The laudable national consensus of creating military courts, which has been forged in the aftermath of the unprecedented Peshawar tragedy, renders a damning indictment on our judiciary. There is no way to walk around it anymore: the judicial organ has miserably failed in performing its indispensible responsibility of convicting and sentencing militants in our society, in a speedy and efficient manner.
There can be no cavil with the contention that a call for military courts, in any democratic paradigm, is an abhorrent measure, when viewed through the prism of constitutionalism. Despite protections that may be built into the establishment of military courts, such courts necessarily abridge the due process of law, and to a great extent, the protection of fundamental rights. Consequently, draconian measures of the sort are usually the hallmark of dictatorial regimes and uncivilized societies. Throughout world history, such courts have only been established either under totalitarian regimes, or in times of national exigencies, when no other option can rescue the State from its existential crisis. Even then, such courts are established almost in defiance of legal protections to the contrary.
If we were to dispassionately assess the reasons behind the prevalent national consensus of establishing military courts in Pakistan, it would be discovered that the real cause for this demand does not stem from the scourge of terrorism (which is usually dealt with by Anti-Terrorist Courts). Instead, it is the absolute inability and decadence of our constitutional courts to perform their requisite functions in regards to terrorism that has compelled our nation to resort to this extreme measure.
As a lawyer, and a proponent of constitutionalism, this is a hard pill to swallow. However, in the face of our judicial failure, there seems to be no other viable alternative.
The experiment of creating military courts is nothing novel in Pakistan. These courts have been periodically created under our military regimes, and even by the Nawaz Sharif government of 1997 (to counter the militancy in Karachi). However, the most recent experiment of late 1990’s was declared unconstitutional by the honorable Supreme Court. Consequently, from the legal perspective, in light of our history and judicial precedent, nothing short of a constitutional amendment would be required for the establishment of military courts, as was previously done under the now repealed Articles 212-A and 212-B of the Constitution. Without getting too technical (since constitutional experts, from all sides of the isle, are hammering out the details), these military courts will have to be excluded from the Fundamental Rights’ protection granted by Article 8 of the Constitution, and thereby will have the ability to abridge the expansive protections of Article 10-A (Right to Fair Trial).
But keeping aside the constitutional nuances, let us pause for a moment to take stock for what such a measure would mean for the already disintegrating confidence in our judicial structure. It is no secret that throughout the past decade of the War against Terrorism, which has claimed almost 50,000 Pakistani lives, the judiciary (including the Supreme Court) has not rendered any meaningful conviction of militant leaders. A recent study conducted by Public Policy Review Centre (PPRC) reveals that in 16 high profile terrorist incidents in Rawalpindi/Islamabad, since 2001, including the Marriott bombing, the Anti-Terrorism Courts (and its appellate process) has not returned a single conviction. Every suspected militant, who was arrested for these attacks, has been released. And might we be reminded that this pattern cuts across the entire judicial system of Pakistan that has released hardened criminals such as Hafiz Saeed, Malik Ishaaq and Mualana Abdul Aziz, after they were captured and presented before the courts by our security agencies.
The call for the establishment of military courts, thus, is simply an acceptance of the failure of our judicial process. Pakistan, and her people, have come to the inescapable conclusion that no reform of the Anti-Terrorism Act, no restructuring of our civilian judicial process, no reinforcement of Case Management System, and no measure of additional funding for ‘Access to Justice’ can jolt the judicial arm of this nation out of its criminal slumber.
But why stop here then? Why stop at establishing military courts just for counter-terrorism? The rot and inefficiency of our judicial organ (for which the Bar is equally to be blamed!) is far deeper in other areas of litigation. Why should the 80-year old Allah Ditta spend the rest of his feeble days chasing after the trial of his son’s murder, which has been stuck in the Sessions court for almost a decade? Why must Bashiran Bibi suffer the slings of our civil courts, for the better part of her life, before she and her daughters can see a penny from the husband’s inheritance? Is their pain invisible to our conscience simply because it is not dripping in blood? Does our society, nay, our humanity, place such unfortunate individuals at a lower pedestal than the Swiss Letter case or Dr. Arslan Iftikhar saga?
In case we do, and are therefore comfortable persisting with our current disposition, then may Allah have mercy upon our squalid souls! And if we do not, then should we dispense with the entire constitutional judiciary, and instead create military criminal courts, military inheritance courts, military land courts, and military corporate courts?
Woefully, we may not be too far from the day that our people clamor for such alternatives.
The ball is now in the judiciary’s court. In recognition of our judicial failure, military courts for counter-terrorism (which is the need of the hour) will soon be a constitutional reality. However, will our nation descend into any further measure of the sort, is really up to the judges and lawyers in this country.
Apparently, the honorable Chief Justice called a meeting this week to urge that terrorism cases be given priority through out our courts. But the time for such meetings is now over. A bereaved nation can no longer be consoled through statements of intent. Our legal fraternity, as well as the judiciary, now face a nation that no longer believes in the value, efficiency and effectiveness of our courts.
As a member of the legal fraternity: we can no longer blame the police officials for not gathering enough evidence, or the prosecution for not presenting it well. We can no longer hide behind the excuse of not having enough judges, or being buried under a backlog of cases. We can no longer tolerate counsels who delay or prolong the litigation process. All of these, and more, are our internal issues. And we must find internal solutions to counter them.
Because if we do not, the people and polity of Pakistan will have no choice but to deem us irrelevant, and resort to extra-constitutional measures for addressing their plight.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be contacted at saad@post.harvard.edu. Follow him on Twitter