The sun must set on military courts

Updated December 18, 2016

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AS the fallout from Justice Qazi Faez Isa’s report continues and governments, federal and provincial, struggle to explain their inaction, there has been yet another manifestation of the collective failure of the state. On Friday, newly installed army chief Gen Qamar Bajwa signed off on what may be one of the final orders upholding death sentences for terrorism offences handed down by military courts set up under the 21st Amendment. The 13 latest confirmed death sentences means that over 150 individuals have been condemned to die by military courts since their creation in January 2014. With the sunset clause of the 21st Amendment set to take effect early next month, a stark choice awaits the country’s elected representatives: contemplate an extension to the life of the military courts and in doing so further perpetuate the gross distortions to the Constitution and justice system in the country, or, at long last and however belatedly, take up the issue of criminal justice reform.

The preferred option for parliament may well be the option utilised in the case of extreme detention powers and special courts created under the Protection of Pakistan Act, 2014: when that law expired in July, parliament simply opted to do nothing. Pending cases in the special courts have been transferred to anti-terrorism courts and there appears to be no appetite in parliament to give security forces further special powers to detain individuals for prolonged periods. The do-nothing option may seem palatable in a distorted system; after all, when controversial laws expire and their controversial powers no longer exist, the state cannot rely on them to perpetrate unjustness. So, if military courts under the 21st Amendment cease to exist on Jan 7, an opaque and indefensible system of so-called justice will stand dismantled and army chiefs will no longer have the authority to confirm death sentences handed down by those courts. But the do-nothing option is, in fact, deeply problematic. It is the lack of justice system reforms that makes possible the creation of abominations such as military courts in the first place. If no reforms are attempted, the demand for ad hoc systems of justice will invariably be mooted.

Justice system reforms are not easy, but neither are they as hard as they are made out to be. Under its chairman Raza Rabbani, the Senate is trying to nudge parliament to take up the matter of terrorism-related legal reforms. Two bills covering anti-terrorism and protection of witnesses passed by the Senate should be taken up by the National Assembly — and the sooner it is done, the better. As Mr Rabbani has warned, a legal vacuum may appear on Jan 7. And if history is any guide, dealing hastily with vacuums or emergencies tends to create further problems. Judicial reforms must be undertaken in a determined, but measured way.

Published in Dawn December 18th, 2016