Saturday, January 17, 2015

A warning against quick fixes in Pakistan

Sahar Bandial
Lahore lawyer and educator Sahar Bandial has written this op-ed for The Express Tribune. She writes, in part:
. . . With court[s]-martial[] presided over by military officers (not necessarily versed in the law or bogged down by procedural trivialities) conferred jurisdiction over such persons, it is expected that heinous criminals set loose by civilian courts on ostensibly legal pretexts will increasingly be sent to the gallows. Constitutional guarantees of life, equality and due process, rendered inapplicable to such trials following the 21st Amendment, will no longer impede the quick dispensation of justice by military courts. The expected consequence: quick decisions; limited room for appeal; a higher rate of conviction; more executions; fewer terrorists; effective deterrence and counterterrorism. The equation appears to fit perfectly. Yet it is incomplete.
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The single-minded focus on the judiciary (which no doubt has its deficiencies) then obscures the critical contribution of the civilian-led prosecution service and police investigation processes to the targeted problem. According to a report published by Asia Society in 2012, the lack of trained police personnel, technological equipment and intelligence capability, weak curriculum, and poor coordination between civilian police and military forces are key to understanding the failure of Pakistan’s counterterrorism strategy.
The ‘extraordinary measure’ adopted by the executive, and fully endorsed by parliament and the military, appears to have been formulated in haste. By merely shifting responsibility of trial and sentencing in such cases from civilian courts to the military, the recent legislative measures may well yield a more laudable rate of conviction (however, with questionable and, probably long-lasting ramifications for democracy and the rule of law). The resort to military courts can at best be a stopgap arrangement. At the end of this promised two-year long military-judicial liaison, the civilian justice system is likely to remain as ill-equipped to effectively handle offences of terrorism. Will the suspension of constitutional principles continue endlessly? It would appear so, unless the criminal justice system is as a whole simultaneously reformed by improving capacity, infrastructure and accountability at all three stages.
The recent constitutional amendment may or may not withstand judicial scrutiny. This op-ed makes the excellent point that, whether or not it does, Pakistan must attend to deficiencies in its regular institutions for the administration of justice. Otherwise, two years will come and go and the country's legal system will be in precisely the same predicament.

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