Is extension of military courts proof that parliamentarians lack the spine to reform the conventional justice system?
Fast forward two years. The ‘sunset’ clause came into force on 7 January 2017. The military courts perished. Only to be brought back to life
“Buhut buhut Mubarik hoo faujiyoon koo,” (Many congratulations to army men) Asma Jehangir, well-known advocate Supreme Court and human rights activist, said to this newspaper about the two-year extension granted to military courts after presidential assent.
“Now they had better improve their ability of reasoning and logic as the doors have opened for us proper lawyers to enter their courtrooms,” added one of the most vocal critics of military courts in Pakistan.
‘Pakistani president signs off on military Courts’ read the ticker on tellies all over the country as Miss Jehangir regretted the very existence of military courts on Friday, 31 March, 2017.
But this is 2017, much water has flowed under the bridge since the gory December of 2014 and the (un)happy new year of 2015.
In January ’15, the supreme law of Pakistan made space for something extraordinary, something essential for the greater good of the land, its inhabitants and its very survival. The new entrant was christened ‘Military Courts’ — a child of post-APS mass hysteria and rallying cries for speedy trial — and was thought to perish at age two after terrorising and condemning to death those who terrorise and condemn the innocent, the unarmed, the vulnerable.
All aboard the extension bandwagon
Welcomed by many, criticised by some. “It was a necessity,” said the apologist. A senior legislator even shed tears over the passage of the 21st amendment two years back. Meanwhile, the proverbial layman fell for the oldest trick in the book i.e. the ushering in of new mechanism will root out the evil that haunts his existence.
Fast forward two years. The ‘sunset’ clause came into force on 7 January 2017. The military courts perished. Only to be brought back to life.
Within days, the government was running hither and thither to resurrect the military courts. The allies and opponents of the government jumped the bandwagon with the only exception of PkMAP who, despite being an ally, opposed the military courts without the usual ‘ifs and buts’ that PTI and PPP legislators sought refuge in.
The ‘ifs’ are; If the government worked, we wouldn’t have needed the military courts in the first place. If the government showed seriousness, it would’ve sorted out the whole conventional criminal justice system. If there was will on government’s part, it would’ve found some other way.
The ‘buts’ are; But the government failed, thus we have to give military courts an extension for a further two years. But there is no other way to ensure swift, speedy way to impart justice to those who kill our kids and maim our people. But the criminal justice system is full of flaws and judges lack the spine to punish jet-black terrorists.
Sharing of power ≠ Transfer of power
“Since Zia-ul-Haq’s time transfer of power never took place in Pakistan. Benazir Bhutto came twice, Mian Nawaz Sharif is enjoying his third term. Both of them shared power with men in uniform,” said Senator Usman Khan Kakar of the Pakhtunkhwa Milli Awami Party, another outspoken critic of military courts. On the floor of house, many times, Mr Kakar has told the nation that military courts can’t root out terrorism in the least.
“Neither the government nor any political party is trying to address the root cause of terrorism. Give the conventional criminal courts budgets, give them resources, give them powers; only then can we demand them to deliver. No one is serious about bringing in the necessary changes, that’s the truth.”
“Spend 1pc of what you spend on military on the judiciary, on judges, on prosecutors. Give them protection, give them safety, increase their number and only then you can blame them if they don’t deliver,” argued Asma Jehangir
When asked what the Parliamentarians did for past two years to bring in much needed reforms in the criminal justice system of the land, Mr Kakar said countless recommendations have been made by Senators via different committees of Senate. “But they remained that, mere recommendations. Nothing concrete was ever achieved,” his tone had a tinge of sadness.
Biggest problem? Corruption or terrorism?
“Some believe terrorism is the biggest problem of Pakistan but Mr Imran Khan of PTI differs. Mr Khan says corruption is the biggest problem of the country. Should you empower military courts to adjudicate corrupt politicians as well?” asked Jehangir.
Miss Jehangir also believes that the federal and provincial legislatures have chalked out their recommendation and sent it to the law ministry to bring in much-needed changes.
“You can’t bring such huge changes piecemeal. You have to amend Pakistan Penal Code (PPC), Criminal Procedure Code (CrPC), law of evidence and other substantial and procedural laws. Our legal system is only as good and as bad as India’s or Bangladesh’s. There are flaws, I admit, there is huge room for improvement but does that mean that we bring in military courts that are even worse?” she added.
Previously, in August 2016, Asma argued before Supreme Court that the accused has a right of a counsel of his choice and case record must be shared with him. The Bench, however, didn’t buy the claim that military courts contravene due process and hamper free and fair trial of the accused.
Extraordinary situation, extraordinary measures
Extraordinary situations require extraordinary measures, goes the time-tested, true sounding cliche. Extraordinary situation (Pakistan at present), extraordinary measure (military courts) saw more than 161 individuals given death sentences, 12 executions, 07 life imprisonments, and 106 other imprisonments of various durations of which no record is available according to data compiled by International Commision of Jurists (ICJ).
More than 90pc of punishments were handed down solely on confessions of the accused by military courts during the past two years. It is an abnormally high rate when compared by any standard, anywhere in the world.
Criticism was levelled on other counts as well. An all engulfing opaqueness of procedure of trial and no recourse available in shape of review or appeal available to the convict are among them. Those who’ve read the judgments by military courts, Asma Jehangir one of them, allege that they are cut-and-paste judgments sans legal insight or acumen.
Why the long faces, dearest legislators?
Let us get back to the original question that the title suggests:Why the long faces in parliament as senators green-lighted the extension to military courts? Doing the bidding of their political masters busy in realpolitik is one. The House of Federation, the Upper House, is a place where more sagacious, more informed, more detached debate is possible. And that is that. The senators debated their hearts out. The government benches called it a ‘necessity’, a ‘need of the hour’ and something that has to be accepted for time due to ‘extraordinary circumstances’. The opposition for their love of ‘Playing to the gallery’ blamed the government for its lags and lacks.
The sadness of politicians over the entire undertaking after their failure to legislate in the aftermath of the 21 amendment that was effected primarily because of the broken down condition of the traditional justice system strives hard to convince as practically nothing was done to reform the judiciary during the past two years beyond suggestions, recommendations, speeches, mudslinging, and the usual blame game.
May be if the politicians had moved the House in favour of much needed judicial reforms, especially considering the ‘sunset clause’ that came with the 21st amendment, then their posturing would have been justified for those who look up to them for representing and safeguarding their rights.
Since there is practically no chance, once again, that the judicial system would be up to scratch in the next two years, the question that begs a reply is why put another expiry date on the exercise and make parliament look silly and shortsighted once again?
Those disenchanted with the shenanigans of politicos and their inability to deliver ask that why not leave the amendment open ended just like the military operation which avows to continue till the last terrorism case is closed.
The only way out
“Spend 1pc of what you spend on military on the judiciary, on judges, on prosecutors. Give them protection, give them safety, increase their number and only then you can blame them if they don’t deliver,” argued Asma Jehangir.
“There is no doubt that huge improvements are needed in our system. But does that mean that we put in place a worse system?”
Will military courts become a permanent feature of our Constitution? Well, we have to wait another two years, or maybe four years, or is it six years? It is left to wild speculation and intense conjecture for now. The future wears a foggy look.
The opening para in bold text explains all. Asma Thakery is upset.
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