Friday, August 14, 2015

A notable column by the executive editor of The Nation (Pakistan), and some thoughts about the military courts' next phase

From "The Bitter Pill," by M.A. Niazi, executive editor of The Nation:
The dichotomy has been established by the government, and apparently accepted by everyone that while civilian courts are craven and corrupt, their military equivalents, the courts martial, are both bold and honest. However, some things need to be factored in. Court martial depend much on the report of the preceding board of enquiry. Civilian courts depend upon the police investigation. Also, court martial depends on the will of senior officers for a verdict. It must not be forgotten that the officers comprising a court martial depend for their careers on their seniors, and often will not risk offending them in the interests of justice, and have been known to ask what verdict was wanted. High court judges may supervise the lower judiciary, but promotions go by seniority, and thus they cannot affect verdicts. They might overturn them on appeal, but only if the cases come to them for hearing. It is true that the courts martial do not have readers touting for bribes, but recent measures have ensured that verdicts are given according to the merits of cases rather than the relative capacities to pay. The main argument seems to be that the military affords more security to judges and lawyers than the civilian courts. One solution would be to improve that security. That does not seem possible, and the military has been delegated the task.
The author suggests that "the decision by the Supreme Court to uphold the military courts indicates its rapprochement with the Army, and may mean not only a hesitation to apply the Salient Features doctrine, but also a re-establishment of the military-judiciary nexus that allowed the validation by the Supreme Court of all the four martial laws imposed since 1958."

From a distance, one wonders.

1. Already there is litigation over access to records of trial in order to permit meaningful appellate review. Will those litigants prevail in the High Court or, failing that, in the Supreme Court?

2. There are military court defendants on death row. Will the Supreme Court provide the promised review? Will that review be limited to questions of jurisdiction, bad faith, and coram non judice? What if, for example . . .
  • the elements of the offense were not proven beyond a reasonable doubt
  • evidence was admitted or excluded in error
  • evidence was obtained by torture
  • the accused was denied effective legal representation
  • the accused was not permitted to cross-examine a witness or was denied access to evidence
  • the trial was held in secret or in a venue from which the public was effectively excluded
  • command influence was exerted over the members of the court-martial
  • the accused was denied a speedy trial
In the next phase of the military courts controversy, the issues will be more granular and less philosophical. How will they be resolved?

3. There are increasing demands -- including from the Sindh Assembly and a telling tweet from the wife of a sitting Chief Minister -- to expand the jurisdiction of military courts to include the current child pornography scandal. Will those demands gain legislative traction at the national level? Will parliament, taking no chances, once again resort to amending the Constitution? Will the Supreme Court turn out to have merely kicked the can down the road?

4. The 21st Amendment sunsets on January 7, 2017, which is less than 17 months off. What steps will Pakistan take to get its act together with respect to the administration of justice through civilian courts before then? So far, nothing seems to have been done to that end. Even assuming aggressive steps are taken and -- miraculously -- the problems that have plagued the civilian courts are addressed in time, what will become of the cases that remain in the military courts when sunset does occur for the 21st Amendment and its implementing legislation?

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