Need to reform criminal justice system

We need to get our act together.

Our criminal justice system is a broken heap of inefficiency which we continue to ignore. After the attack on the Army Public School in Peshawar, we admitted that our regular courts just couldn’t handle the intractable problem of holding trials for those accused of terrorism. This was the entire point behind getting military courts to do the job that the judiciary apparently could not do. But back then an express constitutional promise was made: military courts would be a temporary measure while we worked on fixing our regular courts. Yet here we are in 2019 thinking about extending their tenure.

Since that fateful day in 2014, when we woke up to the realisation that our court system was broken, what exactly have we done to fix the problem? Nothing much, is the simple and factual answer that exists. We need to understand how problematic that answer is. The fact that we are debating whether or not we still need military courts for the trial of those accused of terrorism shows that since 2014 no political party has been serious about actually improving the criminal justice system. Today, almost five years later, the system is still as broken as ever. Magistrates and district judges lack basic protection against threats to their lives; trials drag on for years and years; witness protection is a non-existent concept; the police lack the training to handle terrorism-related violence. You get the picture. The problems roll off the tongue. So accustomed to them have we become.

The significant drop in terrorist-related violence seems to have vindicated proponents of military courts and caused politicians to look the other way regarding criminal justice reform. As long as terrorism goes down, approval ratings go up. Why then expend political capital towards criminal justice reform?

I think we can identify a few reasons. First, because military courts, for their very existence, require us to sacrifice a number of constitutional rights and safeguards. The reason these courts are more efficient at convicting people is because they often don’t have to bother with many procedural protections that are given to an accused in regular trials. The now-defunct Protection of Pakistan Act was a master class in doing away with the due process rights of the accused and was quite a handy law for getting convictions. But such instruments and institutions infringe our constitution’s guarantee of a fair trial and due process. The point of having fair trials isn’t, contrary to popular belief in Pakistan, so that liberals can gush over all the dirty terrorists walking free. The point of having a fair trial is to make sure that innocent people are not sent to the gallows just so that we can keep up appearances. A fair trial allows us to say, with some degree of certainty, that the people we are convicting are, beyond all reasonable doubt, guilty. Until you have a court system that guarantees due process, our nation’s conscience should prevent us from sleeping at night.

Second, military courts go against the constitution’s principle of separation of powers. The executive branch has no business exercising judicial powers. The only way we could have such a system is by playing fast and loose with our constitution. We manoeuvered and created an exception to the constitution’s provision that prohibited such an arrangement. This was an indication of nothing else but the fact that we did not trust our criminal justice system to deliver. What kind of nation openly admits this and then ignores the problem for four years! The constitution promises the separation of powers for a reason, it keeps the executive separate from the judicial branch for a reason: because when institutions overlap you increase the probability that one institution will play judge, jury and executioner.

We need to get our act together.

We need to convince our leaders not to extend the tenure of military courts. Rather, we need to convince them of enacting proper criminal justice reform. It is our fault in the end if this does not happen. Because we don’t elect people on the basis of how much they respect the constitution. We elect them on the basis of populist tendencies, ethnic brotherhood, or some strange concept of ‘experience’ in which actual results don’t seem to matter. Until our country’s attitude towards liberty changes, we will continue to sacrifice liberty at the altar of security.

Published in The Express Tribune, January 15^th, 2019.

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