Daily Times

The 50 men whose death sentences were recently set aside by the Peshawar High Court would not have been alive had they been sentenced during the first two-year term of military courts when there was no right to appeal.

After militarisation of politics and politicisation of judiciary, militarisation of judiciary was the missing piece to complete the labyrinth of martial politics. The military courts that were inserted into the Constitution through the 21th Constitutional Amendment with a sunset clause of two years were later extended for another two years through the 23rd Constitutional Amendment.

It is mindboggling to think why were such extreme measures needed where there would be effective parliamentary or judicial check and balance?

So far, in four years of its existence, military courts have reportedly convicted 617 alleged militants, out of which 346 were given death sentences, while 271 were imprisoned. Only 56 of those sentenced to death have been hanged. A sizeable number of convictsreportedly include those who were arrested or disappeared about a decade ago.  Many were foot soldiers or compromised facilitators hardly comparable to the likes of Ehsanullah Ehsan.

In some cases, the accused were convicted for the crimes that occurred while they were incarcerated in interment centres.

In his speech in Swat in April 2018, civil rights activist Manzoor Pashteen mentioned one such case where a man was arrested in 2010 but executed for a crime that happened in 2014. Another similar case is of a young man from my village who surrendered to security personnel in April 2010 when he was 18-years-old. Hewas convicted for a crime that happened after his surrender. Before his surrender, he was arrested in May 2008 but was released after about a month.

To distinguish themselves from the PTI and redeem past compromises, the PML-N and PPP should reverse this constitutional anomaly

The 50 men whose death sentences were recently set aside by the Peshawar High Court would not have been alive had they been sentenced during the first two-year term of military courts when there was no right to appeal.  When one goes through a few such cases, it becomes clear that only some heads were needed to be rolled to justify the existence of the axe.

Perhaps, the politicos knew that eradication of terrorism required a change in the mindset that shapes and formulates relevant policies rather than the militarisation of the justice system, but failed to push for the right approach. And perhaps aware of this, PPP co-chairman Asif Ali Zardarihad warned PML-N supremo Nawaz Sharif that militarisation of the justice system could be turned into a noose for politicians too. However, ironically, our modified breed of politicos and democrats as usual easily forget these stark realities sometimes to get anextra pound of flesh and other times to save what they have gotten already. In the larger dynastic interests, both Sharif and Zardari, along with other petty democrats, swallowed the bitter pill without thinking that it could be turned into a permanent dose with dangerous side effects of neutralising the immunity of the metabolic system of the body politic.

One of the justifications for constitutionally creating a parallel judicial system was that the existing judicial system was inefficient, particularly to convict hardcore terrorists. And this ended up ruffling no feathers in the fiercely independent post Iftikhar Chuadhry judiciary.

Our lordships imbibed with the orchestrated popularity were out to fix governance. The outgoing Chief Justice went yards ahead of his predecessors to take on the inefficiency of whatever department came in his way.  He put the elected government to task for anything and everything except to reform the judiciary to enable it to try hardcore terrorists.

If there is a need for a third extension for military courts, what is on the plate of my outgoing lord? Is my lord happy to take the trophy of cutting to size the already strangulated civilian institutions? Very soon, my lord will realise that everything that glitters is not gold and popularity guarded by suo motu powers has no future.    However, in case of a reformed efficient judiciary minding its own business, my lord would have little or no time to fix hospitals, conserve water resources, construct dams and conduct fund raising campaigns to visit world capitals. Instead, he would have required to work and speak through his decisions.

But the politicos are also not letting go of expedience.  None of the compromises in the past had let the PML-N and PPP leadership totally off the hook, and neither is such a possibility likely to produce different results in future. Thus, sometimes it is better to say a decisive ‘no’ with a prospect of a glorious victory than a hundred affirmatives that lead to ignominious defeat continuously. This time, too, the PML-N and the PPP will carry the burden of its creation and second extension because everybody knows the status of the PTI. To distinguish themselves from the PTI and redeem past compromises, the PML-N and PPP owe it to reverse this constitutional anomaly.

Because this time they have solid counter arguments that there is no legal or moral justification for the extension of military courts on the following grounds:

Firstly, the security leadership repeatedly claims that terrorists have been defeated and peace restored, the country is no longer facing the so called ‘extraordinary situation’, therefore, there is no justification to curtail or usurp fundamental and constitutional rights of citizens through such measures.

Secondly, and most importantly, the Peshawar High Court’s verdict that trials by military courts do not meet even the least required test of due process, and are thus tantamount to miscarriage of justice.

The Parliament had given constitutional cover to the otherwise unconstitutional and extraordinary measure of setting up military courts. Now, the responsibility rests with it to evaluate these courts’ performance and contribution to the specified purpose, particularly in the light of the Peshawar High Court verdict. Instead of mulling over another extension, the Parliament should start work towards demilitarisation of the justice system.

The writer is an analyst and a freelance columnist

Published in Daily Times, January 19^th 2019.