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Temporary law mustn’t become permanent

Pakistan’s parliament must put a halt to military courts that try civilians, says Reena Omer.

Reena Omer | New Delhi |

Last week, Pakistan’s law ministry sent a proposal to the federal cabinet for another extension in the jurisdiction of military courts to try civilians for terrorism-related offences. This time around, parliament must discharge its duty to protect the fundamental rights of the people of Pakistan and ensure that military courts are not given another extension. Instead, all stakeholders must undertake much-needed reform of the regular criminal justice system to make it more effective, expeditious and fair.

Military courts were first empowered to try civilians for certain terrorist-related offences in January 2015 through the 21st Amendment to the Constitution and amendments to the Pakistan Army Act, 1952, which were in operation for a period of two years. The expansion of the jurisdiction of military tribunals was a key part of the government’s 20-point National Action Plan, adopted following the attack on the Army Public School in Peshawar in December 2014.

NAP envisioned military courts to be a short-term ‘solution’ to try ‘terrorists’, to be operational only for a two-year period during which the government would bring about necessary ‘reforms in criminal courts system to strengthen the anti-terrorism institutions’. Despite earlier promises that military courts were only temporary and ‘exceptional’, after the expiration of the 21st Amendment, on 31 March 2017, parliament enacted the 23rd Amendment and amendments to the Army Act to renew military courts’ jurisdiction over civilians.

The amendments were given retrospective effect from 7 January 2017 and were due to lapse two years after their date of ‘commencement’. According to the law ministry, the expanded jurisdiction of military courts will expire on 30 March 2019 (even though earlier reports suggested the amendments would expire on 6 January — two years after the date of ‘operation’ of the 23rd Amendment).

Now, with less than three months left before the amendments lapse, it is no surprise that comprehensive reform of the criminal justice system has not even started, let alone been completed. In the four years, they have been in operation, military courts have convicted 617 people for terrorism-related offences, out of which 346 people have been sentenced to death and 271 people have been given prison sentences. At least 56 people have been hanged. Only four have been acquitted.

Military courts have targeted the Constitution’s fundamental principles: separation of powers, independence of the judiciary, and protection of fundamental rights. In every case where information is available, accused persons were denied the right to counsel of choice; they were denied a public hearing; they were denied the right to appeal before a civilian court; and nearly 98 per cent of convictions were based on ‘confessions’ obtained without adequate safeguards against torture or other ill-treatment.

The security apparatus also failed to disclose the exact charges against the accused or provide convicts copies of judgement with evidence and reasons for the verdict. Another striking feature is these courts link with ‘missing persons’. In a recent judgement, the Peshawar High Court set aside the convictions of over 70 people who were tried by military courts on various terrorism-related charges.

Significantly, the high court also highlighted the link between enforced disappearances and proceedings before military courts. It described how a number of accused were picked up by security authorities as far back as 2009 and kept in secret detention for many years before their military trials. Even when questioned by the courts, state agencies kept denying any knowledge of their whereabouts, until their names appeared in their press statements about people convicted and sentenced to death.

The court indicated that in many cases, the proceedings appeared to have been a way of giving “legal cover” to the practice of enforced disappearances and secret detentions. The high court ordered the release of the convicts after finding that there was effectively no evidence against them. As the judgment illustrates, parliament’s decision in the past to allow military courts to try civilians in opaque proceedings — which was later endorsed by the Supreme Court — is a glaring surrender of fundamental freedoms.

Yet, our political leadership is not only silent about the injustices, the government has initiated the process to extend their term again. The possible extension of the ‘temporary’ and ‘exceptional’ use of military courts to try civilian terrorism is yet another example of the state’s resort to ‘exceptionalism’ to justify a knee-jerk response to terrorism.

A global study of the International Commission of Jurists from 2009 on state responses to security threats examined in detail the dangers of the ‘exceptionalism doctrine’, which justifies a departure from the normal legal processes and human rights protections on the basis of the ‘exceptional’ character of the threat. In time, many of these measures became permanently incorporated into ordinary law, blinding governments to the actual reasons behind the lack of accountability for terrorism and serious crime. The rationale for constituting (and later extending) military courts was stated to be an ‘extraordinary situation’ that demanded ‘special measures for speedy trial’. The same justification was given for the Protection of Pakistan Act, passed in July 2014 (which has since lapsed), as well as the AntiTerrorism Act (ATA), 1997.

The ATA, which promised ‘speedy justice’ at the cost of some basic fair trial rights, progressively displaced the regular criminal justice system, with cases of ordinary murder, robbery, kidnapping and rape regularly being tried by special antiterrorism courts constituted under the act. Slowly, the ‘exception’ became the norm, and the weaknesses in the operation of the regular criminal justice system remained unresolved.

Now that the time has come for military courts’ already extended jurisdiction to expire, attempts to renew their mandate must be resisted. Extending their jurisdiction once again 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.