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Military courts – eight areas of oversight

The decision to set up military courts has been criticised by human rights bodies as a ‘political blunder’, the harmful consequences of which will be felt for a very long time. That may be true but after parliament has allowed it the focus should be more on what measures are needed to ensure that military courts are not misused, the national consensus against militancy not undermined and nothing is said or done that signals a weakening of the national resolve to fight militancy. Here are eight areas of paramount importance for oversight.

First, we must not permit any expansion in the powers, scope and time-frame of military courts. It is a basic instinct that the more power one acquires the more one craves to have more of it. Even the court under Justice Iftikhar Chaudhry came to be was viewed as hankering after more power by taking over the functions of other institutions.

By its very nature power is encroaching. It is unrealistic to assume that the new-found power conferred in military officers will be any different. If the military courts feel frustrated with poor investigations and prosecution, which they soon will, there will be calls for more powers and a desire to bring the entire criminal justice system also under the military. Parliament must guard against the distinct but disastrous possibility of total militarisation of the criminal justice system.

Second, there is a need to chronicle the proceedings in military courts both for transparency and accountability. In the past, military courts have not allowed media coverage. A short and terse press release, usually not more than two lines, was issued after the verdict without any reasons for the verdict or reference to the defence pleas. While the protection of judges and witnesses is necessary, it is no less important to inject an element of transparency in the trials.

The proceedings of courts must therefore be properly chronicled by observers and experts for record – even if there is no media coverage. Comprehensively chronicling the prosecution’s narrative, arguments of the defence and the reasons for arriving at the verdict will not only help protect the military from undue criticism but also help develop a knowledge base for understanding issues in terrorist acts. It is only when all relevant information is chronicled and analysed that we can hope to understand better what drives militancy.

Third, only those cases should be tried in the military courts which fall strictly within the parameters laid down in the new law. Rules must be framed by the federal government beforehand for this purpose. In the absence of rules the constitutional amendment and the law are likely to be stretched far too far. Nationalistic political struggles in provinces must be handled politically and not in military courts.

Fourth, the government must concurrently implement other aspects of the counterterrorism National Action Plan particularly those relating to reforming the criminal justice system, curriculum reform and registration and funding of all academic institutions, not just religious seminaries. Failure to take a holistic approach and establishing military courts alone is adhocism and no lasting solution. That will only create space for extending military courts beyond the two-year period – making them a permanent feature of the criminal justice system.

Fifth, there is a need for greater clarity in the drive against the already proscribed organisations and those being banned now. The announcement made in the last few days in Washington, instead of Islamabad, about the decision by Pakistan to ban the Haqqani Network and JuD, among a dozen more militant outfits, has made the whole issue look mysterious. Coming as it did after Kerry’s visit to the GHQ it will only strengthen the narrative of the militants that Pakistan is fighting the war at someone elses’ behest and that this is not our war. Nothing could be more disastrous than strengthening this narrative.

Sixth, the government also needs to enforce the previous bans on militant groups and implement a March 2013 law that forbids the reincarnations of militant outfits in the garb of charity organisations. If the Falah Insaniyat Foundation is a reincarnation of Jamaatu Dawah (JuD) then neither the JuD nor its incarnation can be allowed to operate behind the façade of humanitarian work.

Seventh, if the NAP is a serious policy document intended to be implemented in letter and spirit we can neither ignore the publicly declared sympathisers of Daish and Al-Qaeda like Maulana Aziz of Lal Masjid nor permit outfits like Ahle Sunnat Wal Jamaat to hold rallies as it did in Chakwal recently. If banned groups flourish it will be seen either as lack of resolve or actual complicity and a continuation of the policy of running with the hare and hunting with the hound.

Public officials blaming militancy on foreign powers alone are also not very helpful. By shifting the blame to other countries we betray a longing for past policy when militant outfits were nurtured as levers for pursuing some secret foreign and security policy agendas.

And finally, the civilian political government must assume leadership role and give policy direction. Mushahid Hussain was right in lamenting during the last APC that the prime minister did not have fire in his belly. Those who created these militants and employed them for decades for projecting their power may now cherish playing a lead role in fighting them. The national leadership must consider setting up a truth commission to identify missteps by some in pursuing questionable security and foreign policy agendas through non-state actors so as to avoid the mistakes of the past.

The writer is a PPPP senator.

Email: fbabar786@gmail.com

Farhatullah Babar, "Military courts – eight areas of oversight," The News. 2015-01-23.
Keywords: Law , Law and Humanities , Criminal laws , Human rights , Military courts , Judicial process , Haqqani network , Counter terrorism , Al-Qaeda , Judges , CJ Iftikhar , Mushahid Hussain , Maulana Aziz , Pakistan , Washington , GHQ