The killing of at least 20 students and staff of Bacha Khan University in Charsadda, disturbingly reminiscent of the attack a year ago on the Army Public School in Peshawar, has once again brought into focus the efficacy and legitimacy of the country's National Action Plan. This includes at the forefront the controversial move to establish military courts to try civilians for terrorism-related offences.
Since the 21st Amendment passed in January 2015, Pakistan has established 11 military courts to hear terrorism-related cases. These courts have sentenced 36 people to death and given life sentences to four persons. Eight civilians convicted by military courts have been hanged after secret trials.
The operation of military courts has come at great cost to human rights and the judiciary’s independence, which has been argued in detail on these pages. The promised "quick results", however, are yet to be seen. This is not surprising, as the very rationale behind the establishment of military courts is flawed, if not deliberately deceptive.
The premise of the 21st Amendment was a hastily constructed narrative that "civilian courts have failed". This claim was supported by assertions that civilian anti-terrorism courts have high rates of acquittal and judges deliberately let "terrorists" off the hook, either because of fear or sympathy.
Notwithstanding the fact that equating justice with the rate of convictions is abhorrent to the rule of law (only in authoritarian regimes lacking an independent judiciary are there no acquittals), curiously, none of the advocates of military courts, whether in parliament or in the media, presented any evidence to demonstrate why the civilian judiciary is incapable of bringing perpetrators of terrorism to justice.
The real problems
While it is true that ATCs have a high acquittal rate ranging from 80% to 90%, the reasons for this are far more complex than the half-truths and hurried conclusions presented before parliament and on television screens.
Justice Faez Isa discussed in detail some of these reasons in his dissenting opinion in the Supreme Court judgement on the challenge to the 21st Amendment. He regretted that “important matters such as the proscribing of terrorists, lodging of cases against them, collection of evidence and conducting a thorough prosecution have been largely ignored, and it has somehow been concluded that the reason terrorism continues unabated is because trials are being conducted by the anti-terrorism courts….”
An assessment of some of the judgements where allegedly "known terrorists" were acquitted or set free by courts supports Justice Isa’s view. In July 2011, in a much-criticised decision, the Supreme Court granted post-arrest bail to Malik Ishaq, the leader of Lashkar-i-Jhangvi, after he had spent 13 years in jail. The express reason behind the grant of bail was not fear or sympathy, but lack of admissible evidence. The court stated “we cannot brutalise justice in the name of terrorism if no legally admissible evidence has been shown to us”. (Malik Ishaq was extra-judicially killed by police in July 2015.)
In another case, Sufi Mohammad, a cleric from Swat and chief of the banned Tehreek Nifaz-i-Shariat-i-Mohammadi, was acquitted of sedition and incitement to violence charges by an ATC in April 2015. The reasons given for acquittal included an unexplained delay of three months by the police in lodging an FIR after the alleged incident and the failure of the prosecution to produce any recordings or evidence of the allegedly seditious speech. (He is still facing trial for other charges.)
As these cases demonstrate, a major problem in convicting perpetrators of terrorism in Pakistan is the weakness of police investigations and prosecutorial efforts, which often do not provide the evidence necessary to meet legal thresholds for criminal conviction.
Empowering military courts to try terrorism cases does not acknowledge, let alone resolve, any of these problems. Instead, it is yet another example of the state’s resort to "exceptionalism" to justify a knee-jerk response to terrorism that Pakistan has been guilty of many times before.
Papering over cracks
The International Commission of Jurists’ 2009 global study on state responses to security threats examined in detail the dangers of the "exceptionalism doctrine", which justifies a departure from the normal legal processes and human rights protections on the basis of the "exceptional" character of the threat. In time, many of these measures became permanently incorporated into ordinary law, blinding governments to the actual reasons behind the lack of accountability for terrorism and serious crime.
The rationale for constituting military courts was stated to be an "extraordinary situation" that demanded "special measures for speedy trial". The same justification was given for the Protection of Pakistan Act, passed in July 2014 (just six months before the 21st Amendment), as well as the Anti-Terrorism Act, 1997.
The ATA, which promised "speedy justice" at the cost of some basic fair trial rights, progressively displaced the regular criminal justice system, with cases of ordinary murder, robbery, kidnapping and rape regularly being tried by special ATCs constituted under the act. Slowly, the "exception" became the norm, and the weaknesses in the operation of the regular criminal justice system remained unresolved.
The frustration with impunity for terrorism and serious crimes in Pakistan is legitimate, but there are no overnight solutions to a crisis caused by decades of neglect. Ensuring justice – as opposed to securing a large number of convictions without the fair and impartial adjudication of responsibility – will require major rethinking and reform of the criminal justice system. It will require learning from the successes and failures of other jurisdictions that face similar security threats; ensuring that minimum guarantees of the right to a fair trial are at all times protected; and drawing from the actual everyday experiences of judges, lawyers and investigators, not hasty, ill-conceived measures motivated by the desire for revenge at the cost of the fundamental principles of fairness.
The establishment of military courts does not provide any of these reforms. Their continuing operation does not help counter the very real terrorist threat facing Pakistan, but it will further erode the effectiveness of the country’s administration of justice and the rule of law.
This article first appeared on Dawn.