Why Pakistan should not renew mandate of military courts to try terrorism suspects

A tragedy in 2014 triggered a constitutional amendment empowering Pakistan’s military courts to try terrorism suspects for a two-year period, which was renewed in 2017 and will lapse soon. As Pakistan considers extending the term of the mandate for another two years, a recent high court decision, which provided a rare glimpse into the inner workings and invalidated decisions of military courts, has revealed that the military trials are a tragedy of their own. Parliament should therefore resist pressure to extend the mandate of the military courts – writes Dr Zubair.

Introduction

On 16 December 2014, a horrific terrorist attack on schoolchildren in Peshawar shook the national conscience of Pakistan to its core. It was seen as a moment of truth for the nation to finally and firmly decide how to wipe out the scourge of terrorism from the country. The political and security leadership apparently forged a consensus ‘to come down hard on the terrorists through a concerted national effort’. Terrorism, it was claimed, confronted the country with an ‘extraordinary situation’ which posed a ‘grave and unprecedented threat to the integrity of Pakistan and thus ‘special measures’ were required to deal with it.

The so-called national political consensus was translated into a 20-point National Action Plan (NAP) unanimously approved by Parliament on 24 December 2014. The plan required, among other measures, the formation of military trial courts to deal with terrorism related cases and lifting of the ban on death penalty in such cases.  As part of the plan, the Parliament and President hastily approved two extraordinary pieces of legislation on 6 and 7 January 2015, notably the Constitution (Twenty-First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015. On 9 January 2015, Pakistan lifted the moratorium on the death penalty. These extraordinary measures have had serious implications for human rights of accused persons facing military trials.

The term of the military tribunals was first extended in 2017 and, because of a two-year sunset clause, must now lapse or be renewed.

Within days, and while Parliament was on a three-week recess, the President of Pakistan adopted an ordinance amending the Pakistan Army Act on 24 February 2015. The ordinance retrospectively authorized detention of thousands of persons arrested even before the passing of the 21st Amendment. It also authorized military courts to hold in-camera proceedings and keep identities of individuals associated with the cases secret. Moreover, it gave protection and indemnity to court officers for any act done in ‘good faith’ in pursuance of the military trials. Contents of the presidential ordinance came to public knowledge only nine months later when it was placed before Parliament for approval, which was granted on 11 November 2015 through the Pakistan Army (Amendment) Act, 2015.

The constitutional amendment included a sunset clause of two years, with the possibility of extension. The first two-year term of the military courts ended on 7 January 2017. In March 2017, under the watchful eyes of the military leadership, and after three months of negotiations, the government and opposition parties agreed to a two-year extension. It was claimed that the ‘extraordinary situation and circumstances’ continued to exist and that the extraordinary measures ‘have yielded positive results in combating terrorism’. Thus, Parliament passed the Constitution (Twenty-Third Amendment) Act, 2017 and the Pakistan Army (Amendment) Act, 2017.

However, this time Parliament provided four basic rights to accused persons facing military trials: informing them of charges at the time of arrest, their production before courts within 24 hours, allowing them to engage private defense counsel and application of the regular law of evidence in the court proceedings. In addition to the legislation, Parliament also passed a resolution for the formation of the Parliamentary Committee on National Security (PNS), which, among other things, was to oversee the working of military courts.

The Supreme Court has rejected challenges to the mandate of military tribunals.

In the last four years, the military courts have convicted at least 641 people. Some 345 people have been sentenced to death, at least 56 of whom have been hanged, and 296 people given prison sentences. Only five accused people have been acquitted. Nevertheless, the Supreme Court has rejected challenges to the expanded role of military courts, as well as its extension in 2017, while clarifying that decisions of military courts remain subject to judicial review on certain grounds.

Another extension on the horizon?

