Daily Times

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 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 progressive and democratic forces that challenged the tyranny of the state through peaceful, political means. Having said that, I also realise that these are special circumstances. Civilian courts have failed miserably to bring the Taliban and other Islamic extremist terrorists to task. 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. The problem is that ever since the Zia days, the judicial system of Pakistan has been packed with ideologues from top to bottom. Any attempts at changing this balance have been fought vehemently from within and outside by the religious right of the country. 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), 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 appoint 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. 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 convictions, fear on the part of the judiciary, lack of a witness protection framework and this ideological leaning, what is the solution?

I am not a legal expert but as a political observer to me a broader solution has to be as follows: political parties should accept the setting up of military courts for a period of six months. These courts should only be entitled to hear cases that involve bombings across the country or attacks on the armed forces in Khyber Pakhtunkhwa or FATA. During this six month 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 six months, 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 three member parliamentary committee that should have one representative 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.

The author can be reached on twitter at @aalimalik