Daily Times

Debate on the necessity of military courts has revived after the recent 4-1 verdict of a 5-member bench announced in the form of a short order on 23 October. Though detailed judgement is awaited as of today the Ultra Vires tag on Section 2(1) d and Section 59 clause 4 of PAA has practically barred the trials in military courts. According to one of my lawyer friends, an expeditious appeal against the verdict by the government of Pakistan is the most appropriate response amid the obvious negative effects of the counter-terrorism drive. The reasons behind the establishment of military courts are still alive and provide a logical base to lodge the appeal.

The recurrence of attacks in Baluchistan and KP provinces is a stark reminder that war against the terrorism is not yet over. Advocacy for the ideal constitutional model of a fair trial remains valid in principle but arguments isolated from ground realities usually distort the opinions. It is precisely happening in Pakistan on the issue of military courts. A balanced stance on the sensitive issues of judicial supremacy, fundamental human rights and security compulsions is better than a rhetorical course. Before imposing a blanket ban on the trial of civilians in military courts, one should comprehend the origin of this practice. Brainstorming in silos about fair trial procedures and the rights of an accused will be an unfair approach towards the precarious security dynamics of Pakistan.

The reasons behind the establishment of military courts are still alive and provide a logical base to lodge the appeal.

The extraordinary challenge of foreign-sponsored terrorism, weaker rather dysfunctional policing, unreliable prosecution system, meagre forensic facilities and traditionally slow-paced judicial procedures are the real reasons behind the reliance of the state on the institution of armed forces. State’s unavoidable desperation for resolute counter-terrorism operations, rapid prosecution and unhindered swift sentencing of terrorists is the raison deter of armed forces’ lead role in the war against terrorism. Understandably, military courts are an essential part of the overall security scheme of the state.

Let’s be clear that counter-terrorism operations and swift trials of anti-state elements in military courts, in addition to the traditional task of border defence, put the extra-ordinary load on armed forces. Simply put, the extra-ordinary challenge confronted by the state justifies the extraordinary measures. Armed forces, being a national asset, providing its best of resources to secure the country as and when tasked by the state.

Lead role of armed forces in counter terrorism drive including trials of terrorists in military courts may not be an ideal arrangement for few advocates of Utopian state but their criticism appears grossly misplaced once judged in the context of prevailing gaps in prosecution and judicial system. Obviously, long term solution lies in the capacity building of weaker institutions, however, an abrupt step like ban on trial of civilian accused of terrorism is liable to serious consequences. Few pertinent aspects merit collective attention of all those who are visualizing the short judgement of SC bench with different lenses.

One: Pakistan Army Act (PAA) is a parliament approved piece of legislation fully in line with the constitution and international conventions. It guarantees fair trial, right of appeal, hiring of defending lawyer and subsequent judicial review to the accused.

Two: Practice of trials in military court was validated by a full court of SC with no objection on any of the sub clause of Sections 2 and 59 of PAA in 2015.Here a question rightly arises that how the verdict of smaller bench (4-1) can dislodge the endorsement of a full court to the trial of civilian accused in military court.

Three: Trials of civilians in military courts under extra ordinary security compulsions to seek the swift justice is not an alien concept. Many European, South Asian, Middle Eastern and African countries have subscribed the idea including USA, Turkey, Russia, India, KSA, Iran and Israel.

Four: How badly this verdict can affect the prosecution of high profile terrorists? Blanket ban on trials in military court is likely to undermine the counter terrorism drive. This aspect alone merits lot of deliberation in the context of surging terrorism. Obviously, an arrested terrorist would feel relieved for being prosecuted under a lousy and almost dysfunctional system. System gaps would offer guaranteed impunity to hardcore terrorists.

Five: Political motives behind activism against military courts have added more twists in this issue. How state or for that matter judiciary can differently tackle the attack by TTP or any political group? There has to be a uniform scale to deal with the security challenges. Meaningful support of two drifted lawyers of PPP to the former PM and his supporters, who have been accused of coordinated attacks on military installations, reflects negatively on thier intentions. There is method in the madness.

Six: Internal security of armed forces is also at stake. Civilians serving in military installations cannot be kept out of the PAA jurisdiction due to high risk of espionage, mutiny, sabotage and subversion.

Obviously, settled issue of trials of civilian accused in military courts is being exploited for vested interests at the cost of national security. This cost is not affordable for Pakistan. Honor and collective wisdom of the judiciary is also at stake. Military courts function within the constitutional frame work, provide much needed support to judicial system and swiftly conclude the cases of hardcore terrorists. Nation expects an appeal from government to seek the restoration of PAA in post 23 October form. Hopefully, bench of apex court will accord more weightage to the security compulsions over least relevant factors.

The writer is a freelance and can be reached at sikandarnoorani @yahoo.com