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Military Courts: An Unusual Dilemma


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Supreme Court of Pakistan

After the Peshawar school carnage of December 2014, Pakistan’s leadership established military courts throughout the country to deal explicitly with terrorists. The decision came after the National Assembly deliberated and adopted the 21st Constitutional Amendment Bill and the Pakistan Army (Amendment) Bill, 2015, which passed unopposed. The decision to establish military courts was received with mixed reaction among Pakistanis and political analysts. Although Prime Minister Nawaz Sharif is in favor of military justice, he assured parliamentarians that empowering the military will not lead to them exploiting the law. Others have argued that Pakistan is now under a silent martial law.

Over the course of its 68 year history, Pakistan has been plagued with three military coups and corrupt governments. It’s constant. Therefore, the establishment of military courts has brought this sense of reminiscence of the days where military justice prevailed and civilian rule surrendered. Since its adoption earlier this year, the provisions of the act will remain in effect for a period of two years with the possibility of renewal depending on the measures required. When a country goes through a rough patch, which in Pakistan’s case includes terrorism, dictatorships, and natural disasters, the nation has to show unity and perseverance in contending with unforeseen situations. In this context and with Pakistan facing a massacre, politicians gathered and democratically voted for military courts to be established.

However, some have suggested the military has forced its way to obtain judicial power and strengthen its grip at the expense of civilian authorities, but I disagree. There’s a flip side to the coin. Understandably, the Pakistani Army is the most powerful and respected institution in the country, but that doesn’t change the fact that when the country is in moral chaos, the strongest institution is expected to raise the nation. Technically, Pakistan is democratic and sovereign, but today it faces extreme terrorism with a weak civilian judiciary unable to fully carry out its functions. Most amendments occurred during military rule and this is the first time the National Assembly took a clear and unanimous decision to have military justice for terrorists without the pressure of a dictator. As the Leader of the Opposition in the National Assembly, Syed Khursheed Ahmed Shah puts it, “The Parliament is going to vote to save Pakistan. The bitter pill of this new law is being swallowed for the security of Pakistan”.

Furthermore, military courts have not been given a blank slate where they can do as they please and prosecute whomever under the recent enactments. Massacring schoolchildren and beheading soldiers are considered war crimes under international law, therefore as a sovereign state, Pakistan took the best decision for the country’s stability and peace. No one is arguing for military courts to remain for decades, but the present situation requires an authoritative judiciary to punish the perpetrators. President Nawaz Sharif approved paperwork to remove the moratorium on the death penalty for terrorism related cases. The decision came after many criticized the civilian judiciary of not bringing terrorists to justice. On numerous occasions, witnesses and judges were too scared to come forward and help the system to prosecute those involved. The reason being is that most witnesses and judges were either bribed or threatened. It’s fair to argue that there could be better alternatives to military courts, such as strengthening civilian courts, but in Pakistan’s case this is the most effective option in the present situation. Zahid Hussain, a Pakistani journalist and author gives a delicate but persuasive explanation on why we must accept an undesirable system of justice for temporary measures and its difference from military rule. “These courts would not be working autonomously, but will be under the control of civilian authorities for a limited period of time. They would only be used to try the hardened terrorists and those who incite violence in the name of religion”, he said. The Supreme Court and parliament must act as watchdogs for the system in place because there’s always a danger of corruption and exploitation of these courts.

In terms of democratic governance, we have separation of power with an independent judiciary from the executive and legislative branch. This is to ensure there are checks and balances so one branch cannot overcome the other. In Pakistan’s case, the judiciary has been the weakest branch for the past decade. There’s a vote of no-confidence for our judiciary mainly because of the misuse of judicial review under former Chief Justice Iftikhar Chaudhry. He expanded the use of judicial review for the military establishment and political elite which gave them a bigger say in the dealings of the Supreme Court and lead to a series of setbacks. Militants escaping prosecution, jailbreaks, corruption, and judicial overreach had put Pakistan in an unfortunate position. Furthermore, for many years the judiciary remained weak because judges were appointed on favoritism, not merit. Thus, there’s always a political threat because those judges favor the parties who nominate them, which leads to weak accountability. Although I agree that resorting to executions won’t solve terrorism and extremist violence in Pakistan, the people need reassurances as much as the families of the kids that were massacred, that those in power can take bold steps to ensure the safety of Pakistan. While the decision to establish military courts and lift the moratorium on the death penalty was approved, parliament and the executive body weren’t trying to justify themselves by claiming the death penalty will result in lower crime, but rather, to respond to the blow that Pakistan felt on that tragic day.

Written by Hussain Shorish and published on 25-September-2015




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