The two-year time span for the military courts established through 21st amendment and duly endorsed by the apex court has already expired. The government and the security establishment feel that the purpose for which the courts were established has not been fully accomplished as yet and it was imperative to extend the tenure of the military courts to keep the fight against terrorism on track.
Reportedly leaders of all the parliamentary parties represented in the parliament, except the PPP, have agreed in principle to the extension in the tenure of the military courts, while differences still remain in regards to the expansion of the scope of the cases to be referred to the military courts. The PPP is opposed to widening the scope for trial of all terrorists including those involved in killings and subversive activities in Balochistan and Karachi and the PTI is insisting on retention of the words ‘religion’ and ‘sect’ as was included in the 21st amendment. Hopefully these differences will be overcome in due course of time when the new draft is presented in the parliament. Even without PPP backing the amendment it is now likely to be passed by the legislature. However it would be appropriate if the PPP also backs the amendment to give it national ownership.
There is no dearth of people who are opposed to the extension of the tenure of military courts for various reasons, notwithstanding the fact that there is a national consensus on the strategy adopted by the government and the military leadership to deal with terrorism. Some human rights groups, the legal fraternity and the usual critics of the government still find it convenient to criticise the establishment of the military courts, terming the step as a breach of the fundamental rights.
The observations and reservations of these elements could have been valid and beyond reproach in normal circumstances, wherein the constitution guarantees the fundamental rights. What they however forget to appreciate is that the enjoyment of fundamental rights by the citizens of a state is linked to an unqualified allegiance to the state and those who raise arms against the state lose the constitutional protection to their fundamental rights. These critics also fail to acknowledge the fact that it would not be the discretion of the military courts to try whomsoever they get hold of but it would be the federal government who would decide which cases would be referred to the military courts for trial. The entire exercise is intentioned to fast-track the process of justice with regard to acts of terrorism and religious extremism. The cases referred to these courts will be heard and decided after affording due opportunity to the accused to defend themselves through their lawyers and they would also have the appellate avenues available to them. If we look at the entire effort in the backdrop of the enormity of the threat to our existence and our way of life, it would start making sense. The entire nation would have to stand united like a rock with unflinching determination to uproot terrorism because the Army and the government cannot succeed without the support of the masses. It is a now or never situation for the nation. We owe it to posterity to save Pakistan from any harm.
Pakistan has been confronted by the phenomenon of terrorism for more than a decade and unfortunately it has rolled on unchecked due to a lack of will on the part of successive governments to deal with it effectively. Even when the terrorists were apprehended they could not be punished by the courts of law due to flaws in the existing legal system and the non-existence of necessary legislation to punish them, with the result they were either bailed out or released by the courts. That indeed was very frustrating and morale-sapping for the security and law enforcing agencies.
Terrorists are a faceless enemy and the elimination of the menace of terrorism not only requires military means to deny them operating space, as was done through operation Zarb-e-Azb and is being executed through operation Raddul Fasad, but also legal backing to ensure that if caught by the security and law enforcing agencies, the terrorists get convicted.
Extra-ordinary situations and circumstances require extra-ordinary solutions. That is what the pragmatism is all about. Nations are sometimes faced with situations and dangers that threaten their existence and way of life and have to go for responses that are beyond the normal and acceptable constitutional and legal framework. World history is replete with such examples.
In Pakistan, terrorists are not only confined to the tribal regions but their operatives and sympathisers have penetrated almost all the big and small cities of the country and from time to time keep on targeting the civil and military targets, like Karachi airport, Mehran base in Karachi and Kamra Complex, APS, lawyers in Quetta, Lahore police and the carnage at Sehwan Sharif, to name a few.
The notion, that the proposal to extend or re-initiate military courts as an instrument of countering terrorism or improving the quantum of justice is a bad idea, simply reflects lack of understanding of the gravity of the situation and the impact that the establishment of military courts have had. The number of the convicted and executed for their crimes by the military courts may have been small and their existence may not have led to the elimination of terrorism from the country altogether but there is no denying the fact that they have led to substantial decrease in the terrorist attacks in the past two years. Their continuation along with other strategies evolved by the government and the security forces will surely help in fighting the menace of terrorism in the future and its eventual total elimination.
The elements who take umbrage at the government for not utilising the two year period to bring reforms in the judicial system and providing an enabling environment to the judiciary to deal with cases related to terrorism, are also trying to oversimplify the challenge. One of the overriding considerations behind the establishment of the military courts was the threat posed to the judges by the terrorist outfits and it was felt that the military officers were better equipped institutionally to deal with such threats and decide these cases on merit without any pressure from any side. That threat still exists, and even if it would have been possible for the government to introduce reforms in the judicial system the scepter of threat would not have receded till the time the scourge of terrorism was completely obliterated. Further, the reforms in the well-entrenched legal system and supporting administrative changes are quite an arduous and time consuming exercise and can only be brought through incremental process after thorough consideration and consensus among the political entities. We do need judicial reforms but those reforms need not be linked with steps to deal with terrorism.