Why Military Tribunals Will Skew the Scales of Justice in Pakistan

24 February 2015
A Pakistani policeman standing guard at the Parliament House building in Islamabad as legislators voted for an amendment in the constitution that protected the establishment of military courts.

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.

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.