The crucial question that is missing in the whole debate regarding the military courts is: what’s wrong with the Pakistan’s judicial system that it needs extraordinary measures to decide the cases about terrorism? The main focus of the debate among the political parties and the media is what should be the new lease of life of the military courts. While the government proposed that the military courts should be allowed to function for three years, the opposition is talking about one to two years. After a little resistance, the government seems to have agreed to the original draft whereby only such cases would be referred to the military courts which are related acts of terrorism committed in the name of religion and sectarianism.
Many leaders are of the view that in the light of unabated terrorist attacks in the country, the bitter pill of military courts has to be swallowed, which is a shame for any democratic dispensation. But no political party is addressing the crucial question that the country needs the military courts only because successive governments and the judiciary have failed to provide an effective prosecution and judicial system. It is, unfortunately, the fault of these institutions that the country has to agree to the establishment of military courts, where justice cannot be dispensed according to the set of principles of the judicial system.
The need for the military courts was felt because the entire burden of the failure to curb terrorism is being put on the judiciary by the government and the establishment. The main argument in favour of the Military Courts is that terrorists are acquitted in most of the cases and where even they are convicted, the lengthy judicial appellate procedures go in favour of the terrorists nabbed by the security agencies. The judiciary and independent legal experts blame poor prosecution presentation of cases. “Inadequate evidence, lack of forensic facilities, witnesses turning hostile fearing accused supporters and legal lacunas make it difficult even for the anti-terrorist courts to convict the accused,” a retired judge of the superior court explained.
In his paper “Improving the Criminal Justice System — Response to Terrorism”, Mr Justice Maqbool Baqar of the Sindh High Court has observed that out of 42 terrorism cases in 2008-11, the ATC acquitted 25 and convicted 17.
Though the Supreme Court had given clear guidelines in Liaquat Hussain vs. Federation of Pakistan case in 1999 when it disallowed establishment of military courts, they were never implemented. Had the subsequent governments and the superior judiciary implemented these guidelines in the last 15 years, the contentious question of military tribunals would not have arisen again.
The Supreme Court laid down the following guidelines which may contribute towards the achievement of the objective for which the establishment is demanding military courts. First, the cases relating to terrorism be entrusted to the Special Courts already established or which may be established under the Anti-Terrorism Act, 1997 (hereinafter referred to as ATA) or under any law in terms of the judgment of this Court in the case of Mehram Ali and others vs Federation of Pakistan (PLD 1998 SC 1445). Second, only one case be assigned at a time to a Special Court and till judgment is announced in such case, no other case be entrusted to it. Third,
the concerned Special Court should proceed with the case assigned to it on a day-to-day basis and pronounce judgment within a period of seven days as already provided in ATA, or as may be provided by any other law. Fourth, the chalaan of a case should be submitted to a Special Court after full preparation and after ensuring that all witnesses will be produced as and when required by the concerned Special Court. Fifth, an appeal arising out of an order/judgment of the Special Court shall be decided by the appellate forum within a period of 7 days from the filing of such appeal. Sixth, any lapse on the part of the investigating and prosecuting agencies shall entail immediate disciplinary action according to the law applicable. Seventh, the Chief Justice of the High Court concerned shall nominate one or more judges of the High Court for monitoring and ensuring that the cases/appeals are disposed of in terms of these guidelines. Eight, the Chief Justice of Pakistan may nominate one or more Judges of the Supreme Court to monitor the implementation of the above guidelines. The judge or judges so nominated will also ensure that if any petition for leave/or appeal with the leave is filed, the same is disposed of without any delay in the Supreme Court. Nine, that besides invoking aid of the Armed Forces in terms of sections 4 and 5 of the ATA the assistance of the Armed Forces can be pressed into service by virtue of Article 245 of the Constitution at all stages including the security of the Presiding Officer, Advocates and witnesses appearing in the cases, minus the process of judicial adjudication as to the guilt and quantum of sentence, till the execution of the sentence.”
Indeed, the issue of providing protection to the judges hearing the terrorist cases is necessary. But this can be dealt with by keeping the judge anonymous and providing them with the same level of protection which is provided to the judges of the military courts.
At present, ATCs are understaffed and overburdened. According to Barrister Faisal Siddiqui, “there are10 ATC judges in Karachi burdened with over 1850 cases. It is humanly not possible for them to decide cases in 7 days.” “One reason for so many cases is that ATC is burdened with most heinous crimes which do not fall into the category of terrorism,” he explained.
The writer is a freelance journalist, and he can be reached at [email protected]