A key measure announced by Prime Minister Nawaz Sharif in his midnight address on December 24, 2014 to tackle the immediate challenges posed by terrorism in the aftermath of the December 16, 2014 Peshawar school massacre was the establishment of military courts to try terror suspects and lifting the moratorium on death penalty for terrorism cases.
This has been followed up by an all-parties meeting attended by the army chief in which consensus was reached to amend the Constitution. The Constitution and the Army Act will, accordingly, be amended shortly to enable the setting up of special military courts to try terrorism-related cases.
The reasoning has been that as the courts had let off too many terrorists, civilians suspected of terrorism would now be tried before military courts.
The Supreme Court of Pakistan had declared the setting up of military courts as unconstitutional and illegal in 1999 on the grounds that the Constitution did not allow a parallel judicial system.
To circumvent this, the political leadership has decided to amend those provisions of the Constitution that provide protection to basic human rights to provide constitutional cover to the proposed special courts.
What is the military court system in Pakistan?
The Pakistan's Army Act of 1952 provides for a four-tier structure of military courts at field, district and general level, besides the simple summary trial level. At each level, the bench has been prescribed. For example, at the district level it consists of three commissioned officers with at least two years of experience.
The nature of the military courts is such that all the sentences are brief without any requirement of mentioning the findings and reasons for which the particular punishment is handed out. The punishment itself is meted out in military custody. All sentences have to be confirmed by the army chief.
While such a system meets the need of the military, when applied on the civil side, even for terrorist cases, several flaws are apparent.
To name a few:
The officers on the bench are not lawyers or legal experts but soldiers. The presence of a judge advocate to assist in trial is not mandated except at the highest level.
There are no appeals in the civilian courts, even at the Supreme Court level.
Military men presiding over courts violate a fundamental principle of the constitution: the separation of powers between the executive and the judiciary.
It would violate the principle of the equal protection of law since some civilians will be subjected to military courts while others will enjoy the benefit of due process without any clear-cut yardstick.
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Analysts have argued that the government is taking the easy way out rather than focusing on the more substantial issues.
These would include a comprehensive definition of terrorism in the first place. Instead of an omnibus "creation of sense of fear or insecurity in society" which all crimes do, there must be a yardstick to distinguish between terrorism cases from the common criminal cases. A reference to the politico-religious motivates might by one such yardstick.
So, vaguely is terrorism defined that at present even leaders like Imran Khan and Maulana Fazlur Rehman are charged under the Anti Terrorism Act.
However, the biggest problem with the decision is that it accepts the Army's narrative about terrorism in Pakistan and absolves it from any responsibility in the matter.
The blame for terrorism is conveniently laid at the door of civilian institutions - that the courts are too weak and the process too long to convict terrorists. The corollary is to have military courts where justice is swift.
This ignores the fundamental fact that all terror groups in Pakistan whether used against Afghanistan or India or sectarian are the products of the Army, as adjuncts of its own foreign policies.
Not surprisingly, the civilian judicial system as well as the civilian law and order machinery have been intimidated, abused and distorted to shelter these terrorists. How else can one explain that the likes of Malik Ishaq and Lakhvi can potentially walk free?
However, opposition to military courts is building up. The PPP, PTI, MQM etc have cautioned against military courts. PPP leader Mian Raza Rabbani said in the Senate that the Constitution does not mention military courts and any amendment to create a room for them would strike at its basic structure.
Civil society activists like former President Supreme Court Bar Association Asma Jahangir has termed it a soft coup against elected representatives accusing the leaders of conceding that civilians are not capable of delivering justice, whereas military courts are best equipped to do so.
The Human Rights Commission of Pakistan (HRCP) said the decision undermines the judiciary and shows lack of confidence in an independent and strong judicial system while the superior judiciary has, several times in the past, ruled that military courts are unconstitutional. The commission says it also fears that political dissidents, particularly in Balochistan and Sindh, may become target of military courts.
The bottom line is that the move to set up military courts weakens the civilian set-up and cedes further control to the military. It does not address the core issue that terrorism today is home -grown in the nurseries created, run and secured by the Pakistan Army.
Peshawar was one opportunity that the civilian government could have seized to catch the bull by the horns. However, Nawaz Sharif either has no options or just does not care any longer so long as his position is secure.
The views expressed in the above article are that of Mr. Salim Haq, who is an independent international affairs and security observer specializing in South Asia. He tweets at @salimhaq6.
