As part of the general militarisation of the terror policy of the Pakistani State, the military courts have emerged as the new legal panacea for dealing with terrorist violence.

But why has the government taken the risk to form military courts which are politically dangerous as they increase the role of the military, constitutionally questionable since they confer judicial power on the military over civilians, and do not satisfy the requirements of justice and due process to accused persons especially in death penalty cases. Moreover, researches (Laura Donohue, ‘The Costs of Counter-Terrorism’ or Jess Bravin ‘Terror Courts’) clearly show that a militarised terror policy at home, including use of military tribunals, has had a negligible effect, if not a counter-negative effect against terrorist violence.

Why are military courts considered legitimate and effective in tackling terrorist violence in Pakistan, despite their proven failure or negligible utility in other countries? Is this an innocuous intellectual problem or are there structural reasons and vested interests which have led to the formation of the military courts?

Weak and authoritarian state

The Pakistani state is paradoxical in its very nature -- it is becoming weak as well as increasingly authoritarian. It is weak because the essential characteristics of a state are withering away i.e. monopoly over means of violence, infrastructural power to implement its orders and the legitimacy of state action.

Paradoxically, Pakistan has all the trappings of an authoritarian state. The central focus of the state is on issues of security, internal and external. Pakistan is not a welfare state not does it pretend to be one. Therefore, order is valued over justice and security over freedom.

The logical consequence of this authoritarian state is a militarised terror policy -- de facto system of encounter killings (over 900 people killed in the ‘Karachi operations’), use of military means to deal with terrorism (use of tanks and airforce), enforced disappearances (over 800), torture as an acceptable investigation tool, detentions without trials (between 800 to 1600 in internment centres) and incarcerations without convictions (nearly 70 per cent of the prison population is under-trial and not convicts).

In the absence of the capacity of a failing Pakistani state to deal with internal security problems including terrorism through economic, social, political and administrative means and in the presence of a complete breakdown of order and un-controllable brutal violence, an authoritarian but weak state like Pakistan was bound to rely on more repression and more repressive laws (recent changes in the Anti-Terrorism Act, 1997, and Protection of Pakistan Act, 2014) to deal with the problem of order and anarchy.

Therefore, if the potential birth of a militarised terror policy lay within an authoritarian but weak state then the potential birth of military courts lay within a militarised terror policy. This potentiality was converted into actuality by the institutional interests of the military and political elites in power.

Military elite

Why are such a large number of ‘terror suspects’ held in internments camps and why is there a policy of enforced disappearances? Or in other words, why are these people not tried before a civilian court?

The answer lies in the policy where a ‘terror suspect’ is defined on the basis of intelligence ‘believed’ by the intelligence agencies and evidence collected through torture or illegal means, which leads to a presumptive confirmation of guilt against these persons. Such evidence and presumptive confirmation of guilt, even if true, will never be hold up in a civilian criminal justice system. Therefore, there is an inherent contradiction between presumptions and evidence regarding ‘terror suspects’ resulting from a militarised terror policy and the legal requirements of a civilian criminal justice system.

More and more repressive laws and, ultimately, military courts is an attempt to harmonise a militarised terror executive policy with a militarised judicial strategy. The aim is to make the evidence admissible and the presumptive confirmation of guilt regarding ‘terror suspects’ a part of the terror legal philosophy.

In other words, repressive laws like the military courts are a logical outcome of a military- and intelligence-dominated terror policy.

But the military courts also further other institutional interests of the military elite. First, how to remain dominant in politics without a formal coup is the key politico-strategic question for the military? A government made dependent on the military for internal security is a government which has accepted the indispensable de facto role of the military; the military courts simply convert this un-easy de facto role into a formal constitutional role.

Second, the military courts are an attempt to close the uncomfortable post-2007 chapter of judicial accountability of military actions of political involvement e.g. Musharraf coup of 2007, and various human rights violations e.g. missing persons.

The doors of military accountability are being shut by a combined narrative of the failure of the civilian judicial institutions and the indispensability of military justice. The military courts are the trump cards in this regard.

Political elite

"Nawaz Sharif was a great supporter of the military courts", wrote Chief Justice (Retd.) Ajmal Mian in his memoir A Judge Speaks Out. Needless we forget that it was Nawaz Sharif who introduced the military courts in Sindh in 1998 and has had a lifelong love affair with special courts of various kinds. In 1991, he introduced Article 212-B in the Constitution introducing constitutionally-mandated special courts for heinous crimes and his conflict with the then Chief Justice Sajjad Ali Shah in 1997 actually started with trying to introduce a much more repressive version of the Anti-Terrorist laws.

Therefore, without the active complicity of the Nawaz Sharif government the military courts would never have become a reality. The government of Nawaz Sharif used the issue of the military courts to further its political interest in two critical ways. First, like any rightwing government believing in a minimalist state, all Nawaz Sharif government could offer as social policy to the people of Pakistan is order and security. The catalyst for achieving this order and security are repressive measures i.e. stopping terrorism through a terrorising Hobbesian state armed with draconian laws.

Nawaz Sharif understands the Pakistanis’ social psychology of preferring order and security over freedom and justice and the public desire for immediate action and attraction to quick convictions and executions in the face of emerging anarchy.

Second, the military courts have helped Nawaz Sharif -- to emerge as a statesman, keeping the PPP in check, neutralising the PTI dharna and re-building his relationship with the military.

Therefore, for the Nawaz Sharif government, the failure or success of the military courts is irrelevant as this is merely a policy to further politics by other means.

What does the unanimous constitutional amendment to form military courts tell us? Given the nature of this authoritarian state, the new politics of the military elite and the old politics of the political elite, military courts are not an aberration but simply another example of the emergence of a militarised legal jurisprudence as a counterpart to the well-entrenched militarised terror policy.