When the 21st Constitutional Amendment was enacted, in that painful shadow of APS Peshawar tragedy, many believed (and still do) that military courts were a necessity within the context of our judicio-legal paradigm. However, a few thinking individuals argued that military courts were the answer to our judicial woes; that the only long-term solution for countering terrorism (lawfully) was to strengthen the substantive, procedural and evidentiary aspects of our criminal justice system, and in particular the Anti-Terrorism Act, 1997. However, such academic and long-term arguments were lost amidst the deafening clamor for immediate relief. And resultantly, a unanimous parliament enacted the 21st Constitutional Amendments, granting military courts the jurisdiction to try and sentence terrorism suspects.

At the time, amidst fears of summarily surrendering civilian/judicial territory to the military establishment, it was conceived that the military courts would function for a “temporary” period of 2 years, during which time the civilian and judicial leadership would introduce the necessary reforms to ensure that terrorist suspects can be effectively tried in our regular courts.

As feared, despite the lapse of this (2-year) period, no meaningful reforms have been introduced in order to restore public confidence in the functioning of our judicial paradigm. Consequently, over the past few months, PML-N leadership has been rallying other political parties to extend the validity of military courts, through enactment of a fresh constitutional amendment. And for this purpose, after much back-stage haggling, the government has introduced the Constitution (Twenty-Eighth Amendment) Bill, 2017 as well as the Pakistan Army (Amendment) Act Bill, 2017.

To this end, the ‘statement of objects’ of this proposed constitutional amendment declares, “extraordinary situation and circumstances still exist, which demand continuation of the special measures adopted for expeditious disposal of certain offence[s] relating to terrorism, waging of war or insurrection against Pakistan.” And that therefore, “terrorist groups including any such terrorists fighting while misusing the name of religion or a sect or by committing grave and violent act of terrorism against the state be tried in these [special military trial] courts.”

While most opposition parties have agreed to support this constitutional amendment, three (noteworthy) political parties have opposed the extension in the validity of military courts: the PPP, MQM, and JUI-F. And each has its own peculiar reasons for opposing this proposed amendment.

PPP opposes the extension in validity of military courts from an ideological perspective, and wants more protections built into the appellate process. The MQM, despite its rhetoric to the contrary, fears that if the military courts stay valid, it is only a matter of time that their scope is enlarged, and ‘terrorists’ from Karachi are tried through khaki justice (as was done by PML-N government in the 1990s). And JUI-F, in order to appease its political base, has objected to the fact that these military courts try ‘religious’ terrorists… some of whom might find sympathy amidst JUI-F members.

From a constitutional perspective, the clamor for extension in the period for military courts is as abhorrent as was the creation of these courts. It militates against the spirit of constitutionalism. A national consensus on the creation of military courts, as a draconian last resort, lays bare the decadence of public confidence in our civilian judicial structure, and the ability (or courage?) of the judicial organ to fearlessly convict religious terrorists, in accordance with the spirit of Anti-Terrorism Act, 1997, and the Protection of Pakistan Act, 2014. The natural and necessary measures to fix this rot should have been an overhauling of the Anti-Terrorists Courts, and an evolution of the judicial philosophy towards conviction of religious militants. A bereaved nation, however, that has buried thousands of innocent souls in the abyss of terrorism, seems to no longer care about the technicalities of constitutionalism and the due process of law. They want justice (revenge?), and they want it yesterday! In this fit of rage, who can argue the nuances of judicial structure and legal protections with a mother whose two sons were blown to pieces in the name of religion?

Throughout world history, such courts have only been established either under totalitarian regimes, or in times of national exigencies, when no other option could rescue the state from its existential crisis. Even then, such courts have been established almost in defiance of legal protections to the contrary.

At its core, the call for establishment and extension of military courts, is an acceptance of the failure of our judicial process. Pakistan, and her people, seem to believe that no reform of the Anti-Terrorism Act, no restructuring of our civilian judicial process, and no measure of additional funding for ‘Access to Justice’ can jolt the judicial arm of this nation out of its slumber.

But in such a case, why stop here? Why stop at entrusting just the (terrorism) suspects to military courts? The rot and inefficiency of our legal paradigm (for which the Bar is equally to be blamed!) is far deeper in other areas of litigation. Why should the 80-year old Allah Ditta spend the rest of his feeble days chasing after the trial of his son’s murder, which has been stuck in the Sessions court for almost a decade? Why must Bashiran Bibi suffer the slings of our civil courts, for the better part of her life, before she and her daughters can see a penny from the husband’s inheritance? Is their pain invisible to our conscience simply because it is not dripping in blood?

If military courts are the solution to our judicial woes and the sclerotic pace of our justice system, then should we not entrust all other branches of law to khaki justice as well? Should we dispense with the entire constitutional judiciary, and instead create military criminal courts, military inheritance courts, military land courts, and military corporate courts?

Unfortunately, we may not be too far from the day that our people clamor for such alternatives. Over the past two years, our polity (and the judiciary) has been too entangled in issues such as Panama Leaks, and no meaningful legal reforms of criminal justice system have been introduced. And as a result, the military courts will continue to extent as an eyesore on our constitutional fabric. Be that as it may, it must now the first and foremost priority of the government, and the legal fraternity, to reform our criminal justice system. And to introduce reforms that fix the rot, and forever banish this demand of military justice from our land.