Pakistan's military courts proposal

In the wake of the Peshawar school massacre, Pakistan's unfortunate lurch towards military courts continues. Two stories have appeared overnight that readers may find of interest. The first, in the estimable The Dawn, quotes the railways minister, Khawaja Saad Rafique:

“Summary trial courts to be set up now and the ones formed by military dictators in the past have no comparison and are poles apart,” the minister said while talking to reporters after inaugurating the refurbished bogies of Hazara Express here on Thursday.

“Earlier summary trials were imposed by military regimes. But now such courts will be formed by political leadership of the country with a consensus (among parliamentary parties) to enable the government to take decisive action against terrorism and extremism of all kinds,” he said.

In an extraordinary situation, he said, the Constitution allowed setting up of such courts for a certain period. “We are at war with terrorists. In such an extraordinary situation, military courts were set up even in the US,” Mr Rafique said. [Emphasis added.]

Ouch.

The second article, in The News International, reports on pushback and points out that the new courts will not be subject to oversight by the civilians courts:

Senator SM Zafar, while talking to The News, confirmed that no appeal whatsoever could be filed before any civilian court, including any high courts or the Supreme Court, in cases tried by the military courts.

“If you will appoint any executive officer, civil or military, on a judicial position, it will be simply against the independence of the judiciary,” said top lawyer Khawaja Haris. “The independence of the judiciary is an integral part of the basic structure of Pakistan’s Constitution and neither can any amendment to the Constitution nor any other legislation be done against any element of the basic structure of the Constitution,” he said.

“Any possibility of setting up such a special court was eliminated from the Constitution through the 18th Amendment, and now doing anything like that will be tantamount to reversing constitutional reforms. The government is admitting its failure and incompetence to make any proper strategy and to counter terrorism and now wants to use the crutches of military courts, which can only disturb the institution’s fight against terror, make it controversial. But setting up such courts will also be counterproductive by all means,” said former senior judge of the Supreme Court, former chief justice of the Sindh High Court, Justice Wajihuddin Ahmad.

“The only way forward could be to set up a new anti-terrorism court comprising good judges, making arrangements for speedy but fair trial and also setting up special benches in the apex court,” he said.

Whatever one may think of the United States military commissions being conducted at Guantanamo Bay, Cuba, their judgments are subject to appellate review by the civilian United States Court of Appeals for the District of Columbia Circuit and the Supreme Court of the United States under § 950g of the Military Commissions Act of 2009.