Wednesday, March 8, 2017

Business Recorder editorial March 8, 2017

Military courts again The debate over dealing with terrorism cases seems far from over, despite the government’s claims that its proposal for the revival of military courts enjoys consensus in parliament. The PPP on the one hand, whose support for the 23rd Constitutional Amendment Bill to revive the defunct military courts is critical because of its majority in the Senate, and a PML-Q-led alliance with three minor parties on the other, have both come up with nine-point proposals on the matter. But whereas the latter alliance supports a tenure of two years for the military courts, the PPP wants them restricted to one year, with several other caveats. The PPP’s co-chairperson, former president Asif Zardari, has re-emerged on the national political scene after a long absence abroad by spelling out the PPP’s nine-point proposal. The PPP wants the military courts to be presided over by a sessions judge or additional sessions judge along with a military official. The appointment of the sessions judge should be made by the chief justice of the relevant high court. Zardari quotes past precedent for this semi-civilianisation of the military courts. The PPP also proposes that the accused should be given the right to have a defence counsel of choice, he should be produced before a court within 24 hours and the evidence against him be presented within the same timeframe. Further, the Qanoon-e-Shahadat 1984 (law of evidence) be enforced. The right of judicial review of military courts’ verdicts by the high courts under Article 199 should be ensured and such appeals decided within 60 days. These proposals are obviously aimed at safeguarding bare minimum standards of constitutionally guaranteed fair trial and due process, two aspects on which the military courts’ track record over the last two years leaves a lot to be desired. Hardly any military courts’ verdicts delivered during this period have been upheld on appeal on precisely these grounds. The PPP is also concerned about the general description of terrorism employed in the new amendment, in contrast with the language of the previous 21st amendment that first set up the military courts. Whereas the latter confined the military courts’ mandate to terrorism carried out on a religious or sectarian basis, the current amendment does not make this distinction. The PPP’s worry is that such a general description could open the doors to victimisation of political opponents and a witch-hunt. While the PPP’s proposals are a clever gambit to defang the summary and non-transparent nature of the military courts’ proceedings, there is no guarantee that another incident like the Army Public School massacre in December 2014, whose aftermath saw the military courts being brought into existence despite the reservations of the PPP and others, would not trigger another railroading of the 23rd amendment through parliament. The intention behind the two year sunset clause in the 21st amendment was not only to limit the tenure of essentially the extension of the Army Act over civilians, it was also meant to provide time to the government to usher in the reforms in the judicial system, particularly the anti-terrorism courts, which would make military courts redundant in future. Since the government did nothing in this regard, the end of the two year tenure revived the demand for the military courts, in a circular motion that shows no signs of ending. One year or two years, what would be the situation at the end of this period if the necessary judicial reforms have still not been carried out? Terrorism is not a phenomenon that is likely to go away soon, particularly since its roots in our society have struck deep over decades of the encouragement and support to jihadi proxies. Without the government and the judiciary taking on the responsibility for judicial reform, the military courts will never end, but rather demands for their revival will follow every ending of their limited tenure. Surely this is no solution. The government and the judiciary must grasp firmly the nettle of judicial reforms as a necessary condition for the reluctant resurrection of the military courts for as limited a tenure as possible.

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