ISLAMABAD: As a full bench of the Supreme Court prepares to take up challenges to the 18th and 21st amendments to the Constitution on April 16, the sudden sentencing of six Tehreek-i-Taliban Pakistan (TTP) militants has sounded alarm bells among the country’s legal and political circles.

For most critics of the military courts, the primary concern is the mystery surrounding the trials; no-one knows who the convicts were, what the specific charges against them were or what their defence was.

While no-one opposes the awarding of exemplary punishment to terrorists or militants who have slaughtered innocent people or attacked security forces, retired Justice Tariq Mehmood, a former Supreme Court Bar Association (SCBA) president, believes that the constitutional guarantee of a fair trial under Article 10A should not be trampled upon at any cost.

Take a look: Military courts announce death sentences of six convicts

“No-one should have any sympathy for the militants and the death penalty can be awarded to them, but the nation must know,” he said, adding that a tweet by ISPR Director General Maj Gen Asim Bajwa was not enough.

He expressed fears that the military court verdict might be upheld by an appeal court headed by a senior army officer, which would defeat the very purpose of an appeal.

According to him, the judicial system never functions in a way where nobody is aware of the charges against the accused, nor do they know whether the accused was afforded the opportunity of mounting a defence.

The least the ISPR could do was to issue a press release explaining the specific charges the militants were prosecuted under, what their defence was, who was engaged to defend them and what the findings of the trial court were, Justice Mehmood said.

“This is the opposite of what used to happen in 1977 under the martial law regime of Gen Ziaul Haq. At that time, a magistrate used to sit alongside an army colonel and the accused were allowed to engage a lawyer of their choosing,” he said.

A similar procedure was adopted during the martial law of Gen Yahya Khan, recalled a former Supreme Court judge, retired Justice Wajihuddin Ahmed. He said he had personally defended a number of accused before those military courts.

“Protecting witnesses, prosecutors and judges is of paramount importance, but justice should not be compromised at the altar of quick dispensation,” he said.

“But how can we blame the military courts when parliament, while adopting the 21st Amendment, failed to foresee these problems and did not provide any safeguards against such situations,” Justice Mehmood lamented.

He recalled a similar exercise carried out by Gen Pervez Musharraf in 2002 when he tried to establish military courts, but even he had to drop the idea in the face of a public outcry and a barrage of litigation filed before the Lahore and Balochistan high courts.

“Terrorists don’t recognise the Constitution, but we as a nation cannot sidestep its dictates,” Justice Mehmood said, adding that the state “never takes revenge”.

Senior Supreme Court lawyer Ali Zafar explained that there was a widespread perception that only military courts could convict terrorists and some secrecy had to be maintained to protect witnesses and prosecutors. However, punishments without judgments to back them up were bound to create doubts in the minds of the people, he said.

“We cannot do away with the basic rights of the people and the norms of fair trial,” he concluded.

Advocate Inamur Rehiem, a former member of the Judge Advocate General branch of the army and a veteran of military courts, said that by ignoring transparency, a dangerous trend was being introduced.

“Justice should not just be done expeditiously, it should also be seen to be done,” he observed.

Political clarity

The political leadership that ensured the passage of the 21st Amendment, however, seems clearer on the objectives and consequences of their actions.

PTI MNA Shafqat Mehmood, who attended the all-party conference (APC) held to discuss the option of military courts, told Dawn that “the exact modus operandi of military courts wasn’t discussed at that time”.

But he said that the very purpose of these courts was to ensure the speedy trial of ‘jet-black terrorists’ with proven track records.

“Personally, I’m not surprised with the level of secrecy that military courts are observing, because, in the past there have been frequent incidents when judges were threatened by the accused,” he said. Mr Mehmood recalled the case of anti-terrorism court judge Syed Pervez Ali Shah, who had to flee the country after he sentenced Mumtaz Qadri to death for the murder of Salmaan Taseer.

However, his party colleague, Dr Arif Alvi, who was also present in the APC, said that whatever methods were employed during these trials, all the details must be shared with the media and the accused should be accorded a fair chance to appeal after their conviction.

“The option of in-camera trials was discussed during the APC, but I believe there shouldn’t be miscarriage of justice. This is only possible if the details of processed cases are presented for public scrutiny.”

Former information minister and PPP spokesperson Qamar Zaman Kaira said Barrister Aitzaz Ahsan and other legal experts from the party, who attended the conference, had pointed out at the time that the transparency of the trials shouldn’t be compromised. “Honestly, there was no discussion on the nitty-gritty of the military courts, because we all thought they would operate as they always had and that lawyers would have unhindered access to their clients,” he said.

Senior PML-N leader and former senator Zafar Ali Shah said he had opposed the setting up of the military courts for this very reason. “Nobody knows who the accused are, how much time was spent on the trial, and most importantly, what would be the process of appeal. Instead, were are told that such and such decisions have been passed,” he said.

Mr Shah, who is also a Supreme Court lawyer, contended that this was the very purpose of military courts and those who were now questioning their secrecy were doing so for the sake of argument. “I am all for harsher punishments for terrorists, but in such trials there is always a chance that an innocent person may also be awarded undue punishment,” he said plainly.

Published in Dawn, April 4th, 2015

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