On 7 January this year, Pakistan heralded what many in the country believed was a watershed moment in the country’s fight against terrorism. The president, Mamnoon Hussain, had granted his assent to the 21st Constitutional Amendment Bill and the Pakistan Army Act (Amendment) Bill, both of which were passed by a thumping majority in Parliament and had the population’s overwhelming support. Together, the two ordinances seek to permanently eradicate terrorism from the country’s soil.
Both these laws cite “extraordinary situation and circumstances”—the grave and unprecedented threat to Pakistan’s integrity—as the underlying cause behind these special measures, the first of which is granting exclusive power to military tribunals, to the exclusion of civilian courts, for prosecuting and trying terror cases. As per the text of the amendment to the Army Act, the threat of armed insurrection in the name of religion by terrorist groups and militia has made it incumbent to enact such strident provisions.
These military-run courts are a part of the 20-point National Action Plan drawn up by Prime Minister Nawaz Sharif to wipe out the “coward terrorists” who carried out the brutal attack on the Army Public School in Peshawar, on 16 December last year. That assault, for which the Taliban took full responsibility, was indeed ghastly, leaving behind the corpses of 133 children in its wake. As reported, these tribunals will be dealing with about three thousand insurgents captured in military operations in Swat and Waziristan, as well as 300 and more terror suspects.
The military courts were slated to start functioning on 21 January. Although there has been no report yet on how they are operating, these manifestations of militarised justice cast a foreboding shadow on due processes and the rule of law in Pakistan. More worryingly, such measures threaten to hurl the country and its polity in the very anarchy and despotism that these procedures are meant to thwart.
Before getting into the specifics of how the amended laws will skew the scales of justice, it is essential to take note of historical precedent. Allowing military tribunals to adjudicate terror offences has proven to be disadvantageous from a constitutional perspective. The damage has been even more distinct when these tribunals have tried civilians.
As the International Committee of the Red Cross (ICRC) categorically stated in an Interpretative Guidance Note, only “combatants,” that is, members of an organised armed group having sustained participation, can be tried before military courts. The members of motley groups, contributing to violence in a sporadic, spontaneous manner are excluded. Furthermore, these tribunals were established under the ambit of International Humanitarian Law for the purpose of trying war crimes—specific acts in the course of armed conflict or after a declaration of war—certainly not coterminous with acts of violence like those in Pakistan, which threaten to throw the country into turmoil. It is significant that the ICRC, universally regarded as the custodian of International Humanitarian Law, or the laws of war, issued the guidance note in the aftermath of 9/11, when the United States was establishing military tribunals to try those it captured in the war in Iraq and Afghanistan.
The foremost reason for military tribunals to be barred from trying civilians is the very procedure they follow. Their rules of evidence are different, in that the judges decide whether an accused should even be allowed to present a piece of evidence before the court. In contrast, civilian courts do not impose restrictions on presenting evidence, they only decide whether and how it would be appreciated.
Given that these tribunals have been designed solely to mete out quick and expedient justice, when complex questions of law as well as fact are to be decided, the summary trials of military tribunals prove to be grossly inadequate, falling short of the standards ordinary citizens and civilians are entitled to. The presumption of innocence, an inalienable part of a fair trial, is disregarded by such tribunals. This problem is further complicated by the fact that the judges in these courts are appointed by army commanders, and since they are essentially subordinates, there may be a high possibility of pre-existing bias leading to the possible paucity of impartiality. While Article 175 of the Constitution of Pakistan lays down mandatory provisions and safeguards with regard to appointment of judges, it has been rendered inapplicable. The Pakistan government and army might argue that since the maximum punishment that can be handed out is death—which is irreparable—all due precautions shall be taken. But, this assurance rings hollow because if a system is fundamentally flawed and threatens to violate a citizen’s fundamental right to the rule of law, supposedly ameliorative measures don’t undo the harm
According to the amendment to the Pakistan Army Act, almost every violent act—including killing for ransom—is categorised as an act of terrorism, and the government is empowered to transfer any such case that is pending in a civilian court to the military tribunals.
Additionally, as per Section 4 of the act, the tribunals are not required to recall witnesses or record evidence that has already been recorded in the civil court before, enabling the court to pronounce a verdict after what can only be called a summary trial. This means that the military is also bestowed with unchecked powers to set up kangaroo courts of its choice.
Considering that it was a wave of attacks by religious extremists that prompted this drastic change in the law, it is ironic that both the ordinances explicitly exempt all religious political parties when describing a religious sect. The role of religious fundamental parties in breeding terrorism and fomenting violence in Pakistan is an established fact, as is their relationship with the military establishment. Salman Taseer’s assassination is an apt illustration of how deeply these religious parties have penetrated into the armed forces’ rank and file. The governor of Punjab, who was a senior member of the Pakistan People’s Party, was shot dead for opposing the blasphemy law, which has been widely endorsed by most religious fundamentalists in Pakistan. His assassin was his own bodyguard and a member of the Elite Force of Pakistan.
It is usually a pugnacious judiciary that stands up to the executive or military when they are about to imperil the constitution, and along with it, fundamental rights and basic civil liberties of the state’s citizens. In response to the recent amendments, Yasin Azad, former president of Pakistan’s Supreme Court Bar Association, assailed the ordinances for causing grave depredations upon these rights, namely those granting a fair trial and access to justice.
In fact, when, in 1999, the Nawaz Sharif regime had passed similar laws to combat rising instances of sectarian violence, a nine-judge bench of the Supreme Court had deemed them unconstitutional. Ruling in Liaquat Hussain, the court held that military courts constituted a parallel legal system wholly outside the boundaries permitted by the constitution. Even if the military was acting in the aid of, and with the purpose of restoring civilian power, a takeover of the judiciary would be valid only if the constitution was either abrogated or amended in its entirety.
But will the judiciary come to the rescue this time round? Over the years, instead of halting the army in its tracks, the Supreme Court has always supported, even endorsed, the power grab by the generals.
In a 2013 paper, Drexel University’s Anil Kalhan traces this tacit military-judiciary pact. Through this paper, Kalhan shows how, whenever the country has been in political turmoil, judges have legitimised the imposition of martial diktats over the constitutional institutions and rights. He starts with 1955, when Governor General Malik Ghulam Muhammad got the full backing of the Supreme Court in disbanding the constituent assembly on the ground that “state necessity”—imminent danger to the sovereignty and security of the republic—demanded the suspension of parliamentary democracy. Then in 1972, the court, while dismissing Begum Nusrat Bhutto’s challenge to General Zia-ul-Haq’s coup, lavished praise on him and the army for saving Pakistan from a grave national crisis. Thereafter, Kalhan takes up the ruling Syed Zafar Ali Shah in 2000, where the judges of the apex court anointed General Musharraf as the country’s head, fully agreeing with his claim that a civilian government was inimical to Pakistan.
Will the judges in 2015 help, perhaps even enable, the military of Pakistan to consolidate its position and arrogate all powers to itself? That question remains moot, but Pakistan’s lawyers provide some cause for optimism. Already, the Sindh High Court Bar Association has decided to challenge both the amendments before the Supreme Court and prevent the complete jettisoning of democracy and rule of law. On 30 January, the Lahore bar also joined in, and has called for a nation-wide strategy to mount a strong constitutional challenge to the military juggernaut.
Saurav Datta works in the fields of criminal justice reforms and media law. He is associated with the Commonwealth Human Rights Initiative and also teaches in Bombay and Pune. Opinions are personal.