Pakistan’s military courts are a shortcut to fix larger ills plaguing its judiciary, and it’s not working

Pakistan's judiciary -- historically, arguably, the most vibrant section of its civil society -- has been crumbling under a weak state that cannot afford it protection.

Written by Nandini Rathi | New Delhi | Updated: May 19, 2017 11:13 am
 terrorism pakistan, pakistan army, military court trial, army public school peshawar Pakistan’s Parliament unanimously passed the 21st amendment of the Constitution on January 6, 2015,  which legalised special military court trials for civilian suspected of terrorism.

Pakistan is the only country in South Asia where military courts have the power to take civilians for closed-door trials, even though that goes against its constitution. In fact, even as the International Court of Justice is trying the case of Indian citizen Kulbhushan Jadhav, who has been sentenced to death by Pakistan court, a report by the United National Committee against Torture has slammed the country for using its military courts for terrorism-related prosecutions.

Jadhav too was convicted by a military court in a secret trial and awarded a death sentence. No evidence of wrongdoing was released or shared. The Indian Ministry of External Affairs found out about Jadhav being sentenced to death by Pakistan on April 10 through a press release on Pakistan military’s public relations website: Inter Services Public relations (ISPR). This bypass of basic law and justice procedure is characteristic of how military courts in Pakistan function.

kulbhushan jadhav, kulbhushan jadhav death sentence, kulbhushan jadhav, india, pakistan, spy, espionage, pakistan death sentence, international court of justice, hague, india news, indian express Kulbhushan Jadhav was convicted by a military court in a secret trial and awarded a death sentence. No evidence of wrongdoing was released or shared. (File Photo)

On January 6, 2015, Pakistan’s Parliament unanimously passed the 21st amendment of the Constitution which legalised special military court trials for “hardcore terrorists” (civilian suspected of terrorism) for a period of two years. The deliberation period about establishment of military courts roused wide concern and debate on grounds of possible rights violations and undermining of the civil judiciary, but it was finally presented as temporarily necessary for an anti-terrorist crackdown in the tragic wake of the deadly Taliban attack on an army public school in Peshawar which killed more than 150, mostly children in December 2014.

According to a March story in Pakistan newspaper Dawn, there are roughly 11 military courts in Pakistan: three in Punjab, three in Khyber Pakhtunkhwa, two in Sindh and one in Balochistan. But the Pakistan Army Act 1952 states that military trials could be held at “any place whatever”. Under the military court system, until quite recently, defendants were not even allowed to hire their own legal counsel  — a lawyer was assigned to them by the military. Media outlets or family members of the accused cannot observe and details of the trial are not made public until military announced a verdict. Further, there was no right to appeal in civil courts against the military court’s verdict.

Started by Zia

Military courts were first established in Pakistan soon after General Zia ul-Haq established martial law in Pakistan on October 17, 1979. The speedy justice dispensing courts were then used to clear old backlog and impose and enforce bans on pro-democracy political activities and to muzzle the media for reporting unfavorably on the Army regime. Much like their modern versions, the verdicts of these courts could not be challenged or upturned by any civil court. Pakistani journalist Abdus Sattar Ghazali, wrote in his book ‘Islamic Pakistan: Illusions & Reality’ that military courts in the Zia period “reversed the most fundamental principle of justice – in Pakistan you were guilty until proved innocent.”

Enfeebled civilian judiciary; enfeebled democracy

Far sighted commentators from within and outside see military courts, especially in its prolonged lease, as a deviation away from democracy and rule of law and once more towards authoritarianism. Instead of repairing its fractured democratic institutions and reforming the criminal justice system, the weak state has again looked upon and obliged the military to take matters out of law and into its own hands.

The dominance of military courts, which abridge the due process of law, clearly undermines Pakistan’s civil judiciary system, which elaborately comprises the Supreme Court, the Federal Court of Shariat and five High courts — one for each of the four provinces and Islamabad capital territory. The subordinate judiciary further consists of district and sessions courts, civil judge-cum-judicial magistrate courts, and a wide range of special tribunals such as anti-terrorism courts, labour courts, family courts, consumer courts etc.

