Dr. Moeed Pirzada |

Will Pakistan again extend the military courts? And if yes, for how long? What will Imran Khan led government do if the extension of the military courts did not get the approval of the parliament? These questions raging for the past several weeks will come to a head in February because without the legal cover these courts, working since January 2015, will cease to exist by end March.

Why Military Courts are not a Good Solution?

The case against the military courts is simple and strong. Military courts remain focused on the examination of facts and circumstances, a full range of rights and legal defences, especially in terms of human or eye witness evidence, guaranteed to an accused under the Pakistani constitution are not available. These courts are held in undisclosed locations, media are not allowed, the identity of judges, prosecutors and witnesses is not revealed to the public. Why should a state suspend the full rights of accused, how could the full range of elements of “due process” available under Pakistan’s own constitution be denied to the accused?

Additionally, the trial of civilians, even accused of terrorism, by military courts leads to the militarization of the legal system. Civil society activists, human right organizations, sections of Pakistani media and many in the international news agencies have justification when they end up using all kinds of adjectives to condemn the existence of these courts. They are now joined by the leading opposition parties – PPP and PMLN – in Pakistani parliament who are vowing not to allow extension of these courts.

Life for all politicians between 2015 and 2017 and between 2017 and December 2018 was business as usual: interesting, busy and full of rhetoric on all issues minus the military courts and judicial reform.

PPP was the first one, when its chairman, Bilawal Zardari Bhutto, commented in December that “it will be difficult for PPP to support another extension of military courts”. In January, PMLN also joined this opposition. By now almost all opposition parties and civil society activists are in a sort of rough alliance against the extension of military courts – first initiated through the 21st Amendment, in January 2015, after the Army Public School tragedy on 16th December 2014.

While the motivations of these diverse political actors – NGOs, human right organizations, media pundits and political parties – may be different – for instance NGOs and human right organizations are bound by their overall philosophy, their fixed agendas and their patterns of funding – but their arguments are pretty similar. They all argue that military courts are unjust, a denial of due process of law and constitution and thus a violation of the human rights. But their positions are also similar in another unenviable way; and that is: none of them offers any solution.

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Where is a Genuine Political Debate?

While PPP and now PMLN have taken a position against the military courts the rather awkward fact – something their best apologists are unable to deny in television debates – is that since 2015 neither PPP nor PMLN have done anything substantial, or real, or even half-hearted to define and develop any alternatives to the military courts.

Yes, PPP has historically projected itself as liberal and left-leaning, Senator Raza Rabbani, a staunch member of the old guard of PPP existing since early 1970’s shed few tears in 2017 while signing the extension of military courts, other PPP leaders made some critical comments for few days, some lawyers cried hoarse for few days – less than a week – on TV programs but then they all went on with their lives, forgetting about the military courts, the accused under trial, issues of human rights and challenges of confronting terrorism. Life for all politicians between 2015 and 2017 and between 2017 and December 2018 was business as usual: interesting, busy and full of rhetoric on all issues minus the military courts and judicial reform.

So if military courts are allowed to lapse in March then what these will be replaced with? Who will deal with the hundred or so terrorist cases still pending before the military courts? What about fresh cases of terrorism? Have any reforms been done since 2015 to improve capacities of normal courts or even anti-terror courts instituted under the 1997 Act? Have any changes been brought to the Law of Evidence, have investigators, forensic experts, prosecutors and judges been trained? Has any “Witness Protection Program” on the pattern used by the United States and Latin American countries developed? Have any budget allocations made for all these reforms?

If political parties decide not to extend the courts then they have to come up with a
clear road map for reform of criminal justice system and judiciary. 

Was all this even discussed, on any consistent pattern, by any party in the parliament? Did PPP ever walk out from assembly on the failure of PMLN government to institute reforms to get rid of the military courts? Has PMLN – that had initiated the military courts in Jan 2015, after the Army Public School massacre – taken any steps, during its government from 2013 to 2018 to initiate any meaningful reforms and strengthening of the criminal justice system, of police investigations, prosecution capacities and courts? Media, lawyers, human right organizations and that motley combination of NGOs, rights activists and protesters of various kinds defined as “civil society” come up a little better.

They have been talking about these things – security for judges and witness protection program – off and on, but once again they too have never been consistent in the pursuit of their convictions – if their positions can be defined as “convictions” Even this bird eye view recall of the past four years thus ends up creating this unmistakable impression that opposition parties and many in the media and NGO community are doing their usual politics in Pakistan’s traditional civil-military divide. Assumptions are that military courts are for the military to defend, these courts are “something” that benefits the military and military – or broadly the Establishment – will offer some concessions by exercising influence over the PTI government to obtain legal cover in the parliament.

