IT is time to bemoan the failure of our legal system yet again. Not because of the change at the Supreme Court but because the first extension given to the military courts is about to expire and the government is preparing for a second.
The extraordinary times we found ourselves in post-APS continue to be extraordinary partly because four years weren’t enough for the PML-N to make any progress on judicial reforms or to put in place special measures such as protection for judges and witnesses so the military courts could have been put to bed. Even the Protection of Pakistan Act, which included some of these measures, lapsed as the military courts were in place. And now, the PTI says it needs a bit of time (the party hints it might be less than two years) to reform the system.
There is no option but to give the PTI a chance.
Its government has already identified the point men who will try and convince the angry opposition (the PML-N and PPP) to vote in favour of the extension — a two-thirds majority is needed for the constitutional amendment.
A ‘yes’ vote may not necessarily indicate an NRO but simply an effort to smoothen ruffled feathers.
The decisions by the PML-N and PPP will be interesting for the light they will shed on domestic politics. In fact, they will reveal the mood of the two parties and how they view their current stand-off with the establishment.
In order to understand this, it’s important to remember that the military courts were initially pushed by the army under Gen Raheel Sharif. In the aftermath of the APS tragedy, there was little resistance to such extra-constitutional measures as the entire country reeled from the grisly visuals of the attacks on the school. The government was particularly vulnerable as it had survived the long dharna by the PTI, which ended shortly after the school attack. (It was rumoured that the security establishment helped convince Khan to end his sit-in which already faced a dwindling number of supporters as well as decreased attention from the media.)
Nonetheless, it was a controversial discussion and a few ‘concessions’ were given. The courts were established for two years. The cases to be tried by the military were to be recommended by the executive and there were reports that some cases recommended by the latter were rejected by the former. In addition, when the formation of the courts were challenged in the Supreme Court for being unconstitutional, the apex court let them be but added the right of appeal; this is limited in its scope, but even then, many convictions have been thrown out by the courts, slowing down the implementation of the sentencing considerably. A Dawn story quoted an ISPR press release as saying that in four years 617 militants were convicted of which 346 were awarded death sentences and 271 imprisoned. But only 56 of the condemned prisoners had so far been executed.
Since then, there also have been reports that many of the people detained by the military directly during its operations were also among those prosecuted in the courts.
But the legal aspect of these courts would be better handled by those with legal expertise. Let’s focus here on the political aspect of the issue.
When the sunset clause kicked in after two years, the first extension was also not without hiccups. Initially, the PPP opposed the extension only to capitulate at the last moment. Even back then, the party was dealing with accountability problems — Dr Asim Hussain was granted bail in the same month as the military courts were extended for a two-year period by parliament in 2017.
There is a sense of déjà-vu to the circumstances; the PPP faces trying times as it did two years ago (perhaps even more challenging than 2017) and the initial reaction is that it won’t yield to a second extension. But, would the party — in the current circumstances — want to risk worsening relations with the army? Or will it use the opportunity to get some concessions? The answers to these questions will indicate how the party intends to tackle its confrontation with the establishment.
The PML-N may be no different. The party, so far, is not committing either way to the proposed extension. Senior leaders insist that the party will discuss the matter internally. In addition, it wants information on what the courts have achieved so far. Rana Sanaullah argues that not a single person convicted by the military courts has been hanged in Punjab; but then, he is continuing with the bayania (narrative) which even Mian Nawaz Sharif has abandoned. Other senior party leaders — including Shahid Khaqan Abbasi — say the party needs some answers before making a decision.
But whichever way the party decides will give an indication of what the party (or rather Nawaz Sharif) is thinking. If it is indeed correct that he is now rethinking his earlier decision of a confrontation, the PML-N may end up voting for the extension. A ‘yes’ vote may not necessarily indicate an NRO but simply an effort to smoothen ruffled feathers.
But the vote on the courts will not just indicate what the two parties are thinking vis-à-vis the military establishment and how they propose to handle their troubled relationship with it.
The PTI will also reveal its seriousness about reforms in the legal system by the length of the extension it proposes in the draft amendment. So far, government ministers and other officials have hinted that the extension will be for as long as it’s needed to carry out the reforms — it is implied that this may be less than two years.
And if the time period is shorter, it will add some weight to the government’s promises of reform; in addition, it might also indicate that the military feels the security situation has improved since 2015.
Indeed, the parliamentary session this week will provide a number of insights if the issue of the military courts’ extension is placed before the legislators. And we will have something other than meaningless speeches to discuss.
The writer is a journalist.
Published in Dawn, January 15th, 2019