Not the answer

Published December 30, 2014
The writer is a lawyer
The writer is a lawyer

WHILE the broad consensus between the country’s defence and political forces might have narrowed room for disagreement with the idea of speedy trial courts under military supervision, as a student of law and jurisprudence I consider these courts a violation of the law and Constitution. Not only that, such courts would not be the right solution to the problem of militancy.

It appears that at the multi-party conference (MPC), the responsibility for the Peshawar carnage was placed on the shoulders of the subordinate judiciary in an amazingly knee-jerk reaction. Instead of an attempt to address the problems faced by the anti-terrorism courts, salvation was found in creating a parallel judicial system in the shape of military courts euphemistically referred to as speedy trial courts. The mechanisms to implement 19 out of the 20 MPC points have hardly been discussed.

The idea to try civilians by courts administered by army personnel was first exercised by Zulfiqar Ali Bhutto, and then by the Nawaz Sharif government in 1998 under the Pakistan Armed Forces (Acting in Aid of The Civil Powers) Ordinance, 1998. The law empowered the army to try the civilians for scheduled offences. The army was further empowered to establish appellate courts to hear appeals against the judgment passed by these courts.

The ordinance was challenged and held unconstitutional by a nine-member bench of the Supreme Court vide a judgment known as the Sheikh Liaquat Hussain case. The apex court’s reasoning was that since the Constitution demanded complete separation of the judiciary and the executive, any endeavour to control the judiciary by the executive would amount to curtailing the independence of the judiciary and violation of the basic structure of the Constitution ie the trichotomy of powers.


Military courts are a knee-jerk reaction to militancy.


The court further held that the word ‘aid’ postulated the continued existence of the authority to be aided, and it did not mean transfer of authority from judiciary to executive. Through a mechanism, appeals against the judgments of trial courts could be heard by the superior judiciary to allow the courts to retain their authority. But the question would still be whether or not, within the framework of the Constitution, a judicial system could be established where the executive (military) could be given adjudicatory powers.

In my opinion, this approach and arrangement are bound to fail. First of all, the Peshawar carnage was not the outcome of pending trials; it resulted from the gross failure of the intelligence and law-enforcement agencies to carry out their duties. Secondly, punishment for the militants including the GHQ attackers was not delayed by the ATCs. The convictions of many terrorists had been awarded by the courts but executions were halted because the PPP government had suspended these, and this moratorium was later extended by the government of Prime Minister Nawaz Sharif.

While military courts are an undesirable option, we must also underscore the lethargic attitude of the superior judiciary. Even as we ask for accountability of the armed forces and raise questions in reference to incidents such as Mehran, Kamra, Abbottabad and now Peshawar, we must also ask the judges why a quick and effective mechanism pertaining to case management was not developed by the administrative judicial tier to maintain the speedy and effective disposal of the cases.

We must ask why stern actions were not taken against lacklustre, apparently corrupt and pusillanimous judges. The burden squarely lies on the respective high courts that being the administrative courts for the relevant provinces failed to take appropriate actions.

In the Liaquat Hussain case, a senior member of the bench Justice Munawar Ahmed Mirza while highlighting the reasons for the delay in trials had observed that “these factors are adversely eroding the image of the judiciary in the general perception”.

Emphasising on the need to take extraordinary measures he further observed that “it is high time when after combating on the constitutional pedestal for independence of the judiciary, the judicial system … be preserved by shedding … a casual attitude, to ensure speedy redress and fair justice”. It is quite unfortunate that this part of the judgment has been ignored.

We must all realise that the carnage that took place in Peshawar this month was a collective failure of both state and society. Ironically, the resolve to curb terrorism must also lie in collective efforts. This menace cannot be rooted out in two years — the time the military courts would exist as mandated — come what may. The anger and pain we all feel in our hearts must not take away our morals as a nation and as a state. We have to come up with a firm and permanent solution to deal with this problem instead of reacting irrationally.

The writer is a lawyer.

Twitter: @faisal_fareed

Published in Dawn, December 30th, 2014

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