The quick fix

In a rare demonstration of unity last week, the parliament unanimously responded to the “extraordinary situation” confronting our embattled country by voting into law the Pakistan Army (Amendment) Bill, and granting it constitutional sanctity through a constitutional amendment. The measure, justified as the need of the hour, and equally critiqued as a swift surrender of democratic ideals, may not prove to be the ‘quick-fix’ hoped for.

A legal regime established under the Army Act to discipline and maintain order in the Armed Forces of Pakistan will now mete out ‘speedy’ justice to civilians who belong to a terrorist group or an organisation using the name of religion to wage war against the state, attack law enforcement agencies or civil or military installations, cause the death of any person, or create terror or insecurity etc. With court-martials presided over by military officers (not necessarily versed in the law or bogged down by procedural trivialities) conferred jurisdiction over such persons, it is expected that heinous criminals set loose by civilian courts on ostensibly legal pretexts will increasingly be sent to the gallows. Constitutional guarantees of life, equality and due process, rendered inapplicable to such trials following the 21^st Amendment, will no longer impede the quick dispensation of justice by military courts. The expected consequence: quick decisions; limited room for appeal; a higher rate of conviction; more executions; fewer terrorists; effective deterrence and counterterrorism. The equation appears to fit perfectly. Yet it is incomplete.

There is no denying that the criminal justice system has been unable to deliver and respond to the terrorist menace. Figures relied upon by the interior ministry to formulate the National Internal Security Policy provide that from 2008 till 2012, Anti-Terrorism Courts acquitted 14,115 persons and released 10,387 on bail. More recent figures from Sindh demonstrate a conviction rate of 32 per cent in Anti-Terrorism Act offences, and a backlog of 2,700 undecided cases from 2013 till 2014.

The political and military establishments have, for all apparent purposes, entirely attributed the poor rate of convictions to judicial failure. It is believed that judges lack the mettle or even the capacity to hand down guilty verdicts in terrorist cases. Burdened by a crumbling backlog, the judicial system cannot plausibly dispense justice at the requisite pace. The assignment of such responsibility to military courts, presumably untroubled by such infirmities, then only seems plausible.

Such conclusion overlooks the fundamental role played by other key components of the criminal justice system. Trial, before a judicial officer, represents only the pinnacle of criminal legal processing. Investigation and prosecution are, instead, the bedrock upon which the entire system stands, plugging in the essential information based on which judicial decisions are made.

Judicial failure is then a failure of investigation and prosecution. A cursory look at analyses of the low conviction rate in Pakistan would clarify its root causes: defective investigation and poor prosecution. The majority of acquittals result “due to a lack of evidence”, lost or destroyed by reason of police malpractice or left unretrieved on account of technological incapacity. The failure to provide adequate protection to witnesses means that many resile from their testimonies, with the prosecution consequently falling through.

The single-minded focus on the judiciary (which no doubt has its deficiencies) then obscures the critical contribution of the civilian-led prosecution service and police investigation processes to the targeted problem. According to a report published by Asia Society in 2012, the lack of trained police personnel, technological equipment and intelligence capability, weak curriculum, and poor coordination between civilian police and military forces are key to understanding the failure of Pakistan’s counterterrorism strategy.

The ‘extraordinary measure’ adopted by the executive, and fully endorsed by parliament and the military, appears to have been formulated in haste. By merely shifting responsibility of trial and sentencing in such cases from civilian courts to the military, the recent legislative measures may well yield a more laudable rate of conviction (however, with questionable and, probably long-lasting ramifications for democracy and the rule of law). The resort to military courts can at best be a stopgap arrangement. At the end of this promised two-year long military-judicial liaison, the civilian justice system is likely to remain as ill-equipped to effectively handle offences of terrorism. Will the suspension of constitutional principles continue endlessly? It would appear so, unless the criminal justice system is as a whole simultaneously reformed by improving capacity, infrastructure and accountability at all three stages.

Published in The Express Tribune, January 13^th, 2015.

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