Damage limitation

Published January 4, 2015
AFP/File
AFP/File

NOW that the government has decided to take the plunge, the details still remain to be worked out. And, as ever, much of the devil lies in the details. Early drafts of the different pieces of legislation, including a constitutional amendment, that are needed to ready military courts to put on trial civilians accused of terrorism suggest that the government is attempting to protect some semblance of the fundamental rights it has decimated by maintaining the right to appeal to the superior judiciary for individuals convicted in military courts of the new offences being drawn up. If – if – the final legislation approved by parliament envisages such safeguards, it would suggest that the political class is at least aware of the disastrous consequences of allowing the military to completely usurp the judicial process. Anything that circumscribes, limits and tightly patrols the new military courts ought to be welcomed: the fewer the exceptions, the shorter the duration, the quicker the imminent constitutional deviation can be recovered from.

There is, though, a basic problem. In attempting to maintain a right of appeal while denying terrorism convicts the fundamental rights enshrined in the Constitution, the government — and parliament by extension – is trying to avoid a contradiction that cannot be avoided. In essence, there is a two-fold purpose in opting for military courts: ensuring a quicker, more streamlined process for anti-terrorism trials, and lowering the threshold of evidence needed to secure convictions. If the right to appeal is maintained, the government will be hoping that the superior courts will decide appeals based on the lower threshold of evidence, and fewer due-process and fair-trial protections, that military trial courts require, and not the higher threshold that the regular court system allows. But that will be up to the courts themselves to decide. Will the Supreme Court participate in a system that denies the superior judiciary the right to enforce fundamental rights while still allowing it to hear appeals of terrorists convicted in military courts? That only the SC can decide and the country will only know when the new system is in place and the laws are challenged and convictions appealed.

In truth, now that the government — the entire political class, really — has acquiesced to the military’s demand for expanded military courts, the only thing it can really do to try and return to a fundamental rights regime in the quickest timeframe is to reform and improve the criminal justice system, the state prosecution service and the police investigation process. Two years is what the army has demanded for expanded military courts. Two years should also be the time the government takes to ready the normal judicial process to deal with the terrorism threat inside the country. It can be done. But only if the government gets serious about governance and reforms.

Published in Dawn, January 4th, 2015

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