The decision to set up military courts to try terrorists has emerged as the only concrete and major step amongst all the state rhetoric and actions. Any move to set up a parallel justice system, which operates outside the preview of the state’s existing system must be approached with caution, yet the ease at which the military managed to cajole the political parties into accepting this, hints at a thought process which prefers to expedite rather than debate.
The military courts will expedite the trial process- that much is true. The existing anti-terrorism courts are clogged up with numerous cases, many owning to the fact the ordinary crimes are often charged under the Anti-Terrorism Act. Furthermore, for real terrorism cases, ones that involve politico-religious motivations, procedural niceties and evidential requirements can allow a skilled lawyer to delay the case significantly, especially when the prosecutor and the judges lack motivation. Why should they be motivated, when the judges, witnesses and lawyers all receive death threats at the hands of banned outfits? Despite the threats, and an attack on the Islamabad district courts earlier this year, the state has failed to provide enough protection to the legal system to carry out its job properly, and militants walk free. In the face of all this, military courts operating under the Army Act 1952 can put these men behind bars. The trial can be held in any structure, the military provides security, and not being bound by the principle of precedent, these courts can decide cases on equitable bases, hence speeding up procedure.
Yet, these same features will lead to problems. Firstly, the judges in military courts will be military officials, whose education and expertise are warfare and strategy, not law. The officers are likely to gloss over the finer legal points, especially without a set of established precedent and a deadline looming over their heads. Secondly, the judiciary is an impartial arbiter, a judge with even the slightest conflict of interest is supposed to remove himself from the bench; here the military is both judge and a party to the crime. These courts are an executive institute with a concrete objective: convicting terrorists, how can you expect it to function impartially. Consider this; if the judge is from the same institute whose members the defendant is accused of murdering, can we be certain that vengeance won’t play a part? As the ATC are well aware, terrorism is a vague, nebulous term; these military courts can end up trying Baloch or Sindhi political dissidents under terrorism charges. Since the sentences passed out are in single-paragraph statements, with no requirement of mentioning the findings and reasons for which the particular punishment is handed out, separating true terrorists from political convictions is nigh impossible, especially since their judgements cannot be challenged in civilian courts. The COAS ensures that only “jet black terrorists” will be tried, but is that not presupposing their guilt and rubberstamping it through the court? Answering one injustice with another will lead us nowhere.