LAHORE - For early disposal of terrorism cases through summary trial, the existing criminal justice system can be improved instead of erecting a parallel system through establishing military courts, which questions the ability of the government to deal with the issues besides spoiling its democratic posture.
The situation was never so serious as it is today owing to the terrorist attack on Army Public School, Peshawar, and the whole nation was never so united and one on crushing this scourge with iron hands and using all means at the disposal of the government. The responsibility to act lies on the government. For that matter, the existing courts suffice to serve the purpose provided loopholes in the procedure of trial of terror cases are plugged through legislation.
The previous PML-N government (1997-1999) took steps to set up military courts to primarily punish the terrorists who then had played havoc with the people of Karachi. But sanity prevailed and the government shunned this idea at the last moment.
Besides trying to set up military courts, that government also took help from the army to locate ghost schools and detect power theft cases though PML-N enjoyed a thumping majority in the assembly and there was no problem of legislation on any subject after 8th Constitutional Amendment had been scrapped. The decision of seeking help from the defence institution for discharging the civil affairs somewhat failed to command due approval at public level that time as it was termed inefficiency of the elected government to solve the problems for which the masses had voted it to power.
Our Constitution provides for the elected government to seek help from the army when it thinks it difficult to overcome a situation. It also does not have any bar on establishing the military courts to try heinous offences, but this can be done only when the circumstances go beyond the control of the civil administration. And this situation does not appear at this moment.
Though examples exist about the military courts functioning in America and other countries under a civil government, they adopt extra care in taking decisions that they do not overshadow the authority of the existing judicial system on the civil side and that the democratic principles are not compromised.
It is noteworthy that when former army chief Pervez Musharraf came to power after overthrowing the Nawaz government in October 1999, he never intended to set up military courts though a number of terror attacks took place during his tenure, particularly after 2004.
Prior to it, military ruler General Ziaul Haq had used the military courts to punish his political opponents in order to pave way for creating a civil constituency for himself.
Our judiciary expressed reservations when a system parallel to it was designed under special courts, panchayat system or khidmat committees with judicial powers. They all were under the supervision of the executive, but were opposed by the judiciary as they were contrary to the concept of independence of judiciary as envisioned by the Constitution of Pakistan and reaffirmed by the Supreme Court of Pakistan through the famous Sharaf Faridi case. Special anti-terrorism courts were allowed when their supervision was given to the judiciary and the superior courts were made their appellate forum. The judges of the special courts are now named and appointed by the judiciary on the request of the executive.
Anti-terrorist courts were set up on a high note for speedily deciding cases within stipulated time and the appeals against their decisions were also to be decided expeditiously. But the desired results could not be achieved in any case because presiding officers, lawyers, prosecution and witnesses were afraid of high-profile criminals.
By and large the special court judges have braced for the situation, but much is needed to be done on the other side for achieving the objective of early decision of the terror cases.
Observers say the purpose of awarding due and early punishment can be well served through legislation for allocating special courts, exclusively to deal with high-profile cases of terrorism and making special arrangements which other countries have fashioned to save the judges, lawyers, and witnesses. There is no bar on the government which enjoyed a clear majority in the assembly as well as confidence and support of all parliamentary parties, for framing law to sternly curb terrorism through the courts on its side, whip up the investigation agencies for timely probe and presentation of challans with strict safety of prosecution, witnesses and the lawyers. A separate system of investigation and prosecution can also be put in place for these cases.
Consideration for setting up courts other than the existing ones would mean the government lacks competence to manage its affairs, no matter it has majority in the House and has tall claims about its performance. As such the best way is dealing with the terror cases within the existing improved system which can also serve the purpose on a long-term basis in addition to boosting image of the government in the public eye, observers add.