The Supreme Court may have given the military courts its seal of approval, but it did not do so without any provisos. Eight out of thirteen judges held that trials by the courts were subject to certain safeguards to insure that a fair and diligent trial takes place. Yet, the same government which heavily cited the judgement to claim that the courts were justified, is now ignoring the recommendations made by the apex court to establish these safeguards. If the government considered the judgement valid – which it must under law – then it must agree to the entirety of it, not cherry pick the clauses favourable to it.
On Wednesday, the Senate passed the Pakistan Army (Amendment) Bill 2015 without including any of the safeguards recommended by the Supreme Court. Having been passed by both houses, only the presidential signature is needed for it to become law; which conventionally is just a formality. During the Debate, the Defence minister, Khawaja Asif, brushed aside all criticism on the premise that the lower house has already discussed them – ignoring the function of the Senate, which is to review the bills forwarded by the lower house. This bullish haste is inexplicable, as the recommendations of the Supreme Court are not demanding nor do they interfere with the functioning of the military courts in any way.
They included: one, that a reference to military courts by the federal government was subject to judicial review; two, the military courts were bound to provide the accused with fair trial and reasonable procedural safeguards and three, the judgments of the military courts were subject to judicial review by the superior courts. All of them reasonable and non-intrusive. The first insures that only terrorists are referenced to the military courts, not political prisoners, and the second is a no-brainer, which no government in the world should disagree with, and the third insures the military courts follow the law. The ability to appeal to a civilian court does not mean that the trial will be held again – with all its security concerns included – it only means that contentious points of law can be adjudicated by competent courts; a[n] impersonal procedure that is often done through written arguments. Had the government listened to the Supreme Court, the military courts could have become a relatively acceptable and uncontroversial institution. In their present state, they are highly secretive, supremely powerful, and completely unaccountable.
Once more the PML-N government bends over backwards to accommodate the military without questioning even the most questionable requests.Only now is discourse in Pakistan going beyond the superficial fact that the government won the Supreme Court challenges to the 21st Amendment, which authorized military courts to try civilians. This new legislation at least provoked some opposition by legislators, and is certain to spark debate in the Supreme Court, where the judges were deeply divided the first time around. (It is a serious oversimplification to say, as this editorial regrettably does, that the Supreme Court gave the military courts a "seal of approval.") Just what is the problem with providing basic guarantees in the 21st Amendment courts, and in conducting them in a way that meets core standards of fairness and transparency?