Saving the turf: The controversy of the 21st Amendment

Military courts are an attempt to make up where other have failed, not replace what should function in the first place

Some of our young barristers are brilliant. Babar Sattar and Ahmer Bilal Soofi now verge on being veterans and are easily at the head of the pack. The newer crop of them is especially impressive. Of them, I am particularly fond of the young Asad Rahim Khan who I wait to read on these pages. He is objective, lucid and well read, though young. But the promise is huge and one will keenly follow the progress of someone like him, who carries such a balanced and mature head on his shoulders. Sometimes though, we all get carried away by our loyalty to the turf that we serve. In a young man like Asad, who to me harbours no agenda but expresses only what to him is right, a deviance stands out. So was one visible in his last piece here on the then yet-to-be passed 21^st Amendment, which enhances the power of the military courts to try terror suspects.

His reason for disagreeing with such empowerment of the military courts doesn’t emerge from any support for terror organisations; far from it, but from the assumed dalliance with the basic structure of the Constitution by creating a parallel system of justice outside the domain of the judicial system as exists under the charter of the Constitution. Two things must be stated at the outset: all state structures, and the judiciary, are creatures of the Constitution; they take root from, and are, because of the Constitution. If and ever the Constitution creates another being or entity, it too is a creature of the Constitution. The military courts thus are also creatures of the Constitution in how they already exist, and in how they have now been further empowered by an amendment to the same Constitution.

The superior courts per their role are appellate courts and responsible for interpreting the Constitution whenever approached. They can also note suo motu any matter of public interest requiring legal or moral qualification. However, being creatures of the Constitution, they also must respect their creating entity. The tussle between the creating entity, parliament, which creates laws and amends the Constitution when needed, and the judiciary that arrogates to itself the role of ‘defending’ the Constitution, is long. That became apparent when the 18^th Amendment was to be passed. The conflicts and contradictions within the judiciary are fabled, and have been rarely addressed either by the courts or by the legislature; save of course the 19^th Amendment when the Supreme Court sought to restore the Supreme Judicial Council’s dominating position in decisions related to the appointment of judges to the higher courts. Only such accommodation of interests enabled the 18^th Amendment to sustain the scrutiny of the higher courts.

The military courts have not been created by the 21^st Amendment as is popularly but incorrectly surmised. These are part of a system in place under the laws that emerge from constitutional provisions. Military men in uniform and those who are subject to the Acts of the three services are tried by these courts based on the type of omission or commission either summarily (ordinary cases of indiscipline), or through the institution of formal courts (serious crimes). The process facilitates full access to defence — sometimes from the reputed legal resource base outside the military, as well as the right to appeal if convicted. What the 21^st Amendment has done is to authorise these courts to try civilians who use terror as a means to inflict damage to any person, installation or entity of the state. An earlier provision of 2004 already permits civilians engaged in crimes against the military to be tried through court martial.

Article 245 that enables the military to act in aid of civil power places the military outside the purview of any challenge to its actions and authority by the higher courts under the same law. The courts are also not empowered to review any punishment awarded by a field general court martial instituted under very special circumstances or while the nation is in a state of war. This has been a long-standing rub, especially the provision instituted under Pervez Musharraf that empowers military courts to try civilians engaged in crimes against the military. Every time a civilian is tried under such authorisation and convicted, the higher courts have always entertained petitions challenging such authority of the military courts. The higher courts are also amenable to petitions by military men when convicted by court martials under the garb of infringement of fundamental rights and have upturned some convictions.

Pakistan’s specific civil-military tenuousness also means that it extends the dissonance to matters of justice. What should only be procedural matters rake sentiments from the past. The judiciary, mostly an abettor to military’s deviations in forging past martial laws, must atone for its omissions. The idealism of young lawyers reflects their unease with such a past and may at times become oblivious to the obvious shortcomings that bedevil our judicial system. What must have been done to claim that mantle of credibility as a system of service remains sadly missing in the inadequacies that have been one major factor in the degeneration of Pakistani society, and less said of the corruption that virtually defiles the entire system.

When Raza Rabbani cries before the Senate when voting for military courts, he in fact cries for the dysfunctionality of a judicial system that has failed to stand up to the needs and expectations of the people in playing its due role in establishing the rule of law and disposing justice in an early and transparent manner. Rabbani’s tears were an indictment of the justice system in the way it has degenerated and deteriorated; and in the way that the courts will refer back the 18^th Amendment to carve out the 19^th in their favour but will not address the inadequacies of laws or processes that can enable them to function in the spirit of justice as conceived by the founding fathers. In such crying, Rabbani is indeed not alone; all of us should feel the same shame. Military courts are an attempt to make up where others have failed, not to replace what should in the first place be functioning more efficiently.

To begin with, we need lawyers and barristers of the class mentioned above to take on the role of public prosecutors rather than gloss under the more celebrated band of defence lawyers. From among the young and bright, are there any takers?

Published in The Express Tribune, January 10^th,  2015.

Like Opinion & Editorial on Facebook, follow @ETOpEd on Twitter to receive all updates on all our daily pieces.