Does military courts as a preferred policy provide a potential solution to terrorism issues in Pakistan? The way a problem is defined shapes the search for available solutions. Any inadequate or faulty diagnosis may result in a fatal error. To produce desired results may require creativity, insight and the use of tacit knowledge. The value or utility of military courts needs further elaboration. The preferred fact that only military courts can act as a deterrent to acts of terrorism in Pakistan more efficiently than reforms in criminal justice system or Anti Terrorism Act do not justify the selection of military courts as a preferred policy.
Looking at the context, the incident of December 16 in Peshawar is described as one of the saddest moment in the history of Pakistan where more than 130 innocent students were ruthlessly killed by militants belonging to Tehrik-e-Taliban Pakistan (TTP). The incident plunged Pakistan into deep mourning and in a state of shock. Though the incident was horrible but it was not the only incident recently. In September 2013, 189 people were killed and over 393 got injured at three different incidents in Peshawar including twin suicide bomb attack at All Saints Church, a car bomb at Qissa Khwani Bazaar and bus bomb targeting government employees. All Saints Church attack was the deadliest attack on a minority sect in Pakistan’s history killing 127 people and injuring more than 250.
Similarly according to FATA Research Centre(FRC), a think tank based in Islamabad, in the year of 2012 and 2013, 6,924 casualties were reported in different terrorism related incidents from all agencies of Federally Administered Tribal Areas (FATA). During the past one decade more than 2000 elders were targeted and killed all across FATA according to FRC. Overall Pakistan has lost more than 50,000 lives since the apocalyptic attacks on World Trade Center and Pentagon in the United States on September 11, 2001.
The Peshawar incident brought the civil and military leadership to take some quick responses. The army chief and the head of the ISI visited Afghanistan soon after the Peshawar incident and briefed the Afghan civil and military leadership of the intelligence reports pertaining to the involvement of TTP leadership who were operating and directly supervising the brutal operations in Pakistan from Afghan soil. Prime minister ended the six year moratorium on death penalty on terrorism related cases and convened an all parties conference on December 24th 2014, which reached a national consensus on combating terrorism in all forms and its manifestations. Government on military behest tabled the Constitution (Twenty First Amendment ) Bill and the Pakistan Army (Amendment) to the National Assembly(NA) which is also exempted from scrutiny by a house standing committee paving the way to senate as soon as it is passed from NA.
The environment seems quite encouraging however since the military has historically been very influential in matters of internal and external security, a two prong strategy will pave the way for taking this resolve of ending terrorism from Pakistan to its logical conclusion. The first prong of the strategy relates to military while the second prong needs to be taken care by the civilian government. However, their mutual coordination and cooperation is must.
As for the first prong, operation Zarb-e-azab continues in North Waziristan Agency while repatriation of more than 100,000 families will start to Bara tehsil of Khyber agency in a week’s time as the army has cleared the areas. Once the areas have been cleared, army should ensure that the financing of terror groups, the weapon delivery, and the sources for human supply have been taken care off. Merely ousting terrorist groups from one area into others is not the long term solution. Secondly , as per the media reports thousands of terrorist have been killed in military operations and air strikes in the past one decade however the intensity of terrorist attacks on civilians across Pakistan has remained. Army need to make sure that not only foot soldiers are killed but most importantly the middle and top level leadership is also apprehended. Killing thousands of foot soldiers is no achievement if their leadership is not dismantled. It’s like plucking the leaves of a tree; you keep plucking it and they will grow unless you take the root out. Thirdly, both military and civilian government needs to come up with a strategy to win the hearts and minds of tribesmen. This can only be done through their engagement at various levels in socio-economic projects. Fourthly, military need to clarify the position of militant groups that has peace agreements with Pakistan Army in FATA but who are not a threat to Pakistan and are alleged to carry out attacks or facilitate attacks against targets in Afghanistan. Then the policy over militant groups active in Kashmir like Jamat-ud-Dawa, or Lashkar Taiba and sectarian militant organization like Lashkar Jhangvi also needs to be clarified.
With all this, the burden of responsibility lies with the political leadership which is the second prong of the strategy. The Prime Minister Nawaz Sharif should put all his efforts and energy in building not only consensus but bringing reforms in legal and judicial fronts through both the houses. It is an irony that the conviction rate in terrorism related cases is below five percent and the antiterrorism laws have failed to act as deterrent against terrorist acts. Setting up of military courts is not a long-term solution. The other way around would be to fill the vacancies of the anti terrorist courts on priority basis. Separate the trial of terrorism and sectarian offences from heinous offences. The role of the presiding officer in an anti terrorist court needs to be enhanced so that speedy trials are done and an investigation officer and prosecuting lawyer is punished for defective investigation and prosecution respectively. This will greatly help in acting as deterrent for defective investigation and prosecution. The PM should focus on development of new tools and facilities e.g forensic evidence facilities, electronic or modern technological means of evidence need to be developed for effective prosecution of terrorist and sectarian cases. There is also a need to re-examine the notion of benefit of doubt in terrorism and sectarian related cases. The recent bail acceptance of Zaki ur Rehman Lakhvi in Mumbai case is an example of this .The government should also focus on Pre-Trial/Preventive Detention. There is a dire need to develop legal regimes in order to legalize long term pre-trial detention, or preventive detention, of suspected terrorist suspects without trial. The action in aid of civil power regulation in FATA is counterproductive. It is of high importance that new legal regimes and frameworks of pre-trial detention, or preventive detention, without trial, which are in accordance with our Constitutional framework as well as which provide mechanisms of checks and balances, should be seriously looked into. Protection of Judges, Counsel, Public Prosecutor, Witnesses and persons concerned with Court proceedings is another area that the government should look into. Finally Creation of Judicial Task Force on the reform and effective implementation of the Anti-Terrorism Act would be the right course of action for the government. Unless there is a right direction no measures will bring fruit.
The writer is a PhD student of Government and Public Policy at National Defence University Islamabad currently based in Calgary, Canada.
