The political deadlock over reviving the military courts in Pakistan still persists despite the fact all the political parties have already given the nod to this plan ‘in principle’. They have yet not succeeded in finalising the nitty-gritty of this crucial matter. These military courts became dysfunctional when their 2-year constitutional tenure expired last month. At the moment, there is a considerable difference of opinion among various political parties vis-a-vis the tenure, scope and jurisdiction of these courts. In the face of strong opposition from different political parties, the government has already decided to reduce the tenure of these courts form 3 to 2 years.

Pakistan Peoples Party (PPP) has also recently convened an APC to discuss this issue in detail. The ruling political party would find it difficult to secure the required constitutional amendment to revive military courts without the active support of PPP, which is second largest political party in the parliament. It was one of the fundamental points in the National Action Plan to establish the military courts in the country for the period of 2 years. Therefore, now the act of seeking an extension in the tenure of these courts beyond 2 years can somehow be described as the very ‘first amendment’ in the NAP.

After the unfortunate 2014 APS Peshawar incident, the parliament passed the 21st Amendment, which paved the way for the establishment of military courts in Pakistan primarily “for speedy trial of certain offences relative to terrorism, waging of war or insurrection against Pakistan and prevention of acts threatening the security of Pakistan”. Some 11 military courts were set up in all the four provinces in Pakistan. Since their establishment in February 2015, as many as 274 individuals have been convicted by the military courts. Some 161 individuals were sentenced to death, 12 of whom were executed, while 169 persons were given jail terms (mostly life sentences). On the other hand, a large number of cases decided by these courts are currently pending in the superior courts in the country. Observably the conviction rate in the military courts has been pretty high.

Though the Supreme Court of Pakistan has formally validated the act of establishment of military courts through a landmark verdict, yet these courts have constantly been criticised by various quarters in the country. Essentially rejecting the extraordinary-circumstances-warrant-extraordinary-measures type reasoning, critics are finding it quite difficult to accord this ‘parallel judicial system’ with the tenets of human rights and due process of law. Apparently, the procedure adopted by the military courts is not strictly in accordance with the Article 10-A of the constitution of Pakistan, which ensures the due process and fair trial to the accused person.

It is really unfortunate that even a practicing lawyer like me doesn’t have any strong argument against the establishment of military courts. The very state of our criminal justice system is anything but satisfactory. According to Rule of Law Index 2016 released by the World Justice Project, Pakistan stands at 81th and 106th positions in terms of criminal and civil administration of justice respectively – among 113 assessed countries around the world. So the judicial system of Pakistan is now only comparable to war-torn countries like Afghanistan and other least-developed countries of Africa. Owing to certain lacunas in the existing criminal justice dispensation, anti-state elements often manage to go scot-free. This is the reason a known sectarian terrorist like Malik Ishaq could not be convicted by any criminal court for a long time. Similarly, we have just observed the plight of this judicial system in the Ayyan Ali case. If a judicial system cannot promptly nab an ordinary criminal, how can it be relied to punish high-profile terrorists in the country?

In fact, just like in Pakistan, the anti-terror laws enacted and enforced by any country in the world have been open to general criticism. Following the 9/11 incident, the US proactively reacted by taking some drastic steps, including the enactment of the Patriot Act and the Homeland Security Act. Like the Guantanamo Bay detention camp, it established more than some 100 secret prisons known as ‘black sites’ throughout the world outside the US territory and jurisdiction. The TADA and POTA in India, and the Prevention of Terrorism Act, 1997 in Sri Lanka are the similar controversial anti-terrorism laws.

In order to contain the rising wave of sectarian terrorism in Pakistan, the Anti-Terrorism Act was promulgated in 1997. However, this law failed to meet the counter-terror challenges faced by the country in the post 9/11 period. Therefore, the much-debated Protection of Pakistan Act, 2014 was passed by parliament for this specific purpose. This law addresses the underlying issues necessarily associated with the very task of counter-terrorism in Pakistan. But sadly, owing to lack of the required degree of political will, seriousness and resolution on the part of the civilian government, this law could not be properly enforced in the country. The government hardly made any serious or sincere endeavour to set up special courts, a special prosecution agency or joint investigation teams required by this law. Nor did it make any arrangement to ensure the protection of judges, prosecutors and witnesses under this Act. Instead, it readily chose to make a constitutional amendment to establish military courts, shifting the burden of trial of terrorists to the military.

Aimed at improving the general quality of dispensation of justice in the country, the superior judiciary has been formulating various National Judicial Policies for a long time. These policies include measures like fixing time-frames for the disposal of different cases, capacity building of judicial officers, guidelines for the efficient disposal of cases, eradication of corruption, improvement of the quality of investigation by the police, prison reforms, installation of video conferencing facility between the courts and jails etc. Unfortunately, all these NJPs have also failed to yield any fruitful results due to lack of sincerity on the part of the concerned stakeholders – the bench and the bar.

Some representative bodies of lawyers have been holding conventions and meetings to harmonise opposition against the military courts. But ironically, these groups have not held any significant convention or conference to overhaul, or otherwise improve, the troubled judicial system so far. More than two years have elapsed since the establishment of these courts but no pragmatic plan has yet been evolved to switch this system back to normal. Therefore, now it is quite useless to shed crocodile tears over the demise of ‘constitutionalism’.

As a matter of fact, the establishment of military courts does not necessarily represents the aggravated security situation in Pakistan, but rather indicates the dilapidated state of our criminal justice system. A judicial system which has miserably failed to promptly apprehend, try and punish individuals involved in the disruptive terror activities. Instead of seriously trying to evolve a judicial procedure to efficiently try and punish the hardcore terrorists, the federal government has found it quite expedient to set up military courts by simply maintaining that “extra-ordinary circumstances warrant extra-ordinary measures”. Certainly, trying a hardened criminal or militant in a court of law is the primary responsibility of the civilian government. And this responsibility should not be shifted to the military, which is already actively playing its due role to curb terrorism in the country.

Despite its flaws and shortcomings, the Protection of Pakistan Act 2014 can adequately deal with the judicial aspect of our current counter-terror challenges. It provides a pragmatic and effective judicial procedure to expeditiously decide the terror-related cases in the country. Therefore, the federal government should seriously endavour to enforce this Act in letters and spirit, rather than seeking a quick-fix solution in the form of military courts after repeatedly adopting a cumbersome procedure involving a constitutional amendment.

However, at this stage, in the absence of any functional judicial forum to replace military courts in Pakistan, it is not advisable to abolish these already-established special courts forthwith. This step would only favour the hardcore terrorists besides jeopardising our current counter-terror manoeuvring. Therefore, until the government evolves a viable alternative legal regime for this purpose, these military courts should be allowed to function as usual. In fact, a period of one year is reasonably sufficient for this ‘transition’. Meanwhile, the government can introduce a comprehensive legal regime to effectively deal with the terrorists of all shades, in addition to the ‘jet-black’ terrorists.