Why military courts?

Two judges of the Supreme Court, separately, have taken exception to the prime minister's remark during a meeting with leaders of business community on Wednesday that though 'independence of judiciary is essential, it is equally important that it must show its performance'. And, he also fully owned up the parliament's decision to establish military courts, insisting not a dictator but the democratic dispensation had asked for this. No less assertive endorsement of the decision to set up military courts to try terrorists has been made by Army Chief General Raheel Sharif. Addressing a dinner reception in London, he said these courts have been set up with the consent of the people of Pakistan. DG ISPR Major-General Asim Saleem Bajwa told another gathering in London that military courts will deal only with terrorists and are a stop-gap arrangement created due to "existing capacity issue" of Pakistan's judicial system. There is no question about legal and democratic credentials of military courts which have been set up in line with the dictates of the 21st Constitutional Amendment passed unanimously by the parliament. And vox populi has welcomed the move, helpless as it had felt in face of looming spectre of terrorism. It is an extraordinary situation that warranted an extraordinary solution, which these military courts are said to be. But this is also a fact that from day one the establishment of military courts didn't sit well with the lawyers fraternity, and once the amendment allowing the parallel judicial system was passed the religious parties also joined the detractors' club - but for quite different reasons. The legal community opposed military courts because they find them a negation of the bedrock dictums of jurisprudence that everybody is innocent until proven guilty and that nobody should be punished unheard. The religious parties are equally concerned about the intrusion of government mandated by the new law in the affairs of seminaries run by them. But what earned the military courts rebuff of the apex court's judges seems to be different; perhaps, but for the expressions like 'performance' and 'capacity' they would not have spoken.
And what the two judges, Justice Asif Saeed Khosa and Justice Jawwad S. Khawaja, observed during hearings of cases before them, about the justification for the military courts is as much showing the mirror to the government as assertion of the superior judiciary's role as defender of people's basic right of fair trial by a court of law. The judges were of the opinion that courts are meant to dispense justice; and their verdicts are made as retribution and essentially not as deterrence. Also, terrorists were not punished, they say, it is mainly because of incomplete challans, poor investigations, weak prosecution and paucity of judges. It is not the courts but the executive that has not performed. Pendency is because of shortage of judges of trial courts - averagely, each judge has around 700 cases to hear and decide - and the government is not prepared to recruit more judges. However, looking closely into the merits and demerits of the controversy one finds both sides are correct in positions that they have taken, especially in cases of terrorism in which witnesses don't turn up before courts fearing reprisals. For instance, take the murder case of Shahbaz Bhatti that has been now sent by the police to a military court. Welcoming the move, the All Pakistan Minorities Alliance (APMA) pointed out it was the extremists' threats that hampered the trial - a TTP pamphlet was found in the office of the key witness. For the same reason the case of Chaudhry Zulfikar who was killed while he was on his way to attend proceedings in the Benazir Bhutto assassination case has also been sent to a military court. Unlike some other countries where a witness is protected we don't have a matching system, and perhaps we cannot have it. The court cases are attended by a large number of people, making almost impossible to camouflage the true identity of the witness. But, above all, the under-trial terrorist is part of a terrorist outfit that would spare no tool to ensure that witnesses don't turn up to give evidence. So, if there is an opinion that military courts would undermine the present judicial system of Pakistan then there is also a question: how to bring to justice the criminals who are too fearsome to be identified in the open court.