ON Dec 16 last year almost 150 people, mostly schoolchildren, were brutally murdered in Peshawar. In its wake the country decided that business as usual could not carry on and so was formulated the National Action Plan. A key plank of the NAP was the establishment of military courts to ‘ensure’ that terrorists were meted out justice. The argument was based on the premise that civilian courts, even anti-terrorism courts, were either too afraid or too procedurally cumbersome to deal with such cases.

Therefore, even the strongest case for military courts that was made at the time was premised on these ‘special courts’ being required for ‘special times’ — not as a norm. This is perhaps why the 21st Constitutional Amendment, under which the military courts were provided constitutional protection, also has a ‘sunset clause’ ie it is meant to expire in two years’ time.

Yet, on the first anniversary of the Peshawar tragedy, apart from the panacea of military courts there has been very little meaningful or urgent action to ensure that the shortcomings in the ‘normal’ courts of the country are addressed so that a self-perpetuating cycle of justification for military courts is not created.

We were told that one issue is intimidation of witnesses and judges. Well, military courts have so far addressed this problem only by shrouding their proceedings in secrecy. If that were so, then shouldn’t this two-year period be used to build more secure facilities, provide security to judges and also implement witness protection programmes for normal courts? What will happen when two years are over — will the need to prevent intimidation have vanished?

We were told that civilian courts acquit hardened terrorists. But courts are required to act on the evidence before it. The answer cannot be to stop requiring sufficient evidence before people are convicted. Even so, there are no reforms to our law of evidence being made, no reforms in the prosecuting agencies involved, no reforms or training into evidence collection and preservation so that by the time two years are over the perceived problem stands addressed.

No judicial reforms are evident a year after the school tragedy.

This is simply a fundamental and basic point: if military courts are required to address certain shortcomings, and they are admittedly only an extraordinary temporary measure then common sense and good intention requires that in that time period the perceived shortcomings are addressed.

As it is, it is still not clear what exactly military courts do that normal courts could not do — except to expend with the procedures required to ensure that the persons we punish are actually guilty of their crimes. If secrecy is all that was required, it could equally have been provided to anti-terrorism civilian courts.

In fact, it is arguable that it should not be. Justice, publicly and transparently done, with defence arguments heard and countered is a tremendous public good and cathartic experience. It provides closure to the victims’ loved ones, and represents a public statement that societal rules cannot be violated. It represents a victory of the state institutions against those seeking to destroy them.

Military courts provide none of that. In fact, they do the opposite. We have recently been told that four individuals involved in the APS attack have been hanged. Yet, we have no way of verifying that claim, no public record of their trial, no idea of the evidence against them, no idea of what each man’s role was — no real closure.

Instead of urgently pursuing judicial and legal reform, what we have seen is the opposite. As feared, any time a shocking incident happens some public figure or the other makes a call for the individuals responsible to be tried through military courts. When the child sex abuse scandal in Punjab broke out, public figures called for those responsible to be tried through military courts, in fact this was requested in the Lahore High Court as well.

We cannot risk military courts being seen as an alternative to the flaws in our legal system. They cannot become a permanent feature of our judicial framework. There is no point in fighting with terrorists militarily if in the meanwhile we willingly acquiesce to changing the orientation of our state and forego the values that are necessary in any civil, humane and just society. If we do that, then we have already lost what we are fighting to protect.

Military courts were supposed to be a necessary evil. No stakeholder, whether government, military or opposition should be allowed to make the argument two years later that military courts are still required when during the intervening period they have sat by and not taken the required measures to address the perceived shortcomings that necessitated them in the first place.

The writer is a Lahore-based lawyer.

skhosa.rma@gmail.com

Published in Dawn, December 16th, 2015