MILITARY COURTS AND CATASTROPHY OF TERRORISM By Professor Abid Fazil Abbasi Dawn Pakistan has been in the state of political instability, social discrimination, and economic inequality since her inception. Theological disparity casted shadow on all aspects of nation’s development. The first constituent assembly could not consolidate various institutions of Pakistan. Constitutional development of Pakistan passed through many perils and predicaments. Imbalance among various institutions of Pakistan gave birth to civil-military clashes. Judicial system of Pakistan has been packed with ideologues from top to bottom. Any attempt at changing this balance have been fought vehemently from within and outside by the religious right of the country. Pakistan emerged as a ‘security state’ instead of ‘welfare state.’ It casted devastating effect on our political arena and civil institutions got weakened. Catastrophic results of delaying and lingering cases by the civil courts made the importance of judicial system skeptical. Political parties, civil institutions and civil rule couldn’t fulfill people’s expectations. This gap was filled by military bureaucracy and with the passage of time it strengthened its grip over entire governmental hierarchy. Ayub Khan’s Martial Law gave very clear message to the political leaders that they had failed to steer country out of quagmire of political, geographical and security intricacies. Bhutto and Nawaz Sharif set military courts to counter threats to their governments. Living in the age of ‘Complex Interdependence’ all countries suffered badly after 9/11. Terrorism became core issue for the entire world. Pervez Musharaf decided to fight the war of terror. Law and enforcement agencies of Pakistan tried hard to fight against militancy and to cope up with the escalating terrorism and rampant attacks in all parts of country on civil and military people. Black sheep with in all institutions of Pakistan provided assistance to the terrorists. In the aftermath of the Peshawar massacre, talk of the national counterterrorism plan has been at the fore of the country’s polity. In that discussion, the issue of military courts has emerged as the most debated and focal issue. Just when all the political parties, with some reservations, agreed to the setting up of special/military courts in the All Parties Conference (APC), the modalities and concerns about these courts have been voiced owing to the history of military courts and civil-military balance in Pakistan. I have always been a strong proponent of ‘justice hurried is justice buried’ and opposed parallel justice systems. I also believe that the military has no business doing the civilians’ job because, for one, they are not good at it and, two, this erodes civilian institutions’ ability to build capacity. I am also apprehensive of these arrangements because of Pakistan’s history where such tribunals and courts have been used as instruments of persecution against nationalist, progressive and democratic forces that challenged the tyranny of the state through peaceful, political means. Having said that, I also realize that these are special circumstances. Civilian courts have failed miserably to bring the Taliban and other Islamic extremist terrorists to task. More than two thousand terrorists were released by the courts. If the history of this type of terrorism is anything to go by, severe punishments have to be part of any effective counterterrorism strategy. Fear is often cited as the reason behind the ineffectiveness of the justice system against terrorists. But this is half the story. It is time to face the facts. Rather any change in the prevailing judicial system was seen against the interest invincible powers. Two such attempts were made. First, in 1995, when Benazir Bhutto appointed some non-right-conforming judges and, second, in 2008, when again the PPP government tried to induct non-right-conforming judges in the apex judiciary. On both occasions, the judges were quickly sifted out from within under the pressure created by right wing, extremist leaning political forces on the outside. To eradicate the root of the problem, the PML-N agreed with the PPP in the Charter of Democracy that the appointment of judges would be carried out through a parliamentary commission, a step that was bound to make the courts more representative of a cross-section of society. However, when the time came, the PML-N backed out of this and the courts under former Chief Justice of Pakistan Iftikhar Muhammad Chaudhry (considered sympathetic to the PML-N and terrorists), also blocked the idea and what came was a very toothless parliamentary commission. Thus, ever since the days of Zia, courts in Pakistan have been representative of one side of the political divide. This imbalance is dangerous for any country. For instance, in the US, successive presidents and governors of states appointed judges and thus the US Supreme Court or state courts offer a balance between liberal and conservative leaning judges. The same is the story with every other modern democracy in the world. This balance needs to be restored for a healthy Pakistan. What necessitates restoring this balance even more is the fact that this ideological tilt is actually leading to some elements in the judiciary who are considered favourable to Islamic extremists by the security apparatus of the country. These elements didn’t even allow Ayub Khan to act upon his secular agenda. If the problem of terrorism has to be dealt with in the long term through the long arm of the law, this balance has to be restored. However, these courts, for now, are the hand we have been dealt with. So amid the need for constitutional amendments and convictions, fear on the part of the judiciary, lack of a witness protection framework and this ideological leaning don’t allow state to eliminate terrorism. Moreover, inefficient correlation among law and enforcement agencies and outdated counter terrorism strategies have been proved futile. According to my considered opinion, the broader solution has to be as follows: Political parties should accept the setting up of military courts for the specific period. These courts should only be entitled to hear cases that involve religious extremism, bombings across the country or attacks on the armed forces in Khyber Pakhtunkhwa or FATA. During the limited period, it should be binding on parliament to come up with the judicial appointments and screening framework that ensures more representative judiciary under the supervision of parliament based on security clearance from the security apparatus. The Charter of Democracy can be a very good benchmark for ensuring courts are not ideologically tilted. Appointment of judges in lower courts during the last seven years should be reviewed by representative parliamentary committees in the same manner. Parliament should also amend laws ensuring witnesses and judges protection in terrorism trials. After the period, the military courts should give way to regular justice system under the amended laws and screened judiciary. Failing to do this, the government should resign, accepting the moral responsibility of the failure. Convicts should have a right to appeal in the Supreme Court where a larger bench should hear these appeals and decide on them in a