Daily Times Editorial Jan 17, 2015

A done deal? The government and the military are at pains to argue that the military courts were a “last resort” and a “stopgap arrangement” because of capacity issues in the civilian judicial system. Thus the first quote above is from a statement from Prime Minister Nawaz Sharif from Riyadh, where he has gone on a private visit to inquire after the health of the Saudi monarch and hold discussions with the Saudi leadership. The second is from a talk by ISPR Director General Major General Asim Bajwa to the Royal United Services Institute in London, where the General is accompanying COAS General Raheel Sharif on his visit to hold discussions with the British higher authorities. The thrust of both explanations is that the military courts are a necessity in the context of combating terrorism after the Peshawar attack, limited in time and scope, and will be done away with after two years. While the setting up of military courts has been given legal cover through the 21st constitutional amendment and the amendment to the Army Act 1952, reservations about the measure are to be found lingering not only amongst the political parties that went along (some openly reluctantly) with the legislation, but also amongst thinking observers of the national scene as well as the Bar associations. The critics rely on the arguments that the military courts are essentially violative of the basic structure and provisions on fair trial and due process of the constitution and may lead to miscarriages of justice, particularly since no appeal lies against their verdicts, including death sentences. Since the moratorium on executions has been lifted, the critics fear innocents may be hanged on the basis of the summary procedures of military courts without a proper right to defend themselves and without any recourse to appeals. The Bar associations in particular are girding up their loins to challenge the amendments in the higher civilian courts. A right royal legal battle looms. Difficult as the case against a constitutional amendment passed unanimously by a two-thirds majority in both houses of parliament may prove, it may not turn out to be an open and shut case either. The mood of the judiciary is not positive, not the least because the entire blame for setting up military courts (even as an inescapable necessity in the extraordinary circumstances confronting the country) is being heaped on the heads of the civilian judicial system because of the mountain of backlog in cases and alleged tardiness and/or fear when adjudicating terrorism cases. A reflection of the ‘push back’ by the judiciary that feels it has unfairly been put in the dock on the issue are the statements in court by Supreme Court judges Justice Asif Saeed Khosa and Justice Jawwad S Khwaja. Hearing separate cases on separate benches, both honourable judges of the apex court expressed their dismay and irritation at the judiciary being blamed for the conundrum. In parallel remarks, both judges squarely laid the real blame on the executive/government on a number of counts. First and foremost, they were of the view that the backlog of cases invited the appointment of more judges (some higher courts are still under even their sanctioned strength) but the executive always pleaded scarcity of resources for avoiding the same. Justice Khwaja went so far as to argue that if this trend persisted, far from reducing, the mountain of backlog would only increase. While Justice Khosa seemed to be referring to the prime minister’s remarks during a meeting with President Mamnoon Hussain that criticised the performance of the judiciary in reminding the executive that it would have to fulfil its obligations and responsibilities (instead of shifting the blame), Justice Khwaja referred to weak prosecution, lack of protection for witnesses, prosecutors and judges as the reason why, despite being incarcerated unjustly for years on end, the accused finally had to be acquitted by the courts in conformity with the law since the case against them could not be proved. Those who may have complacently been relying on the seeming consensus on the amendments and the consequence of setting up military courts as a result may be in for some rude shocks. The legal challenge could create difficulties for the government and the military. Challenges to the verdicts of the military courts, despite being debarred, may also follow. Were these developments to unfold, the consensus could prove ephemeral. No ‘done deal’ here necessarily.