Law and Order | Najam Sethi

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The debate over the scope of military courts has abated. The PPP and PTI have succeeded in overcoming the objections of the religious parties to retain the reference to “religion inspired acts of terrorism”. But the PPP is still sticking to its position that the scope of the constitutional amendment should be restricted to ensure that mainstream political parties are not “victimized” by the law on non-religious grounds. Its fears stem from the rough handling it has received at the hands of the military establishment in Karachi that has tried to establish a link between the financial proceeds of corruption in office and militant non-state actors who can be described as “terrorists”. The proposed new Act enlarges the scope of the military courts but has a sunset clause that keeps them operational only for two more years. If the PPP continues to stick to its position, a joint sitting of parliament will be needed to pass the legislation because the PPP can stall it in the Senate.

The need for military courts for summary “justice” of predominantly civilian actors arises because the civilian courts have failed abysmally to deliver the goods despite the prevalence of a multiple tiered “justice” system and a two-track jurisprudential philosophy. No serious attempt has been made to implement the various reform reports on the subject either by the executive or by the judiciary itself. Who is at fault and why?

Naturally, the finger points at the executive branch of government. We need many more judges. We need better-educated and trained judges. We need better witness protection programs no less than better-judge-lawyer protection security. We need a separate, highly trained and motivated department of government for prosecution. Once all this is accomplished we may consider restricting the appellate jurisdictions for the sake of quicker justice – the Supreme Court, for example, could be a constitutional court only, as is the case in many countries. And so on.

But the fact remains that without the cooperation and support of the bar and bench no well-meaning legislative or executive action aimed at reforming the judicial system is likely to bear fruit. If judges are inclined to accept frivolous petitions galore without even a glance at the nature of the prayer and blithely grant “stay” orders against any change in the corrupt status quo, how is the cause of justice served? If lawyers are inclined to seek interminable adjournments because they haven’t prepared their case or are overburdened by their workload, and judges are inclined to accept their every excuse, how can the notion of “justice delayed is justice denied” ever be upheld?

The empowerment of the bar and bench in a democracy is supposed to be good for justice. But the opposite is probably truer in Pakistan than anywhere else. The lawyers’ movement in 2007-09 was double-edged. While it certainly empowered the bar and bench and enabled them to shrug off the executive’s historical arbitrariness, it also politicized both to unmanageable proportions.

A new breed of youthful and aggressive lawyers has risen that sees nothing unbecoming in physically clashing with the police and openly threatening, contemning and even abusing judges. Yet one cannot recall any case of a judge sending any lawyer to prison for such transgressions of law and order. Indeed, the laws of defamation and contempt of court are rarely applied in this country, which is a recipe for character assassination and miscarriage of justice on an unprecedented scale because it distorts the very notion of “freedom with responsibility”.

Equally, many judges have become more arbitrary and cavalier. One reason is the greater weight now given to politically inspired appointments in the judiciary by the judiciary itself. Iftikhar Mohammad Chaudhry’s tenure as Chief Justice of Pakistan was marred by the appointment of many second-rate lawyers to the higher judiciary merely because they had served the political aspirations of their mentor. The higher judiciary’s reluctance to clean its Augean stables is also conspicuous. How many openly errant or defiant judges have been “sorted out” by the Supreme Judicial Council? A significant role in this aberration of justice has been played by the constitutional amendment that enables the judiciary to regulate and appoint itself without any executive or legislative oversight. This judiciary can hold everyone accountable but no one can hold it accountable. From being a colonial handmaiden to the executive to becoming completely unaccountable, the pendulum has swung to the other extreme. Such a judiciary is not likely to deliver quick and transparent justice across the board. It is even less likely to stand firm in the face of terrorism, especially religious inspired terrorism in a religiously inspired state and religion-permeated education system, that thrives on violence and blackmail.

The necessity of military courts is therefore explicable in these existentially trying circumstances. The danger is that they may lull us into allowing the normal civilian system of justice to plunge into greater disrepair instead of spurring us in the direction of judicial reform for better and speedier justice.