November 10, 2007
Editorial - The Post, November 10, 2007
Doubtful utility
Unconfirmed reports in a section of the print and electronic media have hinted at the possibility of a change in the Military Act. The proposed amendment would allow the government to set up military courts to hear the cases of civilians accused of attacking army personnel or military installations. Further, the persons suspected of committing acts of terrorism could also be tried in these military courts. Even as the formal promulgation of the ordinance in this respect is still awaited, the reports gain credence in view of the fact that the Attorney General, Malik Abdul Qayyum, is on record as having aired views along the same lines a few days before the proclamation of emergency. The government position and the underlying line of reasoning are not difficult to surmise. The constitution does not allow civilians to be tried by military courts. However, the constitution is in abeyance and the country is being governed by the Provisional Constitutional Order. Thus, the government has the authority to act in spheres where the constitution would have been an impediment. The justification for the imposition of an emergency stemmed from the government’s stated grievance that the superior judiciary was letting off hardened terrorists, notably in cases of missing persons and the Lal Masjid imbroglio. Thus the inefficiency of the normal judicial process was hampering the effort against terrorism. The contention forwarded by some former members of the superior judiciary that the government failed to bring forth enough evidence against the alleged terrorists, however, does not obviate the factual position that the government had apprehensions regarding the effectiveness of the civil courts against the elusive menace of terrorism. All this furnishes the perspective behind the proposed amendment in the Army Act. However, many people would have apprehensions vis-à-vis the efficacy of the proposed strategy to shake off judicial inertia in the light of their historical experience. The memories of stern military justice in 1919 (during the British raj) are too deeply etched in our collective memory to be erased. Our post-independence history too has not been altogether barren in examples of strict, summary and severe justice in military courts. The very exigencies that spur the institution of military courts and the suspension of normal laws necessitate military tribunals being inherently structured to ignore due process. As we have seen recently in the glaring case of the Guantanamo Bay detention facility, proceedings in courts where due process is ignored, more often than not, fail to fulfil the goals forwarded as the justification for drastic procedures. Our law enforcement personnel are neither known for impeccable professional skills nor reputed for high standards of integrity. The fear is that the impunity granted by the rather amorphous legal lattice of military courts may tempt some law enforcement personnel to haul in innocent citizens along with the guilty. Ignoring the unjust destruction of the lives of such innocent accused, there is another and weightier reason to retain the presumption of ‘innocent till proven guilty’. Once the emergency is lifted and the constitution restored, normal judicial procedures will once again be underway. The verdicts handed down by the military tribunals will be challenged by the innocent and the guilty alike. The loose legal procedures adopted by the military courts may see a reversal of their judgements, en masse. Thus, the exercise will end up failing to provide either justice or promptness.