With the first extension of military courts ending next month, the government of Prime Minister Imran Khan is planning to give yet another extension to military courts. Nevertheless, the ruling Pakistan Tehrik-e-Insaaf (PTI) and its coalition allies do not have the required number to pass the necessary legislation in the National Assembly and the Senate. Accordingly, the Prime Minister has formed a committee to consult with opposition parties and seek their support for the purpose. Despite initial opposition, the former ruling party (PML(N)), which passed the constitutional amendments and holds 25% of the seats in the National Assembly, as well as several independent members in the Senate, could support the extension.

The ruling party and its affiliates lack the numbers in the National Assembly and Senate to extend the term the military courts.  

The Pakistan Peoples Party (PPP), one of the two largest opposition parties, and national and international human rights organizations have strongly condemned the expected move. The Co-chairman of PPP, Bilawal Bhutto Zardari, has vowed to oppose it. Another senior leader of PPP, Farhatullah Babar, recently stated that the ‘extraordinary circumstances’ have ceased to exist and there was no justification for ‘extraordinary laws’ to continue. He warned that repeated exceptions to the general laws of the land create permanent vested interests which thrive on their continuation. He also pointed to the dangerous nexus between military courts and the issue of missing persons. Military courts, he claimed, provide cover to enforced disappearances by showing that persons missing for years were in fact facing the military trial court.

The Human Rights Commission of Pakistan (HRCP) has similarly expressed ‘grave concerns’ over the planned extension and called the idea of military courts undemocratic. It also warned that extending the life of military courts comes at the cost of reforming the criminal justice system in Pakistan. The International Commission of Jurists (ICJ) has similarly criticized the military trial of civilians as a ‘disaster for human rights’ in Pakistan. The ICJ expressed concern that further extension to military courts would make the practice effectively permanent.  

How military justice has worked so far       

The proceedings of military courts have been kept secret. Until recently, there was not sufficient information in the public domain about their procedures and workings. The only source of information has been media statements of the Inter Services Public Relations (ISPR) – the media wing of the military – announcing the award of capital punishments by military courts and containing vague references to the alleged involvement of the convicts in militancy without specifying the nature or extent of the convicts’ purported role in the acts of terrorism ascribed to them.

However, on 18 October 2018, the Peshawar High Court (PHC) in a single judgement overturned some 70 convictions (mostly death sentences) awarded by three military courts in the province of Khyber Pakhtunkhwa on 10 October 2018 for lack of credible evidence and that convictions suffered from ‘malice’ of law and facts. The decision of the PHC for the first time provides an authoritative insight into the working of military courts.

The PHC concluded that the military courts were operating with a ‘clear mindset’.

For example, the court observed that all convictions in those cases were based only on confessions, without independent and unimpeachable evidence to prove the guilt of the accused beyond reasonable doubt. Prosecution witnesses in all those cases were informants and none had directly witnessed the presence of any convict on the scene of occurrence. Confessional statements and statements of prosecution witnesses in all cases were similar in all details except changes of dates, places and names of individuals. All confessions in three different military courts were written in the same handwriting, language, text, tone and tenor. The court also observed that quite surprisingly in all cases the convicts refused to engage private defense counsels of their choice and instead agreed to be defended by a ‘private’ counsel selected by the prosecution at state expense. Only one defense counsel with five years’ experience from another province was engaged who could not speak the language of those he supposedly defended. The defense counsel declined in all cases to cross-examine prosecution witnesses testifying about the character of the accused. None of the accused deviated from the principal stand of the prosecution and none answered the prosecution questions differently. All convicts were kept outside the court while proceedings went on behind their back.

The court made a startling revelation that for relatives almost all convicts were ‘missing persons’ for a long time – ranging from six months to eight years! After years of detention, the convicts were suddenly produced before military courts where they ‘confessed’ to terrorism related crimes. Relatives of most the convicts were never informed at any stage that they were alive and facing trial proceedings before the military courts. In 45 cases, the relatives came to know about the convictions through newspaper reports.  

The dangers of the military administering justice should serve as a wakeup call to parliamentarians not to extend the mandate of military courts.