period of eight to 12 weeks. The entire process should be overseen by a parliamentary committee that should have representatives each from the PPP, MQM and ANP. These are the parties that have a history of being persecuted by special courts in Pakistan for their political ideology and thus can have the most apprehensions vis-à-vis misuse of these courts. More importantly, these parties have a very tough stance against the Taliban and Islamic militancy, and can be trusted to ensure persecution of terrorists while blocking the misuse of these courts. Hangings, speedy justice and military courts will all prove to be short-term solutions. If the army is serious about solving the problem long term, the judicial system needs to be fixed. Anything short of that will be an eyewash. In the present scenario, serious differences emerged between the government and opposition over the formation of military courts to counter terrorism under the National Action Plan (NAP). The opposition believes that there is no need to bring amendments in Article 245(2) of the Constitution and the scope of existing military courts should be widened to deal with the menace of terrorism. Talking to journalists outside the Parliament House, Pakistan People’s Party (PPP)’s Senator Aitzaz Ahsan said that the constitutional committee set up on the matter of military courts has presented a recommendation that there is no need to amend the constitution for the establishment of such courts. The scope of existing military courts should be widened instead, he suggested. Especially the left-wing political parties don’t want army to get power over civil rule. Moreover, the senator said that the military courts’ authority to hold hearings would have to be curtailed. He said the draft presented by the government had allowed vast expansion in the powers of military courts. Instead, the military courts’ powers should only be provided a limited boost, he added. Ahsan warned against introducing an amendment in the constitution, saying such a step would open “some other “doors. However, he hoped that a consensus with the government would soon be reached on the issue of military courts. Furthermore, while initiating a debate on Peshawar school attack in the Lower House of the Parliament, leader of the opposition in the National Assembly Syed Khursheed Shah warned the government to avoid any kind of amendment in the constitution to establish military courts. “The government must avoid any amendment in the constitution, rather it should amend the Army Act of 1952 before establishing military courts,” the opposition leader said. “I would suggest that the government not take any controversial step which creates division among the political leadership of the country because a new door will be opened,” he said. “The basic structure of the constitution will collapse if the government amends it to establish military courts,” Shah warned. Meanwhile, Muttahida Qaumi Movement (MQM) MNA Abdul Rashid Godil said that Khyber Pakhtunkhwa Chief Minister Pervez Khattak admitted in a meeting that the provincial government received a letter regarding the threats of terrorist attacks on schools in Peshawar but failed to take security measures in this regard. He said that after the 18th Amendment, it is the responsibility of the provincial governments to take security measures for protecting the residents of respective provinces. “It is unfortunate that some political parties supported the Taliban in the past and made them an offer to open their office in the province. However, it’s good that the leadership of such parties have changed their stance,” Godil added. Addressing the 178th corps commanders’ conference at the General Headquarters on Thursday, Chief of Army Staff (COAS) General Raheel Sharif said the entire nation was looking towards political and military leadership of Pakistan to take bold and meaningful decisions leading to stern action against terrorists and their sympathizers. “As directed by the federal government, the chiefs of staff of the Armed Forces may convene as many special tribunals as may be necessary to try offences under the laws mentioned in section 2(1)(d), including the convening of tribunals of appeals to hear appeals against the decisions made and sentences passed by the special tribunals,” a draft document recommended for amendments in the Army Act 1952 says. “A special tribunal convened under section 2A, shall have the power to try any person including a person who is not a member of the Armed Forces who has committed any offence under the laws referred to in sub-clauses (iii)(iv) and (v) of clause (d) of sub-section (1) of section (2),” the document added. “For the trial offences under section 2(1)(d) as amended procedure provided in the Pakistan Army Act 1952 or the law under which special tribunal or the tribunal of appeals is constituted and the rules made there under shall apply.” “Where a person has committed an offence before the commencement of this Act, and the case relating thereto is pending trial in any court, the same may be transferred to a tribunal constituted under section 2A under a direction of the federal government,” the recommendation says. Under the recommended draft, an appeal against the final judgment of a special tribunal shall lie before a tribunal of appeals convened under section 2A. Moreover, copies of the judgment of the special tribunals shall be supplied to the accused and the public prosecutor or the defending officer free-of-cost on the day the judgment is pronounced, and the record of special tribunals shall be transmitted to the tribunal of appeals within two days of the decision. “An appeal under sub-section (1) may be preferred by a person sentenced to a tribunal of appeals within three days of the passing of the sentence,” the draft document says. Majority of the political leadership has reached the consensus that military courts are necessary to deal with the escalating terrorism. The parties who have been fallen prey to military courts are more careful in their proceedings in this regard. The credentials of military courts must be made focused on religious extremism and terrorism. Army also brought remarkable changes in its ‘Green Book’ and mentioned that the major security threat doesn’t lie on eastern borders rather the terrorism within the country and infiltration from the western borders are the major threats to Pakistan’s security. Army and other state institutions responsible for security should ruin all the hideouts of Taliban and terrorists indiscriminately. The festering illusion of good and bad taliban should be removed. All armed groups within the country must be disarmed whether they are fighting against state or not. Military Courts will obviously accelerate process of rapid judgements to sweep terrorism. Segments like Lal Masjid cleric Molana Abdul Aziz, Lashkar e Jahangvi, Hafiz Saeed etc must be dealt with iron hands. Though army had quite unpleasant experience of launching military operation against Lal masjid during Musharaf period because he was not supported by the entire political leadership. But now the situation is all the way around because all the political parties are focused to crush terrorism.
Posted on: Tue, 06 Jan 2015 17:21:35 +0000
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