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Anyone even slightly familiar with the Pakistani politics is aware that PPP’s top leadership – Asif Ali Zardari, Faryal Talpur and many others – faces serious legal challenges in what is popularly called, “Fake Accounts Case” and political troubles of Sharif family are now part of world media discourse. But the underlying assumption is that “military courts” are the military’s problem. These hopes may have been dimmed somewhat by the statement of Gen.

Asif Ghafoor, DG ISPR who asserted, on January 18, that “military courts were not the wish of the military but a consensus decision by the parliament” and it’s up to the parliament to decide whether to extend the military courts or not. He too was being overly simplistic (though he did call it a national problem) because terrorism – as it happened between 2007 and 2014 – ultimately becomes challenge for the state and thus military’s problem and thousands of officers and soldiers sacrificed their lives in combating terrorism in FATA, Swat, Karachi, Balochistan and on check posts and garrisons all across GT Road.

The Impotence of Pakistan’s Criminal Justice System?

Pakistan started facing acts of terrorism soon after its decision to side with the US-led war against terrorism in September 2011. These acts, initially restricted to tribal areas, spread all over Pakistan after the forceful eviction of militants from Lal Masjid (Red Mosque) in Islamabad in 2007. Most media discussion in the context of military courts zooms on to the tragedy of Army Public School Peshawar, in Dec 2014, in which TTP linked terrorists, directed from their sanctuaries in Afghanistan, in unbelievable savagery butchered almost 150 children and teachers of the school calling it revenge against army actions against their families.

But this rather misleading debate – centred exclusively around APS tragedy – ignores the fact that since 2006, police stations, army posts, garrison centres, schools, colleges, parks, hotels, courts and even mosques were repeatedly attacked. Hundreds perished in attacks against Lahore High Court, ISI and FIA offices in Lahore, Islamabad, Hyderabad and other parts of the country. FIA headquarters in Lahore, district courts in Islamabad, churches and mosques all over the country were repeatedly targeted with ease.

Pakistan started facing acts of terrorism soon after its decision to side with the US-led war against terrorism in September 2011.

There came a period of intense fear and uncertainty when schools across the country hired sharpshooters and snipers to protect children and teachers were asked to train in the use of weapons – when governments in different provinces started to confess that they don’t have policing resources to protect all schools. Terrorists even if nabbed and arrested by intelligence and police were soon set free under a broader legal argument of “want of evidence” but in reality a number of factors behind the scenes were responsible including corruption of law enforcement agencies, bribery, incapable forensic, inefficient and disinterested prosecution and threats from terrorist outfits to prosecutors and judges.

This was more or less similar to the challenge faced by governments in Latin America in the 1980s and 90s when they were actively fighting the drug cartels. Netflix production, Narcos, effectively describes the power of criminal mafias – Medellin and Cali cartels and their deep penetration into the political and criminal justice system of Columbia. Pakistan, between 2007 and 2014, was no different. Case of Marriot Hotel bombing (2008) in which more than 50 died – including several diplomats and foreigners – and around 300 injured in the most horrific act of terrorism in the centre of Islamabad is a good example to understand the impotency of Pakistan’s criminal justice system – when terrorists were finally arrested, with overwhelming evidence connecting them with Marriott bombing, they were set free after several months of fruitless trial.

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What happened after the murder of Geo TV reporter, Wali Khan Babar further illustrates the helplessness and impotence of Pakistan’s traditional criminal justice system. Babar was gunned down by unidentified men, apparently linked with MQM killer gangs, in Karachi on January 13, 2011. After his murder, almost all the witnesses or sources that could have provided any evidence or help with the investigation were killed systematically one by one. Geo TV, considered audacious in lashing out at governments and establishment too remained cautious and muted in pointing towards the actual killers and their masterminds. Before the institution of military courts, therefore, the state of Pakistan had no instrument to send the message that culprits that challenge its authority can be effectively punished.

Legal philosopher and professor of jurisprudence at Oxford, HLA Hart, in his famous work, “Concept of Law” had argued that the “purpose of law is to create deterrence” for law enforcers cannot reach every offender or prevent every atrocity; they have to conduct themselves in a way that sends message that those who challenge the writ of law can be traced and punished. But Pakistan between 2007 and 2014, had no deterrence; this is what Gen. Asif Ghafoor, DG ISPR, was trying to say in his statement of 18th Jan. Impotence of the overall criminal justice system encouraged the police forces to enact the draconian practice of what is euphemistically called “Police Encounters” (killing of repeat offenders, in custodial killings through staged encounters; a subject that in case of Pakistan befits a PhD) Military courts, according to ISPR’s statement on 18th Jan, in their four years of existence, since 2015, have decided a total of 546 cases out of the total 717 cases which were referred to them by the government.

