THE silence at the time was disquieting and now the nation knows why: the federal government was not committed to allowing the sun to set on military courts and was, in fact, secretly planning to try and revive the courts in the new year. If the first time, in 2015, was a terrible mistake by the civilian leadership made in the highly charged post-APS Peshawar attack environment, the second time round the extension of military courts to try civilian terrorism suspects would be a catastrophic indictment of the government, parliament and the entire civilian leadership of the country. Simply, there is no place for military courts for civilians in a democratic and constitutional order — and to forcibly create that space once again would inflict lasting damage on the polity and the country itself. Sadly, the country is once again being put in the position of needing to understand why military courts for civilian suspects, even if only for those accused of the very worst acts of terrorism, have no place in a lawful, moral and modern society.
The second time round, there is the benefit of precedent to appeal to — and a sample of 274, the number of individuals convicted by military courts. In not a single instance, in not one trial, has either the evidence or the trial process approached anything that can rationally be considered acceptable in a modern justice system. True, the death penalties handed down by the court have been appealed in the superior judiciary as a matter of near routine and not a single conviction has been overturned as yet — but that has much to do with how the superior judiciary itself has approached the issue of military courts. Ever since the Supreme Court validated the existence of military courts for civilians by accepting the constitutionality of the 21st Amendment, the courts have had a largely hands-off approach rooted in the exceptionality — and temporariness — of military courts. Accepting that the creation of military courts reflected the will of the people’s representatives, the superior judiciary has not applied the rigorous approach demanded by the regular criminal justice system. And therein lies the problem: the exceptional results produced by military courts are based on the exceptional treatment that the courts themselves have received — and the exceptionally poor treatment that suspects tried in those courts have received.
The experience with military courts has also laid bare the adjustments needed in the regular criminal justice system to make it more capable of handling so-called hard-core terrorism and militancy suspects. Shielding judges, prosecutors and witnesses appears to be the key innovation and is a system that not only can but should be replicated in the criminal justice system where necessary. Military courts may be a balm for sections of public opinion and the state, but they are poison for the system.
Published in Dawn January 11th, 2017