by Javeria Younes
The year 2014 bids us adieu, as the government of Pakistan gears up to set up military court “come what may”. The military machinery at GHQ is at full swing these days as hurried consultation between the government and the military officials take place over amendments in the constitution to pave way for the arbitrary military courts.
The establishment of military that came in the wake of Peshawar school attack has send jitters down the common spine of the civil society. The unconstitutional move by the Government is touted by the state as a “necessary evil” to counter terrorism. The military court shall be established once the Constitutional (twenty-first) Amendment Bill, 2015 is passed from the National assembly.
If History be a witness, this is not the first time that such drastic steps are taken, earlier in 1977 and 1998 military courts were established which were subsequently termed unconstitutional and struck down by the Supreme court of Pakistan. The Military courts are against the basic foundation/structures of the constitution as constitution envisages a separation of power amongst the pillar of the state i.e judiciary, executive, and legislation. Giving any single faction of the state all-encompassing powers runs against the provisions of the constitution of Pakistan. Criminal justice system in Pakistan has been on the verge of collapse for quite some time. The conviction rate being a paltry 4%, due to non-protection of witnesses and prosecution many witnesses would recant their statement resulting in acquittals of the criminals like Mumbai attack mastermind Zakiur Rehman Lakhvi.
The established constitutional principal dictates, that military tribunals be subordinate to the civilian appellate court and not vice versa; the right to appeal vest with the civilian judge. The establishment of military court will take away the fundamental rights that are guaranteed under the constitution and are non derogable under any circumstances. The procedure followed by the military court does not strictly adhere to the dictates of equality before law and places the burden of proof on the accused to prove himself innocent which is against the principal of criminal justice “innocent until proven guilty” The trials by the military are often rushed. This circumvention of the due process often results in miscarriage of justice. As these courts do not follow any precedence their proceeding often kept a secret, it is only natural that their transparency and conviction will always be questioned. The procedure of military court is such that the complainant, prosecution and judge are all military personnel with little or no legal background. The summary court procedure allows little room for the poor accused to defend himself and is not allowed a counsel. The alleged accused is deemed a convict ab initio, thus there is a slim chance of him being acquitted.
The draft Constitutional (twenty-first) Amendment Bill, 2015 will replace the word” a judge of the court, as provided in the article 212-B of the constitution, with a military officer. The article 212 B states
“(3) A Special Court shall consist of a Judge, being a person who is, or has been or is qualified for appointment as, a Judge of a High Court and is appointed by the Federal Government after consultation with the Chief Justice of the High Court.”
Many political parties like PPP,MQM and ANP have been reluctant to support military court, the premier Mian Nawaz Sharif has a penchant for supporting and establishing military court as during both his previous tenure as prime minister he had established military courts to gain grounds with the military with whom he has always had a strained relationship. Military courts tend to usurp the jurisdiction of all the civilian courts including Supreme Court. With the enactment of the Constitutional (twenty-first) Amendment Bill, 2015 into law the Anti-terrorism court will become redundant. The pillars of state will once again be at loggerhead as we have seen earlier during General Musharraf’s era. Thought his time the government shall be establishing these court by making amendments in the constitutional, the legal experts opine that the constitutional armor is no guarantee that it will not be termed unconstitutional and rejected by the apex court. The establishment of parallel judicial system with the sunset clause of 2 years will do little to curb the menace of terrorism. Historically too military courts are notorious to have heralded dictatorship in the years 1977 and 1998. It is then the whim of the military dictator to stay in power as long as he wants. In the famous case of Sheikh Liaquat Ali (PLD 1999 Supreme Court 504) a full bench of the Supreme Court, headed by then chief justice Ajmal Mian, had declared as unconstitutional and illegal the setting up of military courts. The judgment stated that the civil authorities as well as the security forces could not act outside the parameters and limits enshrined in the Constitution
The failure of our policy makers becomes more evident with each carnage, instead of addressing the root of the problem and overhauling the whole system they make policies to bypass. Opting instead, to make parallel systems within the justice system that tend to make matters worse. Not only it is against the right of fair trial as provided in ICCPR article 14 and 16 it is against the fundamental right of fair trial and due process as enshrined in article 10 A of the constitution of Pakistan.
The ostrich syndrome ailing our policy makers has eroded the public’s confidence in the judiciary. The judges themselves are demoralized by the continuous derailment of the judicial institution. The state having no policy framework to tackle terrorism resorts to the military who in turn usurp rights of the civilian fuelling more hatred for the state and sympathy for the Taliban. As we bid adieu to the eventful year 2014 the government prepares to impose military dictatorship under the guise of military court. The basic fundamental rights of the common man have been traded, with the promulgation of draconian laws like PPO and establishment of military court, for security and safety of the political elite.
It is high time that the government invests in the judiciary and promulgates witness and complainant protection laws to allow judicial system to function smoothly. Setting up of parallel legal system like military courts cannot and will not address the problem of terrorism. The criminal justice system of Pakistan needs major overhauling and immediate attention of the state’s policy makers. Any judicial system that is applied selectively to punish the poor man for petty crime while allowing the elite to get away with murder will never sustain. The statement of Asif Ali Zardari that he made during his speech is worth noting where he sought assurance that the politicians would not be brought to the military courts. There appears to be no end in sight for the common man to seek appraisal. The political and military elites in connivance will continue to evade accountability, framing fractured internal policy while hoodwinking the masses into believing that it is for their own good.
Advocate Javeria Younes: a social activist and legal researcher who endeavors for an egalitarian society free from torture. Her research titled “Custodial Torture Its Ramifications And Failure Of Institution” has been published under the auspice of Asian Human Right Comission (AHRC).She can be reached at javeria.younes@live.
