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IN 2015, when parliament passed the 21st Amendment that allowed constitutionally protected military courts to try terrorism suspects, many reluctant lawmakers offered their mea culpas. Indeed, how can one forget the spectacle of a weeping Senator Raza Rabbani after he cast his vote? He said he had voted against his conscience. Ironically, two years later, the lawmakers are once again deliberating the revival of these military courts.
It is yet another testimony of the lack of faith in the country’s criminal justice system and the sheer ineptness of our rulers to reform it. Two years was a long enough period for restructuring the anti-terrorism courts so that they could adequately deal with terrorism cases and deliver quick justice as envisioned in the National Action Plan. Instead, our civilian rulers have once again chosen to outsource the responsibility to the military.
But can military justice salvage the situation? It certainly cannot. The extension in the term of the military courts is likely to further delay the much-needed criminal justice system reforms, particularly the plan to upgrade the anti-terrorism courts. In fact, the very term ‘military court’ is a misnomer; it is basically military field court martial whose jurisdiction has been extended to civilians. The opaqueness of the process has already raised questions about the fairness of the trials.
While the 21st Amendment provided constitutional cover to speedy trials under the Pakistan Army Act, it also carried a sunset clause of two years. What brought the political parties to a consensus on the controversial legislation despite some serious reservations was the Peshawar school massacre that necessitated tougher action against the terrorists.
It was supposed to be a stopgap arrangement, as the existing anti-terrorism courts were not fully geared to deal with cases involving militant combatants captured during military operations in the tribal areas or those participating in terrorist activities on the mainland. Their number was said to be in the thousands and many of them had been in the custody of the security forces for years without being produced before any court of law.
A flawed system of investigation and lack of evidence that is difficult to obtain in cases of terrorism allowed many hardened terrorists to get away without conviction. The threat to the security of the judges and investigators and their families was also the reason for the extremely low conviction rate in militancy-related cases. All these factors helped win the case for the establishment of military courts.
Can military courts salvage the situation? They certainly cannot.
There is no doubt that the state is obliged to take the toughest measures to protect the people from terrorist attacks that have claimed thousands of innocent lives. But military courts are the least adequate response to the threat. There is some weight in the argument that not only do summary trial courts not fulfil even the basic requirements of fair justice, they are not even a proper remedy for the victims of terrorism.
A major criticism of the military justice system is that the entire process lacks openness. The convicts are denied a right to fair trial. Although the Supreme Court has upheld the legality of trial of civilians before military courts, many legal experts are of the view that the ruling flouts the long-established principles of international law and the court’s own jurisprudence.
Not surprisingly, many of the court verdicts were challenged in the superior courts. A common complaint has been the denial of the right to a counsel of choice and the failure to disclose the charges against the accused and to explain the reasons for the verdict.
Since early 2015, the 11 military courts created across the country have convicted only 274 terrorist suspects. Out of them 161 were sentenced to death, 12 of whom have been executed and 113 have been given jail terms (mostly life sentences). One is not sure whether those convictions were an effective deterrent against violent extremism.
While some may still argue that the military tribunals were useful for a limited period of time it has become an excuse for not undertaking reforms. Now the government is seeking a two-year extension for military courts saying it requires more time to overhaul the criminal justice system. But a major question is whether the government is serious about its intentions. There is much doubt, given that the last two years have been wasted.
For sure, the government does not have the numbers to pass another constitutional amendment for the extension of the term for military courts. To get a two-thirds majority in both the houses of parliament, it requires the support of other political parties who are divided on the issue. Indeed the support of the PPP that enjoys a majority in the Senate is most critical.
It is apparent that the PPP in principle is not opposed to the extension, but it has stated its own terms for the support. Asif Ali Zardari, who has reappeared on the political scene after a long absence, has presented nine recommendations including the reduction of the sunset clause to one year.
Many see these as a political bargaining ploy as most of the points do not make legal sense. The suggestion to have a sessions judge along with a military officer sit on the bench cannot be taken seriously. It is clear that these proposals are meant to appease the liberal voices in the party opposed to the extension of the Military Act to civilians. The creation of a hybrid civil-military court would not be workable and would instead create more confusion.
Instead of seeking to civilianise the military justice system, the PPP leadership must stress on linking a one-year extension, if it deems it absolutely unavoidable, to a mandatory time line for upgrading the anti-terrorism courts and taking substantive steps to reform the overall criminal justice system. It is certainly not a big deal if efforts are sincere. The onus is not only on the government but also on the apex court to make sure it happens.
The writer is an author and journalist.
Twitter: @hidhussain
Published in Dawn, March 8th, 2017
