"Should the military fight crime and dispense justice" was the question addressed from several perspectives in this recent, worthwhile Herald panel discussion in Pakistan. Here are some excerpts:
Our courts have almost always considered themselves to be subservient to the military. Judicial decisions against military rule surface only after a dictator has left. All the decisions against Pervez Musharraf’s rule are coming out after he is no longer in power. The decision in the Asma Jillani case against Yahya Khan’s military government, too, came after Yahya’s rule had already ended.
Individual judges, however, have tried to introduce measures against the encroachment of civilian turf by the military. For example, in the Nusrat Bhutto case, Zia’s takeover was condoned, but after that the high courts said the military regime could not try civilians in military courts. Chief Justice Iftikhar Muhammad Chaudhry’s decision on a petition by the Sindh High Court Bar Association against the imposition of emergency rule by Pervez Musharraf in 2007 became possible only because there was public resentment over prolonged military rule. But when the superior judiciary sees the army, civilian institutions and a majority of the media on the same page, then at the end of the day, they are just 17 old men.
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Now if we are talking of the constitutionality of the military courts, we must keep in mind that there have always been military courts within the military. If they can try military men, then why can’t they try civilians? Also, military courts are not going to stay forever. They are being set up for only two years. Their second important feature is that every case is first vetted by the provincial government and then by the federal government before it is finally sent to a military court. So, there is a filtering process [in place].
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As an office-bearer of the Karachi Bar Association, I keep meeting judges who deal with sensitive cases and are getting threats. An army man, surrounded by an army unit, holding trial in some military area and living in a garrison will definitely have all the wherewithal to issue quick verdicts and award strong punishments which another judge travelling long distances from his home to the courtroom in a small unguarded car does not have.