The court concluded that all three military courts ‘had a clear mindset’ that trials by these courts were ‘planned proceedings’ and ‘a complete prosecution show’; that the ‘private counsel was just a dummy’; that none of the accused was mentioned by name in any police report prior to their arrest; and that in all cases, ‘after each arrest, each and every accused was kept and framed in a particular case’. The decision of PHC demonstrates the dangers of the military administering justice and should serve as a wakeup call to parliamentarians not to extend the mandate of military courts.

Concluding remarks: Against extension

The ruling of PHC proves beyond any doubt that the idea of military justice is inherently in conflict with the idea of a democratic order based on the rule of law, and in violation of fundamental rights under the constitution of Pakistan and international human rights instruments. Pakistan must abide by its international obligations and put an end to military courts.

The Director General of ISPR has recently remarked that the previous civilian government decided on its own to empower military trial courts to decide terrorism related cases. The fact of the matter is that demand for military courts always came from the military. Given the military’s dominance over all civilian institutions, the 21st and 23rd constitutional amendments were forced down the throat of the government. Resistance to military pressure was not forthcoming because no civilian government can stand up to the powerful military. The recent refusal of PPP to grant the second extension of military courts is a welcome sign. However, the PPP had similarly initially refused to give the previous constitutional amendments extending  the military courts but changed its position later on. It is neither difficult nor uncommon for the military to make leaders of political parties forge a ‘national political consensus’, who otherwise remain at loggerheads with each other over every other issue of national importance.

The military is part of the problem and for that reason cannot be a part of the solution.

The elephant in the room, which hardly gets mentioned in the debate, is the fact that military is part of the problem and for that reason cannot be a part of the solution. The rise of extremism and terrorism in Pakistan is mainly due to the military’s control over foreign policy towards its neighbors, especially India and Afghanistan. The policy relies heavily on the use of what is commonly known as the ‘good militants’ that attack and destabilize the said countries, as opposed to the ‘bad militants’ that attack the army and mainland Pakistan. It is the ‘bad’ militants that have become the target of military operations and stand trials, if at all, before military courts. While approving the formation of military courts for the first time, many parliamentarians, without naming but in clear reference to the Pakistan army, urged the military to abandon the policy of making distinctions between good and bad militants if the country is to get rid of the scourge of terrorism. Unfortunately, nothing has changed in that regard.

One of the greatest problems the country has been facing is the issue of missing persons or enforced disappearances. The military intelligence agencies have been accused of disappearing many Pashtun residents from Khyber Pakhtunkhwa, PATA and the erstwhile FATA. This has given birth to the Pashtun Tahaffuz Movement (PTM), a new movement that is demanding the security of Pashtuns from the military. It has jolted the hitherto unchallenged military establishment and called for rolling back the latter’s destructive policies. The massive public demonstrations of PTM always reverberate with the slogans ye jo dehshat gardi hai, iske peeche wardi hai, which literally means ‘the army is behind terrorism’. Under pressure from PTM, the military has reportedly released almost a thousand missing persons from the internment centers maintained by the security agencies where they were kept and tortured for years. One of the main PTM demands has been for the military to produce the missing persons before the regular courts of law to stand trial.

If the military is accused of being ultimately responsible for promoting extremism and terrorism, it cannot and must not be allowed to become a judge in its own cause, selectively going after some and simultaneously supporting other militants or militant groups. The civilian political leadership has to gather courage, stand up to the army and assert its control over domestic and foreign policy. It must draw strength from and support popular movements such as PTM that stand for the supremacy of the constitution and the rule of law. It has to address the root cause of terrorism and at the same time bring reforms in the criminal justice system. As DAWN, a prominent newspaper, has rightly noted in its recent editorial, ‘The fight against militancy, terrorism and violent extremism will of necessity be long. But the country must not lose its constitutional, democratic and fundamental-rights moorings in the process’.

Dr Muhammad Zubair served as Assistant Professor of Law at the University of Peshawar, Pakistan. He recently completed his PhD in Law and Democracy at the Maurer School of Law, Center for Constitutional Democracy, Indiana University Bloomington.