The court’s conundrum

Providing enormous impetus to our resolve to fight terrorism in the country, last year’s unfortunate APS Peshawar attack indeed has been a sort of ‘game-changer’.
After this incident, parliament passed the 21st Amendment which paved the way for establishment of military courts in Pakistan primarily “for speedy trial of certain offences relative to terrorism, waging of war or insurrection against Pakistan and prevention of acts threatening the security of Pakistan”. Consequently, now nine military courts are functioning across the country to try a person who “claims, or is known to belong to any terrorist group or organization using the name of religion or a sect.”
Although the Supreme Court of Pakistan has formally validated the act of establishment of military courts, criticism of these courts hasn’t waned much in the country. Necessarily rejecting the extraordinary-circumstances-warrant-extraordinary-measures type reasoning, critics are finding it quite difficult to accord this ‘parallel judicial system’ with the tenets of human rights and due process of law. This may be the reason that some representative bodies of the lawyers have also announced that they will file a review petition against the recent verdict of the apex court.
While criticising these courts on any ground, one shouldn’t ignore two primary facts. First, like it is in Pakistan, counter-terrorism measures adopted by governments have been controversial and debatable all over the world. Therefore, anti-terror laws enacted and enforced by any country in the world have been open to general criticism.
Following the 9/11 incident, the US proactively reacted by taking some drastic steps, including the enactment of the Patriot Act and the Homeland Security Act. Like the Guantanamo Bay detention camp, it established more than some 100 secret prisons known as ‘black sites’ throughout the world outside the US territory and jurisdiction.
Similarly, anti-terrorism legislation in India like TADA and POTA, and the controversial Prevention of Terrorism Act, 1997 in Sri Lanka also indicate firm resolution on the part of their respective governments to crush insurgencies in these states.
Second, the critics of military courts should also keep in mind the very state of the criminal justice system in the country. According to Rule of Law Index 2014 released by the World Justice Project, Pakistan stands at 68th and 94th positions in terms of criminal and civil administration of justice respectively – among 99 countries around the world. It is quite worrisome that the judicial system of Pakistan is now only comparable to war-torn countries like Afghanistan and other least-developed countries of Africa. If a judicial system cannot promptly nab an ordinary criminal, how can it be relied to punish high-profile terrorists in the country?
Owing to certain lacunas in the existing criminal justice dispensation, the anti-state elements somehow manage to get away scot-free. This is the reason a known sectarian terrorist like Malik Ishaq could not be convicted by any criminal court for a long time.
If there are concerns that no person should be apprehended and detained in custody arbitrarily, then, at the same time, no person should also be allowed to deprive another person of his right to life arbitrarily. It is agonising that more than 50,000 Pakistanis have been mercilessly killed during the last couple of years.
The counter-terror measures adopted by the civilian government could not be extended beyond merely enacting some anti-terror law in the country. In order to contain the rising wave of sectarian terrorism in Pakistan, the Anti-Terrorism Act was promulgated in 1997. However, this law utterly failed to meet the counter-terror challenges faced by the country following the US invasion in Afghanistan in 2001.
Therefore, the much-debated Protection of Pakistan Act, 2014 was passed by parliament to help Pakistan curb this menace. This law somehow addresses the underlying issues necessarily associated with the very task of counterterrorism in Pakistan. But sadly, owing to lack of the required degree of political will, seriousness and resolution on the part of the civilian government, this law could not be enforced in the country in letter and spirit.
The government has hardly made any serious or sincere endeavours to set up special courts, a special prosecution agency or joint investigation teams required by this law. Nor did it make any arrangement to ensure the protection of judges, prosecutors and witnesses under this act. Instead, after the APS Peshawar carnage last year, it readily chose to make a constitutional amendment to establish military courts in the country. The government, as usual, shifted the burden of court trial of terrorists to the military. The civilian government is primarily responsible for the current criticism and confusion vis-a-vis the establishment of military courts in the country.
Aimed at ensuring the general quality of dispensation of justice in the country, the superior judiciary has been formulating National Judicial Policies for a long time. These policies include measures like fixing timeframes for the disposal of different cases, capacity building of judicial officers, guidelines for the efficient disposal of cases, eradication of corruption, improvement of the quality of investigation by the police, prison reforms, installation of video conferencing facility between the courts and jails etc.
Unfortunately, all these NJPs have failed to yield any fruitful results due to lack of sincerity on the part of the concerned stakeholders – the bench and the bar.
Ironically, various representative bodies of lawyers instantly challenged the formation of military courts in the apex court, and have been holding conventions and meetings to harmonise opposition against these courts. But these groups have not held any significant convention or conference to overhaul, or otherwise improve, the troubled judicial system so far. Seven months have passed since the establishment of these courts but no pragmatic plan has yet been evolved to switch this system back to normal.
We have just observed different sections of society demanding that the perpetrators of the recent child sex abuse case in Kasur should be tried in a military court. It is a fact that the general public is appreciating the formation and functioning of thes courts.
The apathetic and negligent attitude of our justice system created the administrative vacuum that was readily filled by the military. Therefore, now it is quite useless to shed crocodile tears over the demise of this ailing judicial system. Indeed, what cannot be cured must be endured.
The writer is a Lahore-based lawyer.
Email: mohsinraza.malik@ymail.com