Monday, January 9, 2017
Business Recorder editorial Jan 7, 2017
Sunset clause kicks in The military courts set up under the 21st Amendment and the Pakistan Army (Amendment) Act 2015 came to an end on January 7 under the sunset clause limiting their life to two years. These military tribunals were brought into existence on January 6, 2015 to try civilians on terrorism charges in the aftermath of the Army Public School Peshawar massacre. Both houses of parliament voted unanimously for the legislation despite the apprehensions among parliamentarians that the military courts would not ensure due process and amounted to appointing a parallel, non-civilian judicial system that could undermine the democratic order. Fortunately, apart from the sunset clause limiting their life to two years, military courts’ verdicts were left open to judicial review on appeal. As it turned out, these fears were not without foundation. Interestingly, the demise of the military courts passed without comment from the government or the army. Interior ministry sources reportedly said terrorism cases in future would revert to the anti-terrorism courts, mandated to conduct speedy trials (although that has hardly happened in the past). Apparently, amidst speculation on the eve of the sunset clause kicking in regarding a renewal of the military courts, the interior ministry made a belated and half-hearted effort to have them continue, but the ground realities were stacked against the attempt. For one, the ‘consensus’ around the military courts’ setting up needs to be understood in the context of the very emotional national reaction to the ruthless massacre of schoolchildren and their teachers in the Army Public School Peshawar. The sense at the time was that ‘something must be done’ against these barbaric fanatics who did not even hesitate to mow down schoolchildren in cold blood. The wisdom at the time also was that the civilian judicial system was broken and unable to cope with the requirements of the struggle against terrorism. There was also the track record of the anti-terrorism courts to lend weight to this argument. Although required to hold daily hearings and decide terrorism cases expeditiously, these courts soon succumbed to the universal inertia of our judicial processes, not to mention the whispered fact that judges, prosecutors, witnesses and the police lived in fear of retaliation by the terrorists in such cases. In the absence of adequate protection to all these and the singular lack of a witness protection programme, it was no surprise that the performance of the anti-terrorism courts was disappointing, to say the least. The two year limitation period for military courts was supposed to be used to promulgate the judicial reforms required to fix the broken system and demonstrate thereby that no parallel military judicial system was necessary any longer. However, as is often the case with our good intentions, they only served to pave the way to hell. That certainly proved the case as far as the envisaged and hoped for judicial reforms were concerned. The idea sank without a trace, leaving people wondering at the end of the military courts’ life what on earth the government had been doing on this score during these two years. The short answer is, nothing. The result is that we have once more fallen between the two stools of the unmourned defunct military courts and the dysfunctional judicial system, including the anti-terrorism courts. The military courts had 275 cases referred to them during their two year tenure. Of these, death sentences were handed down in 161 cases, jail terms, usually life imprisonment, in 116. There have been a total of 12 executions. As reported, 27 cases saw appeals against the military courts’ verdicts on the basis that the accused had not received a fair trial guaranteed to them under Article 10 A of the Constitution, had not received copies of the verdicts against them, and had not been given the opportunity to engage defence counsel. Most cases were heard in-camera, lacked transparency, and were thus unlikely to follow due process. The military courts’ 90 percent conviction rate too points in this direction. A whole plethora of terrorism cases and organisations were taken up, but did not meet the expectations that some quarters might have harboured for them. Now that we are poised in a calmer time with terrorism having received body blows from Operation Zarb-e-Azb and other actions, we can more coolly and unemotionally judge the way forward. It has been a tendency in the past to seek expedient, ‘quick’ solutions for difficult if not intractable problems. The inefficient snail’s pace at which justice is dispensed by our judicial system, when it is dispensed at all, lends itself to such thinking. But the experience of the military courts, and arguably the anti-terrorism courts too, indicates that quick fixes are superficial illusion. What is really needed is a deep look at what ails the judicial system entire, as well as the anti-terrorism part of it, to come up with rational reforms that pave the way towards restoring functionality and efficiency to this broken machine. Both the executive and the judiciary, apart from stakeholders like the lawyers community and the general public, should be involved in a national debate to arrive at solutions that work, not illusions that unwind with time.