Are military courts the answer?

The establishment of the military courts was part of the National Action Plan (NAP) unveiled on December 24, 2014 in the wake of the Army Public School, Peshawar tragedy. The APS incident shook society, which until then had been sharply divided over the issue of militancy – in terms of taking ownership of the war on terror as well as tackling the problem.

Even Operation Zarb-e-Azb, which started in June 2014 following the attack on the Jinnah International Airport in Karachi, could not bring the political leadership on to the same page. Right-wing parties like the PTI and the PML-N had been staunch supporters of thrashing the militancy out through talks with the terrorists.

The PML-N, the party at the helm in Islamabad, was on a sticky wicket and had no alternative to giving its nod to the army top brass’ decision to launch the operation. As for the PTI, nearly a week before the APS tragedy its chairman Imran Khan had declared that had he been the prime minister, he would not have sent the troops to North Waziristan.

NAP summed up the prevalent mood over the APS incident. That mood was far from being conciliatory towards the militants. The top military leadership which pushed NAP through insisted not only on setting up special military tribunals to try civilians charged with terrorism but also on lifting the moratorium on executions, which had been in force since 2008. The two proposals formed the first two of the 20 points of the NAP.

The expeditious trial of miscreants, leading to their conviction, has been a popular demand. The civil courts, for one reason or another – corruption, excessive workload, security of judges and witnesses etc – had failed to try and convict alleged terrorists expeditiously. As a result, the miscreants would in most cases get away scot-free and so were able to plan and execute more acts of terrorism.

In the wake of such a colossal, nerve-racking tragedy as the carnage of children at the hands of the militants, resisting that sort of demand became a difficult proposition for the political leadership. Since military courts, it was argued, would be free of such problems, a higher number of convictions was likely to come through in a much shorter period.

Following the 21st Amendment to the constitution as well as amendment to the Army Act 1952, eleven military courts were established in the four provinces. According to ISPR, until December 2015 – in less than a year since they started working – the military courts had decided 55 cases in which 32 ‘hardcore’ terrorists were convicted.

Be that as it may, there is the other side to the military courts – their establishment and working is in conflict with the fundamental rights guaranteed by the constitution. Reference may be made to Article 4 (right to be dealt with in accordance with the law) and Article 10-A (right to fair trial and due process of law). In addition, the military courts undermine the principle of separation of the judiciary from the executive, which is enshrined in Article 175 of the constitution.

Therefore, the 21st Amendment had to be enacted to give constitutional cover to the military courts by amending Article 175 and the First Schedule of the constitution. The First Schedule contains laws which are exempted from the operation of Article 8, which declares that any law inconsistent with fundamental rights shall be void. The 21st Amendment added the Pakistan Army Act 1952 and The Protection of Pakistan Act, 2014 to the First Schedule.

The critics of the military courts argue that instead of vesting the army with the power to try civilians, the government should have tried to overcome the deficiencies of the criminal justice system. Not only that, critics also argue that these special military courts would add to the power of the men in uniform, which in turn would undermine civilian institutions and democracy.

The 21st Amendment was challenged in the Supreme Court for being ultra vires to the constitution. In a majority judgement, the apex court upheld the amendment but at the same time it reserved the right to review the convictions handed down by the military courts.

The way the military courts work has also invited criticism. The cases for trial are sent to these courts by the Ministry of Interior on the recommendations of the provincial government. It is alleged that these courts operate in a secretive manner, that the accused are debarred from hiring a counsel of their choice, that the evidence on the basis of which they are convicted may not be conclusive, and that it is doubtful whether they try only hardcore terrorists.

Such allegations may be devoid of substance. But as long as the military courts work, the same will continue to be levelled.

The term of the special military courts will expire in January 2017. But the reforms in the criminal justice system have not started yet. Of course, the government may extend the term of the military courts for a couple of years. But in any event, these courts can’t work for an indefinite period.

So if the government really is committed to rooting out militancy, the long-run recipe is not military courts but reforms in the mainstream judicial system.

Email: hussainhzaidi@gmail.com