Viewpoint: The military courts debate

No issue has generated as much confusion and controversy in this country as has a hesitant go-ahead the recent parliamentary parties’ meeting gave to a government proposal for the establishment of military courts to try terrorists. The main opposition parties, the PPP and the PTI, which along with others accepted the proposal to make a constitutional amendment, albeit with a sunset clause, are now having second thoughts. Even when the meeting approved the proposal it had stopped short of calling military courts by their correct name, describing them instead as ‘special courts to be manned by military personnel.’

The government though is still insistent to stick to its position. Federal minister Ahsan Iqbal told journalists on Monday that work on the National Action Plan is in progress, expressing optimism that a consensus will soon be reached on military courts. Critics point out that the Nawaz League is in the habit of outsourcing its problems to the soldiers. It formed military courts during its previous stint to deal with unrest in Karachi inviting the Supreme Court’s intervention to declare those courts unconstitutional. Once again, it has failed to fulfil its own responsibility. Prime Minister Nawaz Sharif has little to show for his efforts vis-à-vis countering terrorism since assumption of power eighteen months ago. An urgent and easy thing to do was to curb terror financing, but no action was taken. As if a new discovery has been made, Finance Minister Ishaqe Dar announced on Tuesday, ie, two days ago, certain measures to block foreign funding for terrorist organisations. The National Security Policy, which was to be implemented by the National Counter-Terrorism Authority (NACTA), remained in cold storage because of lack of interest and a turf tussle with the soldiers who wouldn’t want to work in a joint intelligence directorate unless they sat in the driving seat. In that case, it is all the more intriguing why should the government hand them a role that strictly belongs to the civilian courts.

Extraordinary situations call for extraordinary measures, says the PM and other advocates of trying people in military courts. Indeed, the country is at war. The soldiers are fighting religious extremists who pose an existential threat to the State, and have killed an estimated over 55000 Pakistanis. In traditional wars, captured enemy soldiers are kept imprisoned by military authorities until the war’s end, to be returned to their countries. The enemy in the present situation is not going to go anywhere and hence has to be dealt with in a way that ensures security of this State and society. There is a national consensus on that this enemy has to be defeated through military means. In other words, unlike the Baloch insurgency, which is a political problem needing a political solution, this is a military problem. These people are combatants, not civilians. Like soldiers, the TTP warriors and their sectarian allies are in the business of killing and getting killed in the line of duty their cause asks of them. Therefore, they can be tried by military courts.

But the rationale behind the government proposal is that the existing anti-terrorism courts have failed to deliver because of a fear of reprisals. Supporters of military courts point to various instances where judges felt intimidated enough to avoid trying terror suspects. In one instance, an accused openly threatened the judge, saying he knew where his children went to school. Suspects routinely get acquittals also because the prosecutors lack the capacity to prepare cases that can stand scrutiny in courts. Thanks to decades of official patronage of various types of violent religious extremists, this enemy has facilitators, supporters and sympathisers all over the country making the effectiveness of witness protection that much harder. As for the judges, objectors contend that uniformed presiding officers ‘manning special courts’ would be as much vulnerable to terrorists’ threats as are civilian judicial officers. Why then bring them in? Military courts most likely would hold their proceedings in controlled environment where protecting judges’ identity won’t be so difficult.

Responding to criticism of military courts, the Prime Minister while presiding over a meeting on the National Action Plan said “all institutions will carefully scrutinise cases before prosecution in special military tribunals” suggesting thereby that each case is to undergo civilian scrutiny before trial by soldiers. He added that only cases of terrorists involved in mass killings and attacks on troops would be referred to military courts. In fact, military courts have already been trying suspects involved in attacks on military targets. Those who have been hanged during the recent days were all convicted by military courts. What is different about the proposed constitutional and legal amendments is that religious and sectarian terrorists as well as those accused of abetting and financing acts of terror are also to be tried by military courts. Without a doubt, all such elements ought to be brought to justice. Religious and sectarian extremists have a nexus with the TTP combatants, and are just as murderous. ATC judges have been too scared to try them. The judge who handed death sentence to governor Salman Taseer’s assassin had to leave the country as soon as he announced the verdict.

But, as Senator Raza Rabbani averred in his angry rejection of the idea of military courts trying civilians, these tribunals could lead to miscarriage of justice as they apply different standards of proof and offer fewer protections to the accused. This society must never compromise on its standards of justice, no matter how difficult the circumstances may be. The present situation is a test of our commitment to principles of justice that require adopting proper legal procedures. The right to fair trial has to be respected.

That may not be easy, but is doable. Witnesses need to be provided proper protection. The precedent of giving fake identities to witnesses is unfeasible in our situation; evidence through voice-distorted video conferencing should help. The judges and their families must be given security. Considering that in a major city like Lahore there are about 17 ATCs the overall number should not be too large to be unmanageable. If various politicians and their families can get security so should the judges putting their own and families lives on the line. After all, this is an extraordinary situation calling for extraordinary measures.

Saida_fazal@yahoo.com