Supreme Court of Pakistan — the apex institution. Image: Reuters

The main justification for authorising military courts is that Pakistani state deemed its civil courts, judges and lawyers presiding over terrorism cases as easy targets for intimidation and has failed to provide them with requisite security. Religious extremists often voice that Pakistan’s judiciary is at odds with “law of Allah” and they believe its undermining is necessary for the establishment of a Sharia state. Lawyers and judges have been fatally attacked in the recent years for trying and sentencing religious extremists and terrorists. Since 2004, 54 lawyers (not including judges and other officers of court) have been murdered in Pakistan and thrice as many injured in targeted attacks, according to the South Asia Terrorism Panel. In August 2016, a suicide bomber outside a crowded hospital in Quetta, Balochistan killed at least 74 people, most of them judges and lawyers. Many cases are also lost at the investigation and prosecution stages due to intimidation of other parties involved, such as the witnesses.

Due to such heavy handed intimidation and abdication of state from safeguarding responsibilities, the judiciary — historically, arguably the most vibrant section of Pakistan’s civil society — has been eroding. The anti-terrorism courts of Pakistan have been notorious in the recent years for failing to make any meaningful convictions; dangerous masterminds like Maulana Abdul Aziz, Malik Ishaq and the internationally wanted Hafiz Saeed have been prosecuted and acquitted time and again.

pakistan terrorism, military courts, pakistan judiciary Supporters of Hafiz Saeed, chief of the Islamic charity organization Jamaat-ud-Dawa (JuD), shower rose petals on the Armoured Personal Vehicle carrying him, after he appeared before a court to challenge his house arrest in Lahore, Pakistan, May 13, 2017. REUTERS/Mohsin Raza

Army: the investigator, prosecutor and judge

The modern military courts, upheld by the government as an “effective deterrent”, are known for their secrecy and opacity. The UN report came down heavily on this system for its lack of independence and transparency. The offences for which military courts can try civilians range from kidnapping for ransom, causing death or injury, attacking military officers to the more nebulous “waging war against the state”.

According to a report by the International Commission of Jurists, in the two-year period that ended January 6, 2017, military courts convicted 274 individuals and handed down 161 death sentences.

Not only are the military court judges well within the military hierarchy, but there is also no requirement for them to have a law degree or a legal background. Further, these ‘judges’ do not have any security of tenure, which is considered necessary for judicial independence. Besides no independent monitoring of the trial, not even a copy of charges, evidence or verdict rationale is provided to the defendant or the public, which leaves plenty of room for doubt as to whether fair justice is being served or vendettas are being pursued under cover. There are also various concerning reports about ill treatment and use of torture. According to the ISPR press release statement, 135 out of the 144 persons convicted in military courts by December 2016 had “confessed” to their crimes which is an eyebrow-raising high percentage (94) that raises doubts about the interrogation methods used.

The issue is definitely not delimited to human rights. Court system secrecy generates murkiness and cancels the larger function of judiciary, which is to inform the public about the wrong and the right. In this case, it is the unequivocal role of thriving, indigenous Islamic extremism in promoting terror. Justice has to be seen because clarity is crucial to get to the root of the insidious terror problem — which just cannot be solved by deterrence of trial and punishment alone. As attorney and author Rafia Zakaria writes in Al Jazeera: “A confused Pakistani public … desperately needs to see the evidence against terror suspects. It is only when the procedures for doing so are clear and transparent that the hearts and minds vulnerable to conspiracy theories that blame foreign hands will be forced to confront extremism as a homegrown issue.”

In the recent years, Pakistan has been jolted over and over by terror attacks taking a yearly toll of hundreds of lives. Unquestionably, Islamabad has a lot of monsters to slay at home, for its own sake. But the manner in which it is done will finally determine how thoroughly or how poorly the tumor of terrorism is checked. The prolonged short cut of a military justice system, which shuts the blinds and overwrites the rule of law, can only go so far.

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