Earlier this month, Pakistan’s elected representatives voted to cut the ground from under their own feet. Despite the misgivings that some political parties and several individual legislators had, the National Assembly and the Senate ushered in the 21st Amendment to the Constitution under which military courts are to be set up for a period of two years to adjudicate on terrorism-related cases. The political establishment seemed to have fallen in line with the observation of the Army chief, General Raheel Sharif, that military courts had become the need of the “extraordinary times”, a reference to the horrendous attack on a school by Taliban militants in which more than a hundred children were killed. The last time Pakistan had military courts was during the martial law regime of General Zia-ul-Haq in the 1980s. The next military ruler, General Pervez Musharraf, did not promulgate martial law; there were no military courts during his nine-year regime. That Parliament sanctioned the assumption of judicial powers by the Pakistan Army during the time of an elected government led by Nawaz Sharif, who knows only too well the perils of military rule, is a further irony. The move has undermined the hard-fought 2007 struggle of the judiciary for the separation of powers, and is a blow to the country’s fragile democratic structure. There was immense public pressure on the government to do “something” to contain terrorism after the Peshawar attack. Instead of using the opportunity to strengthen investigations into terrorism offences, and put in place mechanisms to protect witnesses and judges from intimidation by terrorist groups, the government grasped all too easily the hand offered by the military, an admission of civilian helplessness.
The courts are to begin trying cases soon. In the eyes of the public, the Army is bound to be seen as being more efficient than the elected government — military trials do end quickly and military-appointed judges may be more daring than those in Pakistan’s civilian antiterrorist courts. But speed does not always serve the interests of justice, and opens up the danger of misuse of the process against innocent civilians, including those involved in legitimate political activity. Years of patronage by the security establishment of terrorist groups have radicalised all sections of society. Pakistan can tackle this malaise only by strengthening its democratic institutions. For New Delhi, the military courts present an interesting albeit double-edged opportunity. India could now possibly make the demand that the cases against the accused in the Mumbai attack should now be shifted to a military court. But while this may speed up the case, there is no guarantee that the chances of conviction would improve.
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