Daily Times

The Chief of Army Staff (COAS) General Raheel Sharif has ratified the death sentences handed out to five more terrorists, as well as a punishment of life imprisonment handed out to a sixth. The convicts were all, in the parlance of the Inter Services Public Relations’ (ISPR’s) brief, “hardcore” members of “proscribed organisations” and their activities were spread throughout the country. As with all other cases pertaining to the military courts, which were set up under the provisions of the controversial 21st amendment to the constitution giving the military the right to put civilians on trial under “special circumstances”, there is little scope to independently verify the veracity of the information presented to the public. However, any hope opponents of the 21st amendment had to have military courts struck down have now dissipated after the Supreme Court (SC) declared the amendment constitutional in a landmark 11-6 judgment in August. But even if one is convinced of the need to have military courts due to the extraordinary spread of extremism in the country and the failure of the judicial system to hitherto convict known terrorists, the highly secretive and arbitrary nature of the military courts opens their credibility to scrutiny. The aforementioned SC verdict had a crucial caveat that held that while military courts were legal, any order passed or sentence awarded in these trials will be “subject to judicial review on the grounds of coram non judice, being without jurisdiction or suffering from mala fide”. Basically, this means that the SC has partially brought the military courts under its purview by establishing limited grounds for appeal on procedural grounds. The right to appeal any court’s decision is a universal and fundamental right, and this should encourage more accountability of the military courts on matters of due process. Already we have seen this kind of judicial review bear fruit in the case of Haider Ali, whose execution has been stayed by the Peshawar High Court because he was only 14 at the time of his arrest and was held in secrecy for years without being informed of the charges against him.
The precedent and the law therefore leaves the possibility that the latest sentences ratified by the COAS can be reviewed, if it can be shown that less than satisfactory methods were used to establish the charges. The rumoured internment sites where evidence is obtained through torture should make the evidence inadmissible as evidence obtained under duress can hardly be reliable. The checks and balances of the right to review therefore is a step in the right direction in terms of the credibility of the military courts, which are by virtue of their closed proceedings opaque. The secrecy however is arguably an essential component of the specially set up military courts, since the openness of the regular judicial system means that judges, prosecutors and investigators were in the crosshairs of the terrorists with the judgements influenced due to the threats to their lives and therefore many terrorists walked free. But the nature of the military courts, essential or not, remains problematic as by their very nature we cannot expect them to offer fair trials. Thus we are wilfully condoning potential miscarriages of justice. The winning argument in favour of military courts, and one repeated by the civilian leadership often, is that the 21st amendment is only a temporary arrangement to deal with terrorists while the judicial system with all its cracks and inadequacies is reformed. Hence the inclusion of the ‘sunset clause’ of two years in the amendment, which would see the military courts lapse come 2017, but, and this is a big but, only if the regular judicial system has been fixed in the meantime. To date we have not witnessed any sincere efforts on the part of the sitting government to undertake the promised judicial reforms that will make the perceived need for military courts redundant. If such inaction keeps up, 2017 will come and go and the military courts and the flagrant continuation of dubious justice will continue. The embracing of this arbitrary arrangement by both the public and the political class has put Pakistan on a slippery slope from which it will be difficult to recover. *