NationalVolume 12 Issue # 15

Military courts under trial

The Pakistan Peoples Party (PPP) and bar associations have expressed reservations against the government’s attempt to revive military courts. The government wants to extend their operation for another two years, without fulfilling its promises made at the time of their establishment in January 2015. When the courts were set up to try terror suspects after terrorists had killed 144 people, mostly children, at an Army Public School (APS) in Peshawar in December 2014, critics called it “the last breath of the parliament and the funeral of democracy in Pakistan.” The government had promised to remove flaws in the judicial system, anti-terrorism courts, police and prosecutors in the interim period, but it failed. There would have been no need of military courts if the judicial system had been reformed to tackle extremism and terrorism which Pakistan has faced for decades.

An All Parties Conference (APC), called by the government, had given the green light to the courts in 2015, but now the PPP apprehends the courts would be used for political purposes. It has sought guarantees from the government that the military benches would not be used against other political parties. Some party leaders fear the military courts, set up under a new law, would be used for political victimisation after the government has removed the word “religion” from the operative part of the amendment calling for action against militant organisations. The military courts have become non-functional since January 7, 2017, after the expiry of their two-year constitutional term. Set up under the 21st Amendment, the courts tried 274 accused in two years. Some 161 accused were sentenced to death and 169 to life. Three military courts were set up in Khyber Pakhtunkhwa, three in the Punjab, two in Sindh and one in Balochistan.

It was the establishment’s pressure that forced the political parties to agree to a counterterrorism action plan under which the military courts were set up in the country. Critics said there was no legal justification for the courts in a civilian setup but it was the demand of the military which had spearheaded the fight against terror and needed special laws and courts to deal with terrorists. There was a major flaw in the system as it had no clear policy on what to do with militants who had been captured by the security forces and intelligence agencies. More than 6,000 alleged militants arrested in Swat, Waziristan and other tribal areas languished in army detention centres for years without being produced before any court of law. The missing persons’ case also highlighted lacunas in the law as the security agencies needed protection under the law for their action against foreign and home-grown militants operating on Pakistan’s soil. The agencies had been demanding special laws for many years but the PPP had refused. The military courts eased their working.
Military courts cannot be defended in a democracy but extraordinary circumstances demand special measures. It is generally believed that civilian courts and law enforcement agencies lack the capacity to effectively deal with terrorism. When the government devised a national security policy to counter terrorism in 2015, it focused eliminating all terrorist organizations and networks through a combination of measures, including counter-insurgency, intelligence-gathering, policing and prosecution. The policy was not shared with the media even after its approval by the cabinet, chaired by Prime Minister Nawaz Sharif, to create an impression the government was dead serious about executing its plan. Pakistan was supposed to follow China’s security model in Hong Kong and Dr. Mahatir Mohamad’s security policy in Malaysia to tackle terrorism and extremism. It also called for enhancing the capacity of civilian law enforcement agencies with an effective check on terror financing, protecting assets, buildings and other potential targets and improving the judicial system and anti-terror laws. However, the policy largely remained unimplemented. In the situation, the establishment feels the need for an extension in the tenure of military courts.

The Supreme Court has already dismissed petitions challenging the 21st Amendment, under which military courts were set up, in a majority 11-6 vote by a 17-member bench. Six judges declared the amendment as well as trials of accused by military courts as illegal and unconstitutional. However, terrorists convicted by military courts could still be reprieved after the Supreme Court ruling confirmed their right to judicial review. The right to review was granted as the court legalised secret military trials. The military courts were empowered to try militant suspects until February 2017, and the government had promised to use the time to reform the broken civilian justice system. However, it failed to improve police investigations and prosecution and eliminate corruption from lower courts. The government’s efforts to revive military courts have once again created concerns that an unaccountable system of military justice will compromise justice and fundamental rights. It will also undermine the independence of the judiciary, critics say.

The military courts may not offer a complete solution to the problem of militancy in Pakistan. It is only a cosmetic measure. They will only benefit and support the law enforcement agencies temporarily. For a permanent solution to the issue, Pakistan will have to improve its judicial system, especially the lower courts, the police and investigation. The government should also take measure to address causes of the militant mindset. In the absence of decent job opportunities, healthcare and education, people turn to extremist ideologies. The government should focus its attention on the provision of basic facilities to the public to end the supply line of terrorists.

By endorsing the demand for military courts, Pakistan’s political parties have given credence to the view that civilian institutions and governments are irredeemable and incapable of being reformed. The argument has always been presented by the military and military governments in the past but the civilian government has proved it.