Hundreds perished in attacks against Lahore High Court, ISI and FIA offices in Lahore, Islamabad, Hyderabad and other parts of the country.

In early December, it was reported that Ministry of Defense had briefed the parliament that 546 cases were disposed of; 310 were given death penalty, 234 were given rigorous imprisonments of various durations and two accused were acquitted. However only 56, out of 310 who got capital punishment, were executed because Supreme Court had intervened in August 2015, after the passing of 21st Amendment and granted accused under trial in military courts right of appeal in High Courts and Supreme Court and hundreds of cases are now pending in the superior courts – including 254 of capital punishment. Defense Minister Pervez Khattak had told the National Assembly in December that the military courts had maintained the conviction rate of over 60 per cent.

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Why Pakistan’s Criminal Justice System Failed against Terrorism?

Among the many issues plaguing the justice system is the lack of security for the judges and prosecutors handling terror or other serious criminal cases. Since 2003, there have been at least 12 direct attacks on judges in Pakistan and countless others against judges’ family members. In these attacks at least nine judges were killed and half a dozen injured. Most of these attacks were carried out by militants linked with the sectarian militants in Punjab and ethnic terrorist gangs in case of Karachi.

Police forces to this day remain inadequately trained, ill-equipped and short-staffed to investigate terror cases. Officers say that the investigation funds provided are too meagre to cover the costs and expenses incurred. Independent sources and legal experts dealing with terrorism-related cases point out that investigators, in most instances, neither have the motivation nor the resources to do justice to many of the cases they are assigned to. With poor evidence collection mechanisms, an underdeveloped law to interpret circumstantial evidence, human witnesses become crucial for courts.

Due to the lack of an effective witness protection system, witnesses in violence and terror cases either don’t step forward or back out due to harassment and threats they face. There have also been incidents – like Wali Khan Babar case in Karachi – in which witnesses have been systematically eradicated. Due to inadequate courts and judges, the caseload is rising every month. According to the Law and Justice Commission of Pakistan, there are around 1.9 million cases pending adjudication in the country. Total judicial strength of the country is 4,100, against a population of more than 207 million.

Defense Minister Pervez Khattak had told the National Assembly in December that the military courts had maintained the conviction rate of over 60 per cent.

It translates to one judge for 48,838 people. “There are about 1.9 million cases pending in the country before all the courts put together and to handle such a huge number of cases there are only about 3000 Judges and Magistrates available from top to bottom. Successive governments have failed to suitably increase the number of Judges and Magistrates on account of financial constraints. 3000 Judges and Magistrates cannot handle 1.9 million cases even if they work for 36 hours a day,” new Chief Justice of Pakistan, Asif Saeed Khosa observed in his speech during the full court reference held to mark a farewell to the outgoing chief justice and to welcome the new one.

Justice Khosa, one of the six judges who had opposed the institution of military courts in January 2015, also observed that judges have to spend a lot of time in researching and writing judgments, due to lack of law clerks, research assistants and judgment writers. But he promised to conduct supreme court in a way that military courts will not be needed. Some media reports have put the conviction rate in Pakistan at less than 10 per cent, one of the lowest in the world. So it remains to be seen that how the new chief justice, a very respected constitutionalist, will change all that in less than eleven months of his tenure – he is retiring in December 2019.

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Way Forward?

Ministries of Interior and Law have already decided that military courts need to be extended; for how long is however not clear. Prime Minister, Imran Khan, in the first week of January, had created a two-member committee consisting of Foreign Minister Shah Mehmood Qureshi and Defense Minister Pervaiz Khattak to enter into discussions with the opposition parties to get their support. Politicians, of all sides, the legal community and civil activists, have to think through this issue very carefully. It’s true that circumstances have changed and the steel knuckle of the state can wear the glove again.

But if political parties decide not to extend the courts then they have to come up with a clear road map for reform of the criminal justice system and judiciary. And mere thunders of resolve and twitter statements will not be enough; this will now need a clear time table, defined leadership and budgetary allocations. The best way forward will be to extend the military courts for a year or 18 months and the process of reform of anti-terror courts – with judicial reform, security for judges, changes in Law of Evidence and Witness Protection Program etc – kick-started to enable the system to take over from the military courts.

Moeed Pirzada is a prominent TV Anchor and Editor Strategic Affairs with GNN News Network and a known columnist. He previously served with the Central Superior Services in Pakistan. He studied international relations at Columbia University, New York and Law at London School of Economics, UK as a Britannia Chevening Scholar. He has been a participant in Chaophraya Dialogue, has lectured and given talks at universities and think tanks including Harvard, Georgetown, Urbana Champaign, National Defense University, FCCU, LUMS, USIP, Middle East Institute and many others. Twitter: MoeedNj The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.