I READ with dismay the reports about the formation of military courts on the specific demand of the army to try cases under the Terrorist Act. Even more disconcerting are the statements attributed to Gen Raheel Shareef that the justice system of the country has failed “to deliver” and that terrorists with proven track record in 2009 Swat operation had been freed by the courts.

I fail to understand what the army chief meant by “proven track record”. He should realise that the courts do not — in fact, are not expected to — convict anyone on the basis of “proven track record”.

The courts convict the accused on the basis of evidence. If the prosecution fails to bring home the charges against the accused, the courts must of necessity acquit him.

The army chief is labouring under the misconception that when military authorities suspect somebody of being involved in a crime and arrest him, that by itself is enough to convict him irrespective of the failure of the prosecution to prove the charges against him in the court through unimpeachable evidence.

During my 35 years of judicial service from the bottom of the ladder to the top, there were many occasions when I was convinced of the guilt of the accused but I had no alternative but to acquit him because the prosecution did not take interest in prosecuting the cases diligently either because of lethargy or inefficiency or due to monetary considerations and did not produce witnesses in spite of many chances granted to it.

In my view it is not the judicial system that has failed; it is the prosecution system that has failed. Instead of military courts, the government should better establish a military prosecuting agency or should appoint military observers or advisers with the prosecuting agency.

The establishment of military courts is no solution to the problem of almost negligible convictions in our courts.

Justice (r) Salahuddin Mirza

Karachi

Published in Dawn, December 28th, 2014