Authors: Tajjalla Munir and Fatima Ahmed*

Abstract: Pakistan has remained a victim of terrorism for the last two decades. As a frontline state in this United States-led war against terrorism, it has suffered a lot. In the last two decades, thousands of people were killed including civilians and personnel of security forces in this bloody war against terrorism. In 2015, after the Peshawar School massacre, Pakistan adopted a comprehensive strategy to eliminate terrorism from its soil that was named the National Action Plan (NAP). Some ambitious measures were added in this National Action Plan including the establishment of military courts. These military courts were special courts to prosecute people who are involved in major terror incidents in Pakistan. It is an undebated fact that Pakistan was targeted by massive terrorist attacks and it required special measures to deal with this menace of terrorism. Still, these military courts were criticized by different domestic and international institutions because they considered the procedures adopted by military courts against basic human rights. Given the amount of success Pakistan got in the last five years in reducing terrorism, the role of military courts could never be undermined.

This paper will analyze the legal procedure adopted by the military courts. It will also analyze the role of military courts in the counter-terrorism efforts of Pakistan.

Terrorism and the Need for a Comprehensive Counter terrorism strategy in Pakistan

Terrorism in Pakistan is not a new phenomenon. It is facing continuous terrorist attacks for the last two years. It all started when on September 11, 2011, the United States was targeted by terrorists and in response, the US started a global war on terror by attacking Afghanistan Pakistan due to its proximity to Afghanistan played the role of the front-line state in this war against terrorism. Pakistan was awarded the title of “Major non- NATO ally’ but it resulted in a long bloody insurgency in the tribal areas of Pakistan. This tribal belt has porous and a long border with Afghanistan. Militancy in the tribal area invited military operation from security forces and the result was the horrifying suicide attacks in different cities. In those years Pakistan did not have a comprehensive strategy to counter those terrorists on all fronts. While military operations were successful to some extent but because of the flaws in the judicial system in Pakistan terrorists were set free by the courts. It created a dilemma for civilian institutions that were not well prepared enough to deal with this menace of terrorism.

In 2014 Pakistan army launched a massive scale operation “Zarb e Azb” to eradicate this menace of terrorism once and for all. While the Army got some success in the operation, terrorists responded by targeting relatively softer targets. On December 16, 2014, a group of terrorists massacred more than 100 school children in the northern city of Peshawar. This attack traumatized not only the Pakistani nation but the international community was also vigilant in condemning this vicious attack After the Peshawar school attack, the Government of Pakistan adopted a comprehensive strategy to eliminate terrorism from its roots. It was named as National Action Plan (NAP).NAP is a 20 point formula, which clearly outlines how the war against terrorism will be conducted. Its second point is about establishing military courts because many terrorists were not punished by civilian courts due to several reasons.

National Action Plan and The establishment of military courts

When the National action plan was adopted and the idea of military courts was floated in 2014, the overall ratio of the terrorist attack in Pakistan was in an upward trajectory. Pakistan was at number 3 among the countries which faced the majority of terrorist attacks in the world. From 2012 to 2014 Pakistan saw a 37% increase in terms of casualties with terrorist-related incidents (2014) Around fifty thousand civilians and five thousand persons belonging to security forces were also killed from 2001 to 2014. Besides this loss of life, Pakistan also lost US $106.98 directly or indirectly in the first 14 years in this war against terrorism. But these terrorists were not getting due punishment from the courts. Many times terrorist leaders were acquitted by the courts. In the wake of military operations after which Hundreds of high profile terrorists were arrested, the judicial system was not equipped enough to prosecute these terrorists. These cases remained persistent for a longer period without any logical reason and even some time terrorists were acquitted by the courts.

 The Constituent Assembly of Pakistan adopted the 21^st constitutional amendment and amendment in the Pakistan Army Act for the establishment of military courts. Under these amendments now civilians will also be tried in military courts if they are found guilty of perpetrating terrorist attacks in Pakistan. Initially, these military courts were established for two years term but later their tenure was extended. These military courts were established to try “Jet Black terrorist”. This term refers to hardcore terrorists who were part of terrorist activities in Pakistan. While talking on this occasion Prime Minister of Pakistan Mian Muhammad Nawaz Sharif said that “This bill is about military courts trying hardcore terrorists who kill Pakistanis. This is an important day for Pakistan when the nation decided that terrorists will be taken out from the roots,”. He further elaborated that these courts were established under the National Action Plan and that these courts are created for extraordinary cases of terrorism. In another place, he said that “I don’t think people who slaughter others deserve any sympathy,”. In August 2015, in its landmark, the decision of the supreme court of Pakistan also validated the establishment of military courts by the Government. But it maintained that the right to appeal against the decision of special courts is still present and it can be used by any person sentenced by special military courts. Jurisdiction of the apex court is applicable not only to the verdict of the case by military courts but it is also applicable to the decision of the civilian government to refer a case to a military court. It was the beginning of a new era when hardcore terrorists will be tