Countering Terrorism: Why Military Courts are Inevitable

Iftikhar Hussain Jazib

The establishment of Military Courts was a landmark event in Pakistan’s war against terrorism. But unfortunately, some selfish members of legal fraternity, foreseeing decline in their cases, challenged the legality of these courts in Supreme Court. In a historical verdict, the highest judicial forum of the country has dismissed all the petitions against Military Courts and now they are set to punish the worst enemies of Pakistan and its people. As this impediment was removed, COAS General Raheel Sharif has confirmed the death sentences of seven terrorists who were convicted by the Military Courts. However, a few lawyers and civil society members are still conducting negative propaganda against Military Courts for their vested interests. We must realize that Military Courts were established as a last resort because judicial system was paralyzed due to the onslaught of terrorists in the country.

Pakistan Army, Security Forces and Law Enforcement Agencies conduct operations with utmost care to avoid collateral damages. They try to apprehend terrorists rather than killing them in order to spare innocent and meet legal requirements to maintain law and order. Unfortunately, the arrested terrorists exploit lacunas in the laws and threaten judges and eyewitnesses and eventually walk free from courts. The irony of the fact is that less than 6% convictions take place in the trials of militants. In many instances, these terrorists rejoin their groups after acquittal from courts and appear in videos boasting about their role in the attacks while making the mockery of the law and security forces. These facts highlights the urgency of advance stringent laws to make counter terrorism operations a success. Existing laws are not sufficient to deal with militants, who are bent on destroying everything. The terrorist attacks, especially suicide bombings spare no traces like firearms, eyewitnesses and other circumstantial evidence admissible in the court under current laws. This situation makes the Military Courts inevitable for counter terrorism in Pakistan.

Modern terrorism has been an unprecedented phenomenon and many countries have taken extra-ordinary steps to cope with it. USA and European countries, despite their strong believe in democratic values, rule of law and human rights have made exceptional legal arrangements to deal with terrorists. America coined the term of ‘illegal combatants’ for the terrorists, who were captured during the ‘Operation Enduring Freedom’ in order to curb their rights as ‘Prisoners of War’ under Geneva Convention.  Going even a step ahead, US also arranged the infamous Guantanamo bay detention camp on lease from Cuba to keep Al-Qaeda and Taliban terrorists out of jurisdiction of US Supreme Court. The revelations made by Wikileaks and Edward Snowden have caused a lot of stir in America and Europe with regard to nationwide surveillance of citizens in these countries. However, the Governments of these countries are continuing their mass surveillance programs by justifying them in the name of tackling terrorists’ threats. Keeping these facts in view, if we compare the terrorists woes of US and its European allies with Pakistan, we find out that Pakistan have been suffering on much larger scale than America and Europe.

Pakistan has been inflicted by thousands of terrorist attacks of Al-Qaeda and Taliban. More than 55,000 citizens and 6000 security personnel have sacrificed their lives in the war against terrorism. Thousands of Pakistani families are traumatized and they are awaiting justice but unfortunately, militants are rarely punished by civilian courts. Generally, numerous debates are made on the deficiencies of the existing criminal code and anti-terror laws of Pakistan, criticizing that conviction of terrorists rarely takes place in conditions, where there is lack of evidences against an offender. Unsophisticated investigation techniques, outdated methods of collection of evidences and prosecution are main reasons of failure to deal with technically advance and sophisticated terrorists trained and aided by hostile agencies.

As it has been stated earlier, the Military Courts were established as a last resort because all the efforts to reform and update existing civil judicial and prosecution systems yielded no results. Acknowledging the legal deficiencies, Government enacted special laws to deal with terrorism-related cases to ensure that culprits involved in terrorism do not escape the law. During the last seven years, Anti-Terrorism Act 1997 and Protection of Pakistan Ordinance were reviewed repeatedly by the Parliament. The Anti-Terrorism (amendment) ordinance 2013, along with the investigation for Fair Trial Act regularised, legalised and made admissible in the court of law evidence collected by modern techniques, including audio and video recordings, still photography, documents, papers, emails, text messages and phone call records. These legislations empowered Government, armed forces and civil armed forces to issue orders for the preventive detention of persons involved in any offence related to the security of Pakistan, target killing, kidnapping for ransom and extortion. These amendments also proposed a mechanism for the protection of judges, witnesses and prosecutors. They also provided more effective techniques to Law Enforcement Agencies to investigate the terror offences. But unfortunately, allowing more types of evidence to become admissible in the courts, actually reduce the number of convictions even further as it increased the length and complexity of trials.

Above mentioned facts revealed that civil judicial system and laws cannot cope with terrorists’ despite government’s major efforts to make up their deficiencies in this regard. Only Pakistan Army has advance technical expertise in forensics to run the trials of modern terrorists. Moreover, recent killing of a judge in Rawalpindi by TTP has raised the issue of judges’ security once again. Only military courts can conduct trials of terrorists in a secure environment. Therefore, there should be no doubt that these courts are inevitable for countering the terrorism threat in the country.

Pakistan is passing through and dealing with special circumstances. These special circumstances demand special measures to handle the situation, including laws that support our existing but incompatible structures. Judiciary also needs support to handle these issues. It is not impingement on the authority of any institution rather a supportive mechanism as Army has rendered support and assistance to law enforcement agencies in FATA. Therefore as and when (by the end of 2 years), these powers / authority of military courts will automatically terminate.

The Military Courts are cornerstone of Pakistan’s legal victory on terrorists. Therefore, the negative propaganda against them must come to an end. We must strengthen our Security Forces by exhibiting strong resolve against terrorists on national level and National Action Plan is certainly a positive step in this direction. The hampering of its implementation by any means must be avoided as this will strengthen the hands of terrorists in deteriorating the law and order in the country.

The writer tweets @Radiant_J_007

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