Following the brutal massacre of innocent school children in Peshawar on December 16, 2014, Pakistan has adopted a series of measures, key amongst which has been the establishment of military courts to try civilians for terrorist crimes.
While the amendment of the Constitution and the Army Act has been controversial enough in Pakistan, it is the extension of these courts to Gilgit-Baltistan that has raised eyebrows.
It may be recalled that on November 25, 2014, an Anti-Terrorism Court in Gilgit had sentenced the owner of the Jang-GEO Group, Mir Shakeelur Rehman, and actor Veena Malik and her husband Malik Asad to 26-year imprisonment and fined them Rs. 1.3 million each for blasphemy.
The judgment had stunned the legal and political fraternity of Pakistan because, legally, the Gilgit-Baltistan courts had no jurisdiction outside that area and could not proceed against a citizen of Pakistan. More importantly, the Pakistan Government itself clarified that Gilgit-Baltistan was not a constitutional part of Pakistan.
This being so, it boggles the mind as to how military courts can be extended to Gilgit-Baltistan now.
The reason is that the Constitution of Pakistan has been amended to set up these courts. The Constitution is not applicable in Gilgit-Baltistan. So, how can military courts be set up in Gilgit-Baltistan?
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For a moment, let us leave the Constitutional question aside and look at what the military court system in Pakistan actually is.
In an article titled Pakistan: Military Courts- A Recipe For Deliverance From Terrorism Or An Escape Route For The Army?, which was published on January 5, 2015 in the Business Standard, I had written as follows :
Pakistan's Army Act of 1952 provides for a four-tier structure of military courts at field, district and general level, besides the simple summary trial level. At each level, the bench has been prescribed. For example, at the district level it consists of three commissioned officers with at least two years of experience.
The nature of the military courts is such that all the sentences are brief without any requirement of mentioning the findings and reasons for which the particular punishment is handed out. The punishment itself is meted out in military custody. All the sentences have to be confirmed by the army chief.
While such a system meets the need of the military, when applied on the civil side, even for terrorist cases, several flaws are apparent.
To name a few:
The officers on the bench are not lawyers or legal experts but soldiers. The presence of a Judge Advocate to assist in trial is not mandated except at the highest level.
There are no appeals in the civilian courts, even at the Supreme Court level.
Military men presiding over courts violates a fundamental principle of the constitution: the separation of powers between the executive and the judiciary.
It would violate the principle of the equal protection of law since some civilians will be subjected to military courts while others will enjoy the benefit of due process without any clear-cut yardstick.
In Pakistan, the reasoning has been that as the courts had let off too many terrorists, civilians suspected of terrorism would now be tried before military courts for an 'expeditious' decision.
Let us now turn our attention to Jammu and Kashmir. A moot point is the stunning silence that the likes of S A S Gilani and Mirwaiz have adopted towards the extension of military courts in Gilgit-Baltistan. Recently, perhaps for the first time, Mirwaiz had talked about Gilgit Baltistan. So, how come he is quiet about this blatantly unconstitutional act of extending military courts to that part of J and K?
Let us also ask what would be the reaction if India were to constitute similar courts in J and K. J and K has been plagued with terrorism for decades, masked in the garb of 'freedom fighters'. Their sympathizers go about their business openly. The separatists spew venom and hatred against the Indian state day in and day out.
Forget the seditious pronouncements of S A S Gilani, Yasin Malik etc. The President of the Kashmir High Court Bar Council Mian Abdul Qayyum said in court that taking part in the recent J and K Assembly elections was unauthorized and proceeded not to allot chambers to lawyers who had so participated.
People like these would be prime candidates to be tried under military courts, were they to be established in Jammu and Kashmir. The sentencing would no doubt be swift.
The moot point is that India, being a practicing democracy, just would not institute a system of military courts bypassing the normal judicial system. Nor would the people of India accept such a system, attractive though it does seem to try people who make seditious utterances against India.
People like Gilani know this and count their blessings that they are living in a democracy like India and not in a jungle raj, like Pakistan. That's why they have no fear of military courts trying civilians here.
But they could at least have had the moral courage to oppose such courts being set up to try their brethren in Gilgit-Baltistan.
Kyun Gilani Sahib? Himmat hai?
Salim Haq is an independent international affairs and security observer specializing in South Asia.