LAST week, the Supreme Court suspended the death sentences of four men convicted by military courts for terrorism-related offences. The court directed the attorney general to produce their case records so it could determine whether the convicts had been provided reasons for their convictions and sentences.

The Supreme Court’s order is encouraging. In August last year, the court let down the cause of human rights and the rule of law when it upheld the legality of the trial of civilians before military courts — it can now act to ensure that at the very least, the procedures of military courts meet basic standards of fairness.

How far the Supreme Court (and, for that matter, high courts) can effectively intervene to ensure people convicted by military courts have been tried fairly depends on two factors: first, the legal framework regarding the civilian judiciary’s jurisdiction over military courts’ proceedings and judgements; and second, the will of the civilian courts to uphold the cause of justice, even if it means defying the military and the executive authorities.

Let’s consider the question of jurisdiction first. The 21st Amendment provides that the Army Act, 1952, under which military courts operate, is exempt from the application of Article 8 of the Constitution, which states that laws that violate fundamental rights shall be void. It also provides that constitutional provisions relating to the independence of the judiciary will not be applicable in terrorism-related cases that are tried by military courts. 

The Supreme Court must ensure that procedures of military courts meet basic standards of fairness.

Furthermore, the Army Act bars civilian courts from hearing appeals against judgements delivered by military courts, and Article 199 of the Constitution (relating to the jurisdiction of high courts) states that high courts may not intervene in cases where an application is “made by or in relation to a person … who is for the time being subject to any law relating to any of those forces”.

However, over the years, courts have chipped away at these jurisdictional limitations in the interest of justice. As elaborated by decades of jurisprudence, high courts may exercise their review jurisdiction under Article 199 of the Constitution to intervene (مداخلت کرنا) in military courts’ proceedings on the grounds of coram non judice (decided by a court that lacks authority), mala fide (made in bad faith), or lack of jurisdiction. The Supreme Court in the 21st Amendment judgement reiterated this power to review judgements on the grounds stated here.

As an illustration, the Lahore High Court used this power a few years back to commute a death sentence given by a military court to an army officer (in a case unrelated to terrorism) after concluding that the military judges who sentenced him “had not been given the correct legal advice as to the quantum of sentence”. Many more examples are available.

Other relevant provisions specific to the Supreme Court include Article 187 of the Constitution, which gives the Supreme Court “power to issue such directions, orders or decrees as may be necessary for doing complete justice”. The Supreme Court has interpreted this to mean that if “dictates of justice demand”, “technicalities and formalities should not fetter (محدود کرنا) its power”. In addition, Article 184(3) gives the Supreme Court jurisdiction over matters of public importance that relate to fundamental rights. (The court assumed jurisdiction over the cases of “missing persons” using this provision.)

As can be seen, the constitutional limitations on the jurisdiction of the superior judiciary, particularly the Supreme Court, are themselves subject to other constitutional considerations that allow courts the flexibility to act to ensure respect for the right to a fair trial, including under international human rights standards. Regrettably, the superior judiciary has thus far construed its review jurisdiction narrowly in terrorism-related cases, denying the right to effective remedy to a number of suspects even where gross violations of fair trial have been alleged.

Since January 2015, high courts have dismissed petitions on grounds of jurisdiction even where families of people convicted by military courts for terrorism offences have alleged their sons, fathers or husbands were tortured into ‘confessing’ their involvement in terrorism; were not given the right to engage counsel or call and cross-examine witnesses; were subject to enforced disappearance and remained ‘missing’ for many years before being produced before a military courts for trial; were denied judgements with reasons for their conviction (جرم ثابت ہونا); were children under 18 years at the time of the alleged offence; or were tried in secret proceedings and held in secret detention. 

The Lahore High Court, for example, recently dismissed a petition made by the father of a suspect convicted and sentenced to death by a military court, who claimed his son was forcibly ‘disappeared’ in 2010. The court’s order did not address the allegation of enforced disappearance, but instead held the petitioner had “failed to establish the required elements so as to review the order of military court while sitting in writ jurisdiction…”

In another case, it held that it could only intervene in judgements passed by military courts where petitioners could prove malice (بغض )or political victimisation — allegations of violations of fair trial and torture and ill-treatment were not in themselves sufficient. 

In December 2015, the Supreme Court suspended the death sentences of two alleged terrorists convicted by military courts and referred their cases to the chief justice to constitute a larger bench to decide the emerging fair trial issues in the operation of military courts. Two months later, a larger bench of the Supreme Court will finally commence hearings from Feb 18.

The government has a legal duty to investigate, prosecute and punish perpetrators of terrorism. However, counterterrorism measures must be lawful and also be seen as legitimate. As Justice Khosa observed in his dissenting opinion in the 21st Amendment judgement: “compromising justice for combating this menace (terrorism) may be a death knell for the value system of the entire nation of more than 180 million people.”

