MANY well-intentioned voices — this newspaper’s among them — have been raised against the constitutional amendment giving military courts legal cover for the trial of terror suspects.
But when we oppose a policy or a law, we ought to be able to propose a viable alternative. And how are these liberals suggesting we deal with the hordes of jihadis who have been slaughtering thousands of innocent Pakistanis at will and with almost total impunity?
They propose that we strengthen the existing civilian courts, improve the investigative ability of the police, and ensure better prosecution. Really? How? For a quick reality check, here are some facts and figures: There are currently some three million cases pending in courts across Pakistan. The Supreme Court alone has a backlog of 20,000 or so. The Lahore High Court has to clear around 100,000 cases, while the Punjab judiciary as a whole has a staggering 1.1 million pending cases. So how about putting in some overtime, my lords?
How do we deal with hordes of jihadis?
The anti-terrorism courts were set up to deal with cases relating to terrorism, sectarian killing, extortion and kidnapping. The original law called for these courts to hold daily hearings and decide within seven days. In Sindh, 33 ATCs acquitted 543 suspects and convicted 255 over the last year or so. Eight ATCs acquitted every suspect. Currently 2,697 cases are pending before these special courts.
This abysmal situation prevails despite a $350 million loan from the Asian Development Bank for improving access to the judiciary as well as enhancing its efficiency. I know foreign consultants were hired, and many ‘study tours’ organised for our judges and law ministry officials, but am unaware of any improvements in our judicial system.
And as the backlog builds up, our higher judiciary continues to take on suo motu cases, issue contempt notices, and grandstand before the media in high-profile political cases. One of the chief justice’s main functions is to improve the working of the lower courts. But as we saw, some previous ones were too preoccupied with tackling the executive for its acts of omission and commission to bother with more mundane tasks.
One reason the people of Swat initially welcomed Taliban rule under Mullah Fazlullah was because he promised quick justice. But when this took the form of instantly condemning and killing those suspected of spying for the government, and publicly flogging a young girl, the tide turned and the army moved in. However, civilian courts released a large number of Taliban militants suspected of terrorist attacks.
This, then, is the judiciary opponents of military courts want to strengthen. Well, so do I. But frankly, I don’t see it happening very soon. Meanwhile, there is the small matter of armed and rabid militants for whom no cruelty is too abhorrent, no atrocity too savage.
Apart from endless delays in trying the ones the security forces do arrest, the danger to judges, prosecutors and witnesses is only too real. Time and again, the menace of terrorists has kept witnesses from coming forward, and prompted judges to acquit suspects.
Then there are the gaping holes in our jail system. We have seen several spectacular jailbreaks in which those convicted for, or suspected of, terrorism are released. Others have been sprung from courts. So clearly, there is a need to expedite such cases.
There is a concern that military courts might convict the innocent as the burden of proof falls on the accused, unlike in civilian courts where the state has to establish guilt beyond reasonable doubt. Many prosecution cases fail to meet this high standard, and hence the delays and the high acquittal rate.
But to fight a brutal foe who has no regard for any law, and certainly no respect for constitutional niceties, with our hands tied behind our backs is to place our heads on the chopping block. While we should certainly not descend to the level of the Taliban, we need to beef up our ability to defend ourselves. And if this calls for compromising the human rights of terror suspects, so be it.
Apart from the fear of terrorists, another reason witnesses are reluctant to step forward is the reality of constant postponements. Cases are put forward time after time, but witnesses from both sides still have to turn up. Bent lawyers, paid to delay a decision, present clearly spurious medical certificates to obtain postponements.
Meanwhile, high courts issue stay orders at the drop of a hat. Thus, tenants continue paying absurdly low rents to the courts while landlords fight endless court battles to get their property back. The police routinely use professional witnesses to obtain the few convictions they do get.
This, then, is the reality of the legal system that has failed to deliver so far, not just on the terror front, but across the board. Expecting it to suddenly transform itself is like waiting for Superman to save us.
Published in Dawn, January 10th, 2015