Misbah U. Azam, Ph.D.
Award-winning journalist and author of two famous books, Zahid Hussain, recently wrote in his column in Daily Dawn, “It is, however, wrong to compare the proposed military-led special courts to those set up under military rule. These courts would not be working autonomously, but will be under the control of civilian authorities for a limited period of time. The amendment in the Constitution does not give carte blanche to the military to decide whom these special courts should try. They would only be used to try the hardened terrorists and those who incite violence in the name of religion”.
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The million dollar question is if not the military courts then what? The civilian courts in Pakistan are highly inefficient and media reports suggest that large number of judges are prone to corruption, these courts lack sufficient number of Judges and are heavily back-logged by cases which take years before the verdicts are passed with conviction rates only 5% to 10%. Human right groups raise questions regarding whether these courts meet international fair trial standards or not. “Even in ordinary times our civilian courts have proven to be a failure. Courts and judges are not sufficient in number, and the prosecution has been incompetent and politically affected, with the result that getting justice has become almost impossible. It [justice] is inefficient, expensive and corrupt,” said Ahmed Bilal Mehboob, president of the Pakistan Institute of Legislative Development and Transparency (PILDAT) when talking to Al-Jazeera.
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The terrorism suspects are tried in the separate courts termed as the Anti-Terrorism Courts (ATC). The Judges in the ATC supposed to pass verdicts faster than the regular trial courts but these courts are clogged with the cases which are not the terrorism related. At present, there are over 15,000 cases under trial in ATCs which are related to murder, drug trafficking, and even kidnapping for ransom instead of terrorism. After the attack on the Pakistan Television building by Pakistan Awami Tehreek and Pakistan Tehreek-i-Insaf supporters and members in September, 2014, the federal government filed terrorism case against top PAT and PTI leadership, which include Dr. Tahirul Qadri and Imran Khan in the ATC. According to the Supreme Court, as many as 85 percent of those cases under trial in ATCs are not terrorism-related. Generally, the terrorism cases are marred by the weak prosecution due to lack of solid evidence because of the incompetence of the investigators and in some cases deliberate misleading to save some “asset for the national security”. Another problem is that most of the judges, prosecutors and the witnesses are afraid of the pay back by the powerful terrorist groups. It is no news in Pakistan when the lawyers, judges and witnesses are murdered after the terrorism criminals were tried. Also, media reports suggest that large number of judges and lawyers have sympathies with the terrorists. Just some years ago, when Mumtaz Qadri, who murdered Governor Salman Taseer, was greeted by the layers when he was brought to the court for trial. It is expected that these structural problems can be addressed by going to the military courts. Unfortunately, with the military courts, the judges who are the problem are replaced by the Brigadier and Colonel level serving officer, however, the prosecutors, the witnesses or the police will be the same. Sure military courts will not replace all by military personnel.
Knowing the history of Pakistan and the constant struggle of Army to drive the policy making, it is not immoral to argue that by having new powers with the constitutional cover, the military will further assert itself over the civilian authority and country will be running under the de facto Martial Law. After the restoration of the civilian rule in 2008, President Zardari had virtually out sourced the Foreign and Defense ministries to Pakistan Army. When the question was raised by the civilian government about the Osama Bin Laden’s presence in Abottabad, Mr. Zardari’s government was slapped by the Memo-Gate scandal. Mian Nawaz Sharif tried to assert the civilian authority but he had to face the “Aazadi march” and “Inqilab” which were engineered by some unknown “umpires”. Before the Peshawar massacre already the foreign and defense policies were clearly run by the security establishment but now, the civil authority has surrendered more of its authority and gave the constitution cover to it as well.
At this time the new martial powers are cautiously supported by even some very senior political commentators inside and outside Pakistan, but everyone is concerned about its future. How much more the civilian government is ready to give up and how much these new sweeping powers will help curtailing the terrorism. It will be better for the future of the country that the democratic system should be strengthened and the national security criterion must be decided by the parliament of Pakistan. To achieve that, just being assertive would not help. Also, asking army generals to mediate in the political problems like Prime Minister recently did after the PAT/PTI sit-ins, will also not be helpful. The civilian leadership must have a belief in the system and they must deliver to the people’s demands. True, that the infra-structure building is very important for the country’s economic growth, but government should set their priorities straight, otherwise, people will be accepting – may be unwillingly – the monotonic rise of martial authority.
Pakistan is a multi-cultural and multi-ethnic society, where the people from different provinces are proud of their identities as Pashtun, Panjabi, Baloch, Sindi and Hazar-Walias (Hindko speakings) and they want to have a share in power. With military at a driving seat or running the show from behind in a role of king makers – which seems to be the case now — slowly, sense of getting victimized among the people from small provinces develops, exactly in the same way it happened in East Pakistan after 10 years of Ayub/Yahya regimes, then in Sind after another 11 years of Zia’s rule and then in Baluchistan after the 9 year rule of Musharraf. There are voices in the electronic and social media, who are trying to spread the perception that military rule is the solution for Pakistan problems. Make no mistake that first of all it was Army’s “brilliant” minds who created these monsters because of their obsession to control Afghanistan and bleed India. Even today, although there is no good and bad Taliban, but – as media reports suggest — there may be some good incendiaries still exist who operate in Kashmir. Then Osama Bin Laden’s secret stay in Pakistan next to the Military Academy for six years, the US operation to kill Osama Bin Laden and the recent massacre in the school in Cantonment where the first tier of security is provided by the army, are failures of military authority. So, those tunnel visionaries who are preaching that army is the only savior of the people are dishonest or simply naïve. Military is important and its input in the security issues is necessary but at the end of the day, it’s an institution of the State like Judiciary, police etc. Portraying army as a competitor to the civilian leadership in policy building matters of the country will only make this revered institution more and more exposed to the public criticism and make it more controversial.
Although, the military courts may be the necessity of time – which large number of lawyer’s organizations and media persons disagree — and these are formed for the limited period but Zahid Hussain pointed out very rightly, “…. there is always a danger of these courts being misused. But it is for parliament and the Supreme Court to keep a strict watch on them and not let their supremacy slip away”.
Now Pakistan will see if the civilian authority really stay on top and does not let its authority to “slip away”.