stability through balancing out institutional roles, responsibilities, and jurisdictions in light of the constitution.
Judiciary remains a key pillar of any modern era state, and its supremacy lies in singularity. Multiplying the sources of justice will only overshadow the superiority, and result in a lack of faith over the institution, without which prevalence of justice will only remain a dream desperate to come true.
The developed World countries, no matter what the circumstances, remain host only to supreme judicial systems, and are unheard of judiciaries running parallel to each other.
The more, the less….
It is interesting to see, however, that despite the constitutional empowerment of parallel judiciaries, whether in form of ADRs, or the military courts, the provision of justice to the very general public remains unaccomplished. With this, can the empowerment of judicial structures other than the supreme one be justified?
Not to doubt the intent of the government, and the democratic forces behind these initiatives to speed up, and streamline the timely provision of justice, but the legalisation of Jirgas and Panchayats through the ADR, and the reinstatement of military courts is not a sustainable solution to the problem, and instead of strengthening the existing judicial structure through their support, they are expected to further weaken its credibility.
“… when it comes to parallel judiciaries, the fact remains that to date these have not aided in the provision of justice. In fact, they remain hosts to a lack of transparency, utter disregard for necessary pre-requisite competence of the judges, and no right to challenge the judgments passed by them in any court of law.”
The approach by the government to increase the pipelines for provision of justice, and the same being backed by mainstream political parties is looked upon by many as a lack of faith in the existing supreme judicial structure’s ability to deliver justice, and to establish the supremacy of law in the country.
However, when it comes to parallel judiciaries, the fact remains that to date these have not aided in the provision of justice. In fact, they remain hosts to a lack of transparency, utter disregard for necessary pre-requisite competence of the judges, and no right to challenge the judgments passed by them in any court of law.
Competence or capacity?
To look for sources beyond the existing structure of judiciary raises a question; Is it the capacity of the existing structure that is insufficient to meet the demands of just and speedy justice, or is it the competence where the problem lies?
In the current scenario, capacity of the existing structure is a core issue, since the burden on the courts to hear and resolve disputes in the light of legally binding standards is immense and the infrastructure and manpower at their disposal is not sufficient to meet the rigorous demands. The government, instead of providing constitutional covers like ADR to incompetent and irrelevant bodies such as jirgas and panchayats, must focus on building and enhancing the capacity of the existing judicial structure, a step which will certainly facilitate the provision of justice across the country.
The reinstatement of military courts for another two years, on the other hand, could have been avoided had the aforementioned step been taken by the government to strengthen anti-terrorism courts as well.
The supreme judicial system holds the competence (in terms of legal academia and experience), something that clearly lacks in the two other structures, and is capable of delivering, and meeting the demands for justice provided being equipped with the necessary pre-requisite we call capacity.