Many analysts say the Supreme Court ‘compromised justice’ when it legitimised trials of civilians before military courts in the 21st Amendment case. As it now considers petitions from families alleging gross violations of the right to a fair trial in military courts’ proceedings, it has a chance to — at least partially — correct that wrong.

The writer is a legal adviser for the International Commission of Jurists.

reema.omer@icj.org

Twitter: reema_omer

Published in Dawn, February 16th, 2016

IS Pakistani democracy a barren tree which will never produce the fruit of good governance? Not only sceptics (شک کا شکار لوگ)but even previously strong supporters of Pakistani democracy are arguing so. Going by comments on our governance conundrum (معمہ) it would appear that some analysts have concluded that our soil, gene and climate are not suited for democracy, and that a hybrid system, with the military pulling strings behind the scenes, suits us better. 

I find such conclusions flabbergasting (حیرت میں مبتلا کر دینے والا) since soil, gene and climate were not the correlates of democracy that I was taught at Berkeley. However, the army seems enamoured (عشق میں گرفتار) with this piece of advice for we see its heavy boots, invisible hand and fingerprints in ever-expanding domains: the appointment of an ex-general as national security adviser, the possible induction of a former military man as KP governor, and plans for a civilian-military apex committee for the China-Pakistan Economic Corridor. 

Fortunately, Raheel Sharif, the desired ‘Moses’ of dozens of Pakistani tribes that have been waiting impatiently for decades for a horse-mounted saviour against Pakistan’s pharaoh-like politicians, has refused extension and that role.

This naïve (نادانی پر مبنی) belief in military rule, overt or covert, is popular in Pakistan but not regionally. Take India. It has stuck resolutely with democracy even though for five decades its economic growth rates were lower than those of autocracy-prone Pakistan. 

Invariably, democracies get better and autocracies worse with time.

The contrast was especially vivid in the 1960s when autocratic Pakistan was galloping  (سر پٹ دوڑنا) along at 6pc to 8pc growth rates while democratic India was stuck with around 3pc growth rates. This led a frustrated Nehru to even call, perhaps with an envious eye across the border, this the Hindu rate of growth. However, not even then did Indians succumb to the false allure of dictatorship. And for this show of wisdom, they were ultimately rewarded amply. The Ayub development model soon collapsed. Mortifyingly for ‘pious’ and ‘patriotic’ Pakistanis, the Islamic republic is stuck today with ‘Hindu’ growth rates while India is galloping along at 6pc to 8pc growth rates. 

Similarly, Bangladesh, Sri Lanka and Nepal’s results with democracy have been mixed. Yet I find little longing for autocracy there. In fact, my regional friends laugh at our penchant (جنون) for autocracy and treat our tragic experiences with dictatorship as reasons for rejecting it. Their preference for democracy is not tied to any short-term ability to facilitate development better than dictatorship. They view democracy as an intrinsic (قدرتی طور پر وابسطہ) reward in itself for self-respecting people who trust their own judgement and value the right to choose their own rulers. 

They realise that even if short-term experiences with it are negative, one must still stick with democracy as its longer-term edge is undeniable. Invariably, democracies get better and autocracies worse with time. This disregard of democracy’s intrinsic value is especially puzzling among otherwise highly honour-sensitive Pakistanis who deeply resent foreign slights (بے عزتی). Yet, they embrace the self-deprecating (خود کو مسترد کر دینے والا) belief that we are not ready yet for democracy. 

Pakistan’s experiences with democracy have not been really much worse than regional ones, but our experiences with dictatorships have certainly been so. No regional country has experienced the toxic cocktail of secession, extremism, sectarianism and terrorism that Pakistan has under dictatorship. Yet, some crave for it still! 

Pakistan’s three dictatorial experiences can be summarised thus: three to five years of administrative efficiency and economic growth (mostly superficial or elitist) followed by economic downturns and severe conflict and violence due to the long suppression of democracy. By their eighth and ninth year, all three prolonged dictatorships had run out of steam and it was clear that their continuation would harm Pakistan badly. Their economic miracles vanished im­­mediately but their negative political legacies have hau­nted (آسیب زدہ کر دینا) Pakistan for decades. 

In contrast, for the first time in Pakistani history, its democracy is in its eighth uninterrupted year and things are looking increasingly brighter going forward both economically and security-wise despite weak governance. Democracy’s slow but steady tortoise is gradually but surely overtaking autocracy’s fast but unsteady rabbit.

Political collapse is a serious threat for deeply fractured states like Pakistan. Democracy’s edge over dictatorship is crystal clear here. Almost all states which collapsed in the past were autocracies and not a single established democracy has ever collapsed. 

