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January 12, 2017



Do we really need military courts?

Two different positions have now emerged about the military courts. While the government's belated efforts to reach a consensus on the extension for military courts have failed in first attempt due to the opposition from PPP, JI, JUI-F and PTI, the army lauded their performance in combating terrorism. Dialogue perhaps is needed not only between the civil and military leadership but also government and opposition for a solution.



The opposition parties are right when they sought explanation from the government about judicial reforms in the last two years, which were promised when the Parliament approved these courts.

On the other hand, the army top brass, after a Corps Commander Conference, lauded the efforts of military courts, indicating their importance and presence till the completion of the ongoing operation.

One fails to understand why the government started its effort for extension after the expiry of its term on Dec 31, which has not only created confusion but also vacuum as neither these courts are functioning nor those cases pending have yet been transferred back to anti-terrorism courts. It has also raised a question whether the PML-N government itself is serious in extension, the way the issue was not even come under discussion before the expiry of term.

Setting up military courts or the deployment of law enforcement agencies other than police have always been made in an extraordinary situation and for a limited period. Sources say the establishment believes these alleged terrorists should be tried in military courts for speedy trial as civilian courts and police still lack the capacity because of threats to judges, lawyers and witnesses.

But it is also true that the establishing military courts under a civilian government is in itself quite embarrassing and reflects the failure of the system as successive governments have not been able to make civilian institutions strong to deal with themilitant groups, bring major judicial reformers and make anti-terrorism courts more effective.

The opposition parties also have a point when they said that the government had two years to bring drastic reforms in improving police, prosecution, protection of witnesses and extensive judicial reforms, but even some major steps have not been taken.

Now if the army has emphasised the need and importance of the military courts till the completion of Zarb-e-Azb, they also need to convince the civilian leadership how these courts in the last two years had helped combating terrorism.

Therefore, a dialogue is needed between the civilian and military leadership, both on military courts as well as National Action Plan which again had not been enforced. Therefore, the Parliament needs a meaningful debate on this issue in which Prime Minister Nawaz Sharif and all oppositions leaders, including Imran Khan, must participate.

A joint session of Parliament can also seek in-camera briefing from the military leadership on the rationale behind continuing with these courts. When two years back, the Parliament gave the approval to military courts in an extraordinary situation after the APS children massacre, it had also given the task to the government for bringing major reforms.

While there has been marked improvement in law and order and major decline in suicide attacks, but the very presence of FC in Balochistan and Rangers in Karachi shows that these operations are far from over. Secondly, it also illustrates that we are still not confident enough to hold the trial of alleged terrorists of outlawed groups in civilian courts.

If all this is true then it also raises some questions about the amount of success in Operation Zarb-e-Azb. If the militants are still strong enough to hit back at police, other law enforcement agencies and those linked with their cases so frequently, what has been the success rate?

Secondly, one of the arguments in favour of military courts has been to create fear among the terrorists, criminals and to dispose of their cases in weeks and months without long adjournments. It is partially true and to give some civilian colour in it, the Parliament gave the right of appeal to the convicts. It is also true that the civilian courts, including superior courts, not only take years in giving judgments, at times five to ten years, something which suits the militants as our jails itself are considered safe haven for militants.

In 1997, when the Anti-Terrorism Act was introduced, the purpose was the same – speedy trial in seven days and appeals in the superior courts were suppose to be disposed of within 30 days followed by the last appeal in the Supreme Court.

There was nothing wrong in the law and could have been the best alternate to any military court but due to the opposition from lawyers and bar association, it become so ineffective that now appeals against anti-terrorism courts’ decision take unlimited period. Some cases are pending for the last 10 to 12 years.

So the government and opposition as well as the military establishment could reach a consensus on ATC and the Act could be amended to make it more effective.

Interestingly, those against the military courts belong to both religious and liberal and secular parties, but for different reasons. Those who support military courts believe that under no circumstance our judicial system is either capable of or has the capacity to convict the kind of terrorists they are confronted with.

Knowing that the military courts would expire on Dec 31, 2016, it was surprising that the government started consultation only after ISPR's statement that the courts had stopped functioning on expiry of their term.

Thus, the government faced stiff resistance from the opposition as it is also an election year and in the post-Panama affairs, it may not be easy for it get a constitutional amendment passed with two-thirds majority.

It was also surprising that the government has brought the NAB Ordinance too in haste without consulting the opposition and thus they have taken the government to the task. The ISPR had already issued details about the performance of military courts in the last two years, including the execution of 12 terrorists, while some other cases are now under appeal before the superior courts.

When the Parliament approved establishment of military courts for two years, it laid down certain conditions as well as some parties feared that blanket approval could be misused. These were related to sectarian killings or to outlawed groups involved in terrorist acts.

It is for the second time that military courts had been set up under the civilian government. In 1998, despite the ATC, the then PML-N government imposed governor's rule in Sindh and set up military courts which were later declared void by the Supreme Court.  

Terrorism is one of the biggest challenges Pakistan is confronted with and a rational debate is needed on this important issue. It is unfortunate that our democratic governments had not been able to make strong judicial or police reforms. Effective civilian courts and speedy trial is still a better alternate to military courts. The question is: can they do it?