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No more military courts

Published Feb 21, 2017 03:03am

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ACCORDING to official sources, the government has decided to table a bill to extend the ‘exceptional’ use of military courts for another three years. Reportedly, the draft amendment would give military courts jurisdiction over any offence considered to be an act of terrorism, a broader mandate than the 21st Amendment, which was applicable only to “terrorism motivated by religion or sectarianism” and where the accused were “members of proscribed organisations”.

At the expiration of the 21st Amendment in January 2017, ISPR, the military’s media wing, made two assertions supporting their ‘success’: first, “cases were dealt through due process of law in the military courts”; and second, that military trials have had “positive effects towards reduction in terrorist activities”. Both these claims are debatable, making the case for the extension of military courts misleading and in violation of Pakistan’s international law obligations.

Human rights groups and legal experts have documented in detail how military trials of civilian terrorism suspects pursuant to the 21st Amendment have fallen far short of fair trials standards.

Particularly worrying is the opacity with which these courts have operated. Proceedings of military courts, their judgements, reasoning and evidence, and details about the alleged offences for which suspects were tried have been kept secret. The trials were closed to the public and families of the accused — even the National Commission for Human Rights, a statutory body with a mandate to ensure the promotion and protection of human rights, was not given access to observe the trials.

Also of concern is the high rate of ‘confessions’. At least 159 out of 168 people whose convictions were publicly acknowledged by the military allegedly ‘admitted’ to the charges, raising serious questions about coercive measures being used to get these ‘confessions’.

Furthermore, suspects have been defended by military officers who are not civilian lawyers. The military says the accused willingly decided to forego their right to engage civilian lawyers — a claim that is impossible to verify because of the lack of independent access to the accused.


The claim that these courts have helped reduce the threat of terrorism is weak.


The assertion that these trials met ‘due process’ makes a mockery of the principle of fair trial. Such trials are not just a violation of the rights of the suspects, they also necessarily bring the finding of guilt by these courts into question. On this ground alone, military trials of civilians must not be extended.

The second claim, that these courts have helped reduce the threat of terrorism, is also weak. In the last nine days alone, several attacks alleged to be acts of terrorism have killed over 100 people in Pakistan. Even when they were in operation, the country saw some of the deadliest attacks in recent years including at an imambargah in Shikarpur, a university in Charsadda, a park in Lahore, a hospital in Quetta, and a mosque in Mohmand Agency. In this context, the claim that military courts have reduced terrorism, without any evidence or elaboration, is perplexing.

In any event, it is nearly impossible to show any kind of causal link between the types of jurisdiction used to adjudicate serious crime like acts of terrorism and the propensity of those who engage in such crimes to carry out these kinds of acts.

The impression created that ‘terrorists’ roaming the streets were incapacitated from carrying out further attacks only because of convictions by military courts is also difficult to sustain.

These courts have largely convicted people in two categories of cases: people whose cases were pending in ordinary criminal courts or anti-terrorism courts that were transferred to them for trial; and people who were detained at ‘internment centres’ in Fata or other undisclosed locations (many of these people are alleged to have been subjected to enforced disappearance). This indicates that many of the convicts were already in detention before their military trials, and not suspects ‘set free by the courts’, as is popularly believed.

A dispassionate assessment of the performance of these courts shows they have been catastrophic for human rights and the rule of law in Pakistan. The 21st Amendment targeted the Constitution’s fundamental principles: separation of powers, independence of the judiciary and protection of human rights. Yet, the promised ‘quick results’ — the ‘benefits’ of the ‘human rights cost’ — are nowhere to be seen.

This is not surprising, as the very rationale behind military courts as a solution to terrorism was flawed.

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 convicting a large number of people without the fair and impartial adjudication of responsibility — will require major rethinking of Pakistan’s political and security strategy as well as significant 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 political expediency at the cost of the fundamental principles of fairness.

The government failed to enact any of these reforms in the two-year period military courts were in operation. And now, instead of admitting that the 21st Amendment was a terrible mistake, the government has started talks to reintroduce the courts.

This attempt must be resisted. We have ample evidence to show reviving these courts will not help counter the very real terrorist threat facing Pakistan. Instead, it will bring Pakistan a step closer to permanently incorporating into law what was said to be an ‘exceptional’, ‘short-term’ departure from the normal legal processes and human rights protections, giving the state an excuse to continue to ignore the actual reasons behind the lack of accountability for terrorism and other serious crime.

The writer is a legal adviser for the International Commission of Jurists.

reema.omer@icj.org

Twitter: reema_omer

Published in Dawn, February 21st, 2017



The views expressed by this writer and commenters below do not necessarily reflect the views and policies of the Dawn Media Group.


