Matter is beyond the Military Courts; it is not ‘us’
By Sami Ullah
A prolong contemporary debate has been going on whether the military courts shall be constituted. If yes, then what is at stake? Are we going to find a promising justice or phrased swiftly as means to ‘Quick Justice’ in these military courts or are we going to sacrifice our fundamental rights bestowed upon civilians by the constitution. The opinions may vary but nevertheless, there are some obsolete facts that can never be subsided and must be given due consideration.
The argument proposed in favor of setting up of these military courts is that terrorists wouldn’t terrorize the judges and so would not evade justice. Furthermore, they will provide ‘quick justice’ and pave the way to hanging people who terrorize the civilians. The question is: Have we, on embarking on the war on terror, even bothered to define what ‘Terrorism’ actually is? Thence, whom would be the person categorized or fall in the definition of ‘Terrorist’? After searching quite a loathsome, you will come to conclude that there exists none. Even if some bleak definitions are provided, they nevertheless come under the term ‘vagueness’ (as we lawyers refer to it). So, you trial someone and eventually hang him on a concept that is not even defined. A recent story spread in the media that a man has been given a death penalty by the Anti-Terrorist Court (ATC), who at the time of this sentence, was juvenile (only 13 years old). Another penalty trailed in the terrorist court was of a person who had killed his own father and the court decided to trial him as a ‘terrorist’ as it is a worst example of civilian being ‘terrorized’.
The other argument encircling around the media these days is that the civilian courts cannot carry out death penalty as it is a security risk for the judges. Is it the failure of judiciary or the state itself? Article 9 of the constitution guarantees the security of life. It is the responsibility of the state to ensure the security of the Judges not Judiciary! In establishing the military courts, an amendment has to be carried out, amendment fundamental rights. Article 8(1) of 1973 Constitution clearly points out ‘Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights (shall) to the extent of such inconsistency, be void’, or simply any law inconsistent with the fundamental rights shall not be enacted or passed.
The debate is on final stage for the constituting of these military courts. So, what if majority of the parties have rejected this proposal, then there raises the question of the essence of tribunals. Tribunals are constituted for having the specific cases over specific issues within specific time. The basic purpose of constituting tribunals are to ease the process of the case and finalize the result instantly; tribunals are delegated some powers to have proceeding in a determined jurisdiction by the apex and other courts and either of the party can have appeal in case if the either of the party thinks justice is not being carried out. Whereas, in military courts, if constituted, what would be the procedure of appealing? Who will preside over the cases? Military Judges? If yes, then if military becomes the prosecutor, doesn’t there exist the possibility of biasness? And who will be the advocates? The same advocates or military personnel? How about the law, PPC (Pakistan Penal Code) will be applied or army law or any other law separate for military courts? If yes, then is not this, the new beginning of a new conflict. A handsome debate is also going on for pragmatism to military courts, which in some most and well developed countries military courts were established, yeah!! This is Ok….but how is Pakistan’s history about stretch & strain for power between the military and parliament? Didn‘t some people pray in ‘Jadda’ and ‘Dubai’ for bringing back democracy, didn’t they “Signed Chatter of Democracy”. Don’t we see our back day’s record? Those pages of history are not blank in which Pakistani nation was on a long-march, in 2009 for restoration of judiciary. With the establishment of these courts, there again would be a requisition to conduct another long march in the future. The academicians shall undoubtedly be asking about the chapter on ‘Separation of Power’ where a Government has its three major organs and each one does work into its prescribed jurisdiction without the interruption of other organs but here military courts doesn’t mean hanging the active courts in the sky. Why am I surprised? President passed ‘Tahafuze Pakistan Ordinance” in which a person could be detained for 90 days if found suspected (and serendipitously, it is against the writ of “habeas corpus” in which, a person however suspicious shall be presented to the Magistrate within 24 Hours). On the other side, military courts are omitted in Article 212(a) of 1973 constitution, won’t it better if sitting courts are given strength rather establishing military courts. There is a doctrine in politics that ‘power corrupts and absolute power corrupts absolutely’, and again, this nation is committing the same mistake of giving power to any other authority not prescribed by the constitution; challenging those principles as there would be no check and balance over military court’s proceedings.
To conclude, establishing military courts are against fundamental rights of the individual. There is no debate that these terrorists should be held accountable. They shall be prosecuted with the due course of law for the crimes, they have heinously committed. The extremists have killed innocent civilians and military men. Civilians and military are on the front line. Both are losing lives.
But the question is: How to handle it? Give due consideration to the civil liberties, citizens who constitutes states and are nevertheless much affected during the course of Pakistani history or in haste, make such decisions which will be regretted in the future. It is time to strengthen the judiciary by giving protection to the judges which is the duty of the State.
Now, it is up to our elected members to decide.
The writer is a Law Student. He is a Freelancer and often contributes on legal issues. He can be contacted via email: firstname.lastname@example.org