Military courts

When the Pakistan Army (Amendment) Act, 2015 was passed into law as the 21st Amendment to the constitution, it was presented as an emergency measure needed to deal with the militant threat. This is why it came with a sunset clause of two years, meaning the law is scheduled to expire on  January 7. So far, the government has apparently shown no interest in renewing the law. Not to do so would be the right decision since the 21st Amendment, along with the related Protection of Pakistan Act, gave legal cover to actions like detention without charge that have the potential to be misused. In the coming days, the government will mull over possible replacements to the law, with the fate of military courts coming in for particular scrutiny. Speculation by well-informed sources has centred on reports that the government may not renew the military courts and instead replace them with special speedy trial courts. As yet the government has not announced a future course of action. According to reports, the Sindh government has decided against referring nine terrorism cases to the military courts since it is unsure if those courts will even exist a few days from now. If the government does end up replacing military courts with speedy trial courts that     would be both a step forwards and a step backwards. Military courts have lower standards of evidence than regular courts, hold their trials in camera and thus cannot be assessed for fairness, and also take power away from civilian judges. If they are allowed to lapse that would indeed be welcome.

Still, speedy trial courts are likely not the replacement we need. Although there are no details yet on the remit of these courts, they will only add to the already convoluted judicial system. It is also unclear why speedy trial courts are needed when the existing Anti-Terrorism Courts already play that role. Military courts only heard cases related to militancy and these new courts will probably receive the same remit. But that only raises the question of why the Anti-Terrorism laws have been expanded so much that regular crimes now also full under their purview. The ideal direction for the government to take is to only let the Anti-Terrorism courts hear cases related to actual terrorism and militancy while leaving it to the regular courts to hear all other cases. This would have the virtue of simplifying jurisdiction and lines of authority while adhering to democratic norms. Back when the military courts were set up after the APS attack in Peshawar, there was a palpable panic about militancy. The achievements of Operation Zarb-e-Azb and the related drop in militant violence should allow us to more dispassionately consider the wisdom of setting up courts that may be speedier but tend to operate in the dark and make more mistakes.