A dissenting but minority judgement by six judges of the Supreme Court against the majority judgement of 11 judges has declared the 21st Amendment as well as trials of the accused by military courts as illegal and unconstitutional. The decision taken by parliament to amend the constitution and set up the courts came in the wake of the horrendous attack on the Army Public School in Peshawar which left around 150 people dead, most of them children. The 17-member full bench was also hearing petitions challenging the appointments of judges as laid out by the 18th Constitutional Amendment. This was approved as well in a decisive 14-3 verdict. The question of the 21st Amendment appears to have led to a more strenuous argument among the judges with an 11-6 verdict finally delivered in favour of the military courts. The arguments against forming a parallel military judicial system are numerous and oft-repeated. It undermines the authority of the civilian judicial system, which will only be seen as an inferior entity. It concentrates power in the hands of the military – which now have their own economy, media, foreign service, judiciary, and law enforcement (Rangers) – making them a veritable state in themselves. Furthermore, by ceding all responsibility to try terrorists to the military in this makeshift arrangement, the government has no motivation to reform the existing system. Of course, the military’s judicial regime adds a few serious concerns of their own. All too often, there has been a lack of respect for parliament and its decisions — though some are undoubtedly flawed and reflect an institutional immaturity — but Pakistani democracy has to be viewed very much as a work in progress rather than a finished item, perfect in every way. The military courts have been set up to address a specific issue at a particular point in time. The first verdict delivered by a military court in February this year, ordering a death sentence for six men and imprisonment for another was stayed by the regular courts. It is somewhat disturbing that we knew so little about who the men sentenced to death were or how the proceedings took place. But for now, the military courts are to stay. What impact they will have on curbing terrorism is open to question. Of course there are some advantages of the military courts. They can ostensibly try the terrorists the civilian judiciary was too scared to convict, such as Malik Ishaq and Zakiur-Rehman Lakhvi. Yet there seems to be no indication that the military is going to do that. While the courts remain inherently flawed, they can redeem themselves if they start convicting the militants that walk brazenly in the open, thus fulfilling their true purpose. When will the banned organisations in Punjab be targeted? When will the sectarian ASWJ be charged? While they remain in the open, the military courts remain a sham- a bid to gain more power disguised as the answer to all terrorism. The greatest tragedy of the verdict is not the legal validation of the military courts – they will expire in a few years – the tragedy is the affirmation of ‘the doctrine of necessity’ once more by the apex court.
pk.shafaqna.com