Pakistan collapsed once under dictatorship in 1971 and became perilously (خطرات کا شکار) placed under Zia and Musharraf. The chances of collapse have steadily shrunk since 2008. Thus, one must be realistic about the nature of democracy’s fruits for states like Pakistan. The fruits are not rapid economic and governance improvements but greater guarantees against political collapse immediately and slow but steadier economic and governance improvements in the long run.

The writer is a development and political economist.

murtazaniaz@yahoo.com

Published in Dawn, February 16th, 2016

OPPOSITION lawmakers throw tear-gas canisters during a session of Kosovo’s parliament in Pristina in October 2015.

PRISTINA: Eight years after ethnic Albanians joyously declared Kosovo’s independence from Serbia, chaotic scenes of MPs releasing tear gas in their parliament hardly gives the impression of a successfully functioning state.

But Albin Kurti, an opposition deputy and ringleader of the recent dramatic protests, says such radical measures are the only way to save Kosovo.

“Perhaps people will be a bit shocked,” Kurti told AFP at his party office in the capital Pristina, after his release from a stint in jail and house arrest over his activities.

“But I think the majority of people will understand that there must be some terrible hardship for this country, there must be some great danger, if these MPs are forced to do such actions,” he said.

Since October, Kurti and his colleagues have nearly paralysed parliament with internationally-condemned tear gas protests, while riot police have fired the same gas at their sometimes violent supporters on the streets.

One of the main targets of the united opposition’s fury is a government deal with Serbia, brokered by the European Union, to create an association giving greater powers to Kosovo’s Serb minority.

Critics fear the plan will deepen Kosovo’s already entrenched ethnic divisions and increase the reach of former master Serbia, against whom Kosovo’s pro-independence ethnic Albanian rebels fought a war in the late 1990s.

But for many of the protesters, who are planning a pro-election rally for Kosovo’s day of independence on Wednesday, the deal is only a catalyst for action over a host of complaints against those in power.

Disillusioned

“We are totally disappointed,” said 32-year-old IT designer Petrit Ramadani, recalling the euphoria of eight years ago. “Kosovo is not what we dreamt it would be.” 

He and several other protesters accused the authorities of widespread corruption, lagging development and a disregard for Muslim-majority Kosovo’s 1.8 million people, 70 per cent of whom are younger than 35.

Many of them appear keen to move abroad, faced with an unemployment rate that the World Bank puts at around 40 per cent.

Kosovo is still unrecognised by several countries, including Serbia, Spain and Russia, while the cherished goal of joining the EU remains a distant prospect.

Despite slow progress, Foreign Minister Hashim Thaci — proclaimer of Kosovo’s independence in 2008 and two-time prime minister — says he remains “full of hope”.

“The country is changing, we are not perfect, I know that we must do more but it’s moving forward,” he told AFP in a city-centre government building, its exterior bearing traces of fire and other damage from a recent riot.

“There can be no reason to use violence. We are in Europe, this is not some Middle Eastern country,” Thaci said.

The powerful politician, who is front-runner to become president this year, pointed to progress made in talks with Serbia to “normalise” relations, which helped Kosovo to seal a pre-accession accord with the EU in October.

He stressed that deals reached with Belgrade were in “full cooperation” with the EU and the United States — a staunch ally of Kosovo since Nato’s bombing campaign against Serbia to end the 1990s conflict.

Once the political leader of the Kosovo Liberation Army, Thaci has been accused of heading a criminal network involved in smuggling human organs and assassinations during and after the war — allegations he strongly denies.

Today the 47-year-old surrounds himself with an energetic young team that promotes Kosovo through social media and other means as it strives for full recognition.

Bridging divisions

A slick foreign ministry flyer handed out at a recent conference in Pristina boasted of a “super dynamic country”, rich in coffee bars and film festivals, where a “harmonious” and “diverse fusion” of religions and languages exists.

The reality is more complicated, as is clear in Kosovo’s northern city of Mitrovica. Here a bridge guarded by a Nato-led force divides ethnic Albanian and Serb dominated areas with starkly contrasting loyalties.

The rundown Serb part of town is covered in Serbian national flags and pro-Serbia and Russia graffiti.

One such drawing bears the slogan “Kosovo in Serbia, Crimea in Russia”, referring to the Ukrainian territory seized by Moscow in 2014. A poster shows Russian President Vladimir Putin strolling away from a burning US White House.

Ksenija Bozovic, chairwoman of north Mitrovica’s municipal assembly, said Kosovo’s Serbs “looked to the government of Serbia” to solve their problems.

But while the controversial association agreed between Pristina and Belgrade is supposed to help this community, she said many were confused and concerned about how it would work on the ground.

“Pristina gives us one version of information and Belgrade says something different. I can tell you the position of Serb citizens — they are expecting a lot from that association,” Bozovic said.

Published in Dawn, February 16th, 2016