Daily Times Editorial Jan 1, 2015

Growing controversy While Prime Minister (PM) Nawaz Sharif is trying to keep the consensus of the All Parties Conference (APC) on setting up military courts to try terrorists intact, the chorus of dissidence is growing. Amongst the political parties, the PPP, and particularly its Senators have voiced grave reservations regarding the step. Now ex-Chief Justice of Pakistan Iftikhar Mohammad Chaudhry, prominent lawyers and human rights activists have all added their voices to the dissidents. In sum, all the critics base their opposition on the following arguments or grounds. First and foremost, the critics argue that setting up military courts (which is what the euphemistically titled ‘special courts’ essentially are) in the presence of an independent civil judicial system goes against the basic structure of the constitution. Even if a constitutional amendment is passed (a prospect increasingly looking unlikely) to bring such courts into existence they say, such an amendment is likely to suffer a fate no different from that of the military courts set up in 1977 and 1999, which were struck down by the Supreme Court as contrary to the basic scheme of the constitution. Second, they voice grave reservations about opening the door to such courts, fearing their scope could end up being expanded against political and other dissidents (a fate not unlikely given that the anti-terrorism laws have turned out over time to be a convenient catchall for our ever-inventive police to lump any and all crimes in this basket for its own convenience and expediency). Although at the time of writing these lines the Senate has been graced with one of the PM’s rare visits to the upper house on the insistence of the opposition that he wind up the debate on the Peshawar tragedy, it cannot be assumed with any sanguinity that the government will be able to garner the two-thirds majority it needs in parliament to get any constitutional amendment passed. Particularly if parties like the PPP and ANP, initially supportive of the military courts in the APC but later voicing reservations do not support the measure in the upper house, the amendment could die a premature death. MQM is on the contrary now fully in support of the military courts proposal although it initially balked in the APC. Such is the state of consistency in our political landscape. PTI has yet to return to the National Assembly, and it has so far no representation in the Senate. All in all, a rather precarious scenario for the government’s efforts. The PM has presided over a meeting on Tuesday to review progress in the implementation of the National Action Plan. While addressing the meeting, the PM tried hard to reassure the critics, especially the political parties without whose support he cannot get the measure through, that the military courts would be confined to hardcore terrorists alone. He also emphasised that all institutions would scrutinise/examine cases thoroughly before forwarding them to the military courts. The PM dubbed it an extraordinary solution for an extraordinary problem, stressing the need for coordination between the federal and provincial governments to deal with terrorist financing. The sub-committee on this issue chaired by Finance Minister Ishaq Dar however found that the law enforcement agencies lack the wherewithal to track and investigate such financing channels. Mr Dar wanted the committee to look critically at charities that act as fronts for terrorist financing, focus on narco-trafficking and coordinate with international agencies to fulfil its task. The problem is that the government seems to have put all its eggs in the basket of the military courts without any fallback or alternative plan. If, as is being anticipated, the military courts cannot be set up through a constitutional amendment because of lack of sufficient support in parliament, the government could examine the option of amending other laws for the same purpose. But the problem with this option too is the likely legal challenges that may be mounted against any such measures, with the prospect of these too being struck down by the judiciary a distinct possibility. While conceding the need to take extraordinary steps to combat the terrorist menace, it must be pointed out that the threat did not emerge on December 16 as a result of the Peshawar attack. The country has been living with and suffering from terrorism for years (approximately 60,000 lives have been lost as a result) but successive governments have failed to realise the need to reform the civil judicial system, particularly the anti-terrorism courts, to deliver against terrorism. But why indulge in all this angst about what is a pattern in our national existence: always attempting to shut the stable door after the horse has bolted?