Comments (32) Closed



Kartikay Ungrish Feb 21, 2017 04:22am

Great write up...And terms u r an intelligent and honest girl. Much appreciated.

talha Feb 21, 2017 08:33am

Would we allow military men to be trialed in civilian courts? If yes, then we can think on the lines of civilian being trialed in military courts. As simple as that.

Fayzee Feb 21, 2017 10:05am

The writer has discussed the matter in length, but as usual, not given any solutions to the problem. These courts were effective at the initial stage, but due to non-cooperation by the civil authorities, these became sort of inept.

As for coercive measures, if these are not used to get ‘confessions’, there won’t be any confessions at all and this is done worldwide, it’s not Pakistan specific.

The increase in terrorist activities in the last few days is a proof that the non-implementation of these trials has let the terrorists free as they have become fearless.

I feel that the delay in the implementation of the convictions is the real reason for its failure.

I agree with you when you say that the government failed to enact any of the reforms and that is the real cause of the courts being ineffective, rather any other reason.

N C Mishra Feb 21, 2017 10:06am

Terrorism is not akin to ordinary thefts. In any case, courts can not prevent crimes (except to some extent if trials are speedy and fair). The causes are political, transcend boundaries and even involves ambitious people in the garb of religious leaders. This "disease" needs different treatment and military courts may actually be only counter productive.

xmaestro Feb 21, 2017 10:41am

I'm not sure if any courts are doing any good at the time. Reform the justice system, police departments and maybe we can talk about relying on civil courts then. Until then, they seem extremely incompetent. We are unfortunately, at a point where we would rather have a result then no result at all.

Shalone Feb 21, 2017 10:51am

I agree that military courts are no answer to terrorism or any other disturbances. It is also undemocratic. It is a shame that an elected government supports such course of action. Terrorism will only decrease if we try to change the mindset of people, particularly of young ones to learn to respect, if not accept other thinking people. As long as our destination is the same, we should not care which path others take to get there. As we know, the threat of terrorism makes us all fear and timid. Some in fact show understanding for such actions. That is far more dangerous. WE need courage and determination to win the battle.

Syed F. Hussaini Feb 21, 2017 10:49am

They are hired and paid their salt to be soldiers--not judges.

To demand to be judges is mutiny.

The government was forced to dump reforms.

The 21st amendment practically abrogated the constitution.

The parliament would further violate the constitution, betray the people, lose its mandate and commit suicide if it did not undo the 21st amendment.

Thanks, Ma'am!

murad Feb 21, 2017 10:57am

Yes.No more military courts. As there is a big question mark on fairness of trials!

aAFIYAT nAZAR Feb 21, 2017 11:14am

Great article....only sane voice will heed to such great ideas....we can't say anything about insanity which has fiercely grabbed the echelons of Pakistan....we have learnt that we will never learn as a nation and continue to make blunders after blunders....

Iqbal Bhai Feb 21, 2017 11:15am

Before the military courts, there was never a single punishment of terrorists who had killed people left right and center without considering the human rights of innocent citizens. Those terrorist were tried and sentenced in the courts. Yet no punishment. Military courts do not bring the terrorism down. They send strong signals to terrorist and more importantly, their handlers and intended and unintended sympathizers. Unless our judicial system is strong, this is the only solution to your problems. Like it or not.

AW Feb 21, 2017 11:22am

Significant reform of the civil and criminal justice system is long overdue. The problem is that the government and the parliament continue to ignore and postpone this high priority national matter for unknown reasons and interestingly no one is holding them accountable. A society without an effective and efficient justice system can not function.

Fayzee Feb 21, 2017 11:55am

The writer has discussed the matter in length, but as usual, not given any solutions to the problem. These courts were effective at the initial stage, but due to non-cooperation by the civil authorities, these became sort of inept.

As for coercive measures, if these are not used to get ‘confessions’, there won’t be any confessions at all and this is done worldwide, it’s not Pakistan specific.

The increase in terrorist activities in the last few days is proof that the non-implementation of these trials has let the terrorists free as they have become fearless. I feel that the delay in the implementation of the convictions is the real reason for its failure.

I agree with you when you say that the government failed to enact any of the reforms and that is the real cause of the courts being ineffective, rather any other reason.

Imran ali Feb 21, 2017 12:14pm

The status quo both establishment and politician not interested in reform of judiciary system..ATC and Military court benefit them...the establishment should focus on the real terrorist instead of focusing only in karachi in breaking and forming political parties.

