Daily Times

While the use of military courts for terrorism trials is no doubt a necessity in present conditions, it sets an extremely undesirable precedent, the fallout of which civilian institutions must be prepared to combat. The 21st Constitutional Amendment, as it amends Article 175 of the Constitution, excludes the application of the jurisdiction of High Courts and the Supreme Court (SC) to persons being tried under the Pakistan Army Act 1952, the Pakistan Air Force Act 1953, the Pakistan Navy Ordinance 1961 and Protection of Pakistan Act 2014 for terrorism. This means that if a person is accused of terrorism and is being tried under the aforesaid statutes, he or she shall have no recourse to the superior judiciary. Predictably, the amendment comes with its own sunset clause whereby the amendment will cease to have effect after a period of two years.

No amount of legal meandering can change the fact that this means a regression on the part of the state’s civilian institutions but the real question is: who is responsible for this regression? In my opinion, the blame must lie with the judiciary itself and, in particular, the politics of the Iftikhar Chaudhry-led SC of Pakistan. Why? Because SCs anywhere earn their prestige not by the powers granted to them on paper but the decisions they take to resolve the pertinent issues of the day. A bad decision in the Dred Scott case saw the SC of the US lose all credibility, leading to the US civil war. While the Chaudhry court was criticised widely for its activism, it was largely its inaction on the terrorism front that saw terrorists being let off the hook, creating the vacuum the military will now fill.

The Chaudhry court had a clear right wing bias that is painfully apparent in many of the causes it took on in its Article 184(3) jurisdiction. The obscenity petition emanating out of letters by late Qazi Hussain Ahmad and Justice Retired Wajihuddin is a case in point. Pakistan’s SC wasted countless hours determining whether or not television programming in the country is obscene. When the Chaudhry court was not busy playing the role of custodian of Pakistan’s moral wellbeing, it was busy beating down on the fragile democratic government at the Centre. The Memogate scandal and the court’s handling of it was another example of how the court was obsessed with smashing the PPP government. It was not — as some scholars contend — a case of making a scapegoat out of a single individual, in this case Husain Haqqani, to save the system, which in itself would be of questionable legality but was a case of a failed phishing expedition. In the end, the court only undermined its own credibility by taking up the issue in the first place.

In its vendetta against President Musharraf, presumably the court was ready to let even the vilest and most unsavoury characters off the hook. In April 2009, soon after being restored, the Chief Justice (CJ) let Maulvi Abdul Aziz ofF the hook despite overwhelming evidence of insurrection against him. The lawyer representing Abdul Aziz was elevated to the Islamabad High Court (IHC) bench despite his partisan affiliation. Meanwhile, when the Innocence of Muslims saga emerged on YouTube, CJ Chaudhry, in a civil miscellaneous application in the obscenity petition, charged officials of the Pakistan Telecommunications Authority (PTA) to perform their duty as Muslims and block all offensive materials. The government continues to hide behind this order while denying the people of Pakistan the benefits of YouTube. The sum total of Iftikhar Chaudhry and his court was that the elected government was put under tremendous pressure to survive, unelected institutions had an upper hand over elected ones and terrorists roamed free with impunity. It has been a disillusioning experience for those who participated in the lawyers’ movement, assuming that it would lead to a society based on rule of law.

The Chaudhry court’s decisions were reflective of radicalisation of our middle class. It is this radicalised mindset that has been responsible for tolerating intolerance, bigotry and terrorism for so long. This made the so-called independent judiciary a part of the problem instead of the solution. Military courts, therefore, are expected to fill in not just a competence vacuum but an ideological one as well. It is expected that military courts will not be swayed by public opinion, radicalised as it is, and will be driven by supreme national interest instead. This of course begs the question as to whether uniformed officers presiding over military courts would be better judges of supreme national interest. The proof of the pudding has to be in the eating.

What is certain, however, is that Pakistan’s civilian judiciary has two years to plan and take back the space that it lost through the 21st Amendment. This will require not just an overhaul of the infrastructure of the criminal justice system but careful selection of future judges. Those candidates with affiliations with sectarian or terrorist organisations should never be allowed to be inducted as judges. The training of judges should focus not just on procedure but the main component of judicial training should be sensitivity to human rights, minority rights and women’s rights. Individuals who place their own narrow worldviews over the theory of law and human rights must be shunted out through a process of checks and balances. Ultimately, however, a legal system is only as good as those who enforce it. It is about time civilian law enforcement agencies are trained on scientific lines. Only a judiciary working in tandem with law enforcement agencies will be able to effectively replace military courts for terrorism cases, or else expect the 21st Amendment to be extended through another constitutional amendment in 2017.

The writer is a lawyer based in Lahore and the author of the book Mr Jinnah: Myth and Reality. He can be contacted via twitter @therealylh and through his email address yasser.hamdani@gmail.com