Are military courts the best way to fight terror?

Instead of undermining judiciary through quick fix of military trials, govt should boost capacity of police, judiciary

Pakistan’s Prime Minister, Nawaz Sharif, claims to have a silver bullet to rid the country of terrorism: military courts. On January 7, a constitutional amendment permitting military courts to prosecute terrorism suspects was signed into law. The amendment justifies the use of military courts as a means “to permanently wipe out and eradicate terrorists from Pakistan”. Nawaz Sharif’s hyperbole has been no less extravagant, describing military courts as the antidote to “overcome 60 years of unrest”. Although the constitutional amendment stipulates a two-year time limit on their use, it poses a long-term threat to legal due process and rule of law.

Military courts are just one part of a wider National Action Plan against terrorism that the government has rolled out in response to the December 16 attack by the Tehreek-e-Taliban Pakistan on the Army Public School in Peshawar. Other measures include prohibitions on funding of alleged terrorist organisations and legal penalties for hate speech. The military courts, which will begin operations on January 21, will likely be kept busy. The government says it will use them to prosecute as many as 3,400 “jet black” terror suspects; it is yet to give a precise definition for ‘jet black’. Many of these suspects could join the approximately 500 death row prisoners that the government has announced it will execute in the coming weeks since Nawaz Sharif rescinded a four-year moratorium on capital punishment.

The authorities have sought to justify military courts as necessary for the “speedy trial” of terrorist suspects and to circumvent perceived “loopholes” of the civilian justice system. Such criticism is not without basis. Pakistan’s civilian courts have a well-earned reputation for prosecutions undermined by both corruption and a glacially paced judicial process. The Nation lamented in October 2013 that “bribery and blackmail are normal routine matters for lawyers as well as clients, and very little is done to counter such decay”. Nawaz Sharif has pledged that military courts will ensure quick results: on January 8, he told reporters that terrorism suspects convicted by military courts will be hanged within “10-15 days” of sentencing.

But the prime minister’s pursuit of high-speed ‘justice’ for alleged terrorists comes at an unacceptable price. The Human Rights Commission of Pakistan (HRCP) has cautioned that military courts will have a long-term corrosive impact on Pakistan’s struggle to create an “independent and strong judicial system”. The HRCP said that the government’s approval of military courts “undermines” the civilian judiciary and will embody the same pathologies that hobble civilian courts. Former Supreme Court chief justice Iftikhar Mohammad Chaudhry has also criticised the prospect of military courts for civilians as the basic structure of the constitution guarantees that “military courts cannot be established in the presence of an independent judiciary”.

This move will also run counter to some of Pakistan’s international human rights obligations. As a party to the International Covenant on Civil and Political Rights, Pakistan is obligated to uphold and take measures to ensure basic fair trial rights. Governments may not use military courts to try civilians when the regular courts are functioning. The United Nations Human Rights Committee has stated that “the trial of civilians in military or special courts may raise serious problems as far as the equitable, impartial and independent administration of justice is concerned”.

Nawaz Sharif’s enthusiasm for military courts to prosecute civilians also flies in the face of successful legal challenges to past efforts by the government to carry out such trials. The prime minister himself should know this. The Supreme Court in February 1999 declared unconstitutional the military courts Nawaz Sharif created during his 1997-99 government to address a surge of ethnic, sectarian and political conflicts in Karachi. The Supreme Court based its ruling on its assessment that military courts for civilians violate the guaranteed rights to a fair trial and that they are “[a] parallel system for all intents and purposes which is wholly contrary to the known existing judicial system having been set up under the Constitution”.

Nawaz Sharif has scoffed at concerns about military courts. On January 8, he said during a visit to Bahrain that “I don’t think people who slaughter others deserve any sympathy”. But ensuring that everyone’s rights are protected is not about sympathy, but about the rule of law. The HRCP has expressed concerns that military courts could enable the government to pursue political witch hunts.

Pakistanis have a right to be sceptical of the willingness and capacity of the authorities to pursue insurgents linked to atrocities such as the Peshawar school attack. After all, the government has for years failed to apprehend or prosecute members of the Laskhar-e-Jhangvi, which has claimed responsibility for attacks on Hazaras. Those attacks have killed more than 500 Hazaras since 2008 in Balochistan alone. While authorities claim to have arrested dozens of suspects linked to such attacks, only a handful have been charged with any crimes. The authorities in Balochistan have done little to investigate attacks on Hazaras or take steps to prevent the next such attack.

Instead of undermining the judiciary through the illusory quick fix of military trials for terrorism suspects, the government should instead seek to boost the capacity of both the police and the judiciary against such threats. It needs to realise now that any misuse of military courts can lead to human rights violations. What we need is a rights-respecting response to militant atrocities. A commitment to uphold the rule of law and to strengthen the civilian judiciary would be a far more powerful weapon against militant atrocities.

Published in The Express Tribune, January 17^th,  2015.

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