SOhan Feb 21, 2017 12:28pm

'but there are no overnight solutions to a crisis caused by decades of neglect ' - this is the key. But Pakistan is in a catch 22 situation, it is not clear where to start and when it will finish. A long term rehabilitation process is required to overcome this malaise. Mass killings by the military targeting a region, making millions of innocent people homeless or quick conviction of suspects are likely to cause severe trauma to people and frustration leading to further acts against the state. A vicious cycle.

Javed Arshad Feb 21, 2017 01:33pm

Ineffective justice system lead to creation of military courts, noncooperation by govt in implementing the decision rendered military courts too ineffective, we are back to square one. Get rid of corrupt leadership who wont let the best system work. Listen to the remarks by SC justices hearing Panama case - those are the pointers to the major fault lines.

Pakistani Feb 21, 2017 01:54pm

Military courts is the need of the hour no more excuses acceptable.

Jawad Feb 21, 2017 02:12pm

During the tenure of the military courts, terror attacks were scarce... as soon as these courts tenure finished, the system fell flat on its face.. if civilian courts were capable enough, 1000s of apprehended terrorists would be hanging including 80% of the politicians.. pakistanis should come out of a utopian state and start living in pakistan first to comment on such sensitive issues.

tayyabsatti Feb 21, 2017 02:36pm

i study all article, in my opinion if the special court make his process fast it is beneficial.secondly, law will be equal for all without any discrimination.

nnnn Feb 21, 2017 03:07pm

if there are military courts in the usa, their formation and existence in that country are justified; but if the same is done in Pakistan, the some people oppose such moves; please have mercy on us

zafar abbas Feb 21, 2017 04:11pm

I totally disagree with the writer, we are passing through a difficult and an extra ordinary phase and in such situations extra ordinary steps are required to be taken.

zehreela Feb 21, 2017 04:51pm

Military courts are completely democratic. The trials are fair and it is the need of the hour... Instead of strengthening the country courts they are establishing/extending new courts under the name of Military courts. How intelligent our democratic leadership is to endorse and promote such decisions. Clapping

Amjad Wyne Feb 21, 2017 05:49pm

Good advice for good times...until then, Military Courts are the right solution

Mansha Sherazi Feb 21, 2017 07:36pm

This article sounds perfect in a society that adopts transparent policies when appointing public office bearers, who demonstrate highest standards of honesty and integrity but unfortunately it is not applicable here in Pakistan. We know for a fact that militancy and terrorism are the derivatives of corruption, favouritism and nepotism in almost every sector of our society. We know that "Easier Said Than Done" sort of attitude has been the glaring approach

junaid waheed Feb 21, 2017 07:48pm

Having read the article I partially agree, but the question is when the country doesn't have a speedy justice system and set the suspect free after awhile then only two options come to my mind.Either go for judicial reforms or revive the military court in the present scenario. The author has only highlighted the dark side of the military courts skip the shortcomings of the judicial system in the country.

Ali Feb 21, 2017 08:44pm

judicial reforms is the need of an hour. i endorse you thoughts.

Ilyas ch. Feb 21, 2017 09:41pm

Military courts should be extended,although they are unconstitutional,but they are the need of an hour as well as they had operated well...

Harun al shEikh Feb 21, 2017 10:08pm

In democracy, the power of public is supreme.

I agree with writer, the military court can not be answer.

Be positive, have a rule of law. Keep accountability.

Think of education, practice education....

This is what is required....

RK Feb 22, 2017 01:40am

@Shalone, I absolutely agree with u. the people who show leniency towards radical approach is even more dangerous phenomenon in our society which has gone way beyond polarization.

GP65 Feb 22, 2017 04:05am

@Fayzee "As for coercive measures, if these are not used to get ‘confessions’, there won’t be any confessions at all and this is done worldwide, it’s not Pakistan specific."

Wrong. In the two countries I have lived in - India and US, confession in police station is not admissible in the court. Unless there is a confession in front of the magistrate, it is not admissible in the court of law.

GP65 Feb 22, 2017 04:12am

@nnnn "if there are military courts in the usa, their formation and existence in that country are justified; but if the same is done in Pakistan, the some people oppose such moves;"

Really? In US, a US civilian can be tried in a military court? Please provide reference for this factually incorrect assertion.

A.R Feb 22, 2017 06:22am

In short, you are arguing that military courts are bad. Fine , but is there any solution to this terrorist menace under 'constitution' and ' structures' ?

CITIZEN Feb 22, 2017 10:35am

Military courts are short term solution in Pak,for longer term our broader reform should be introduced in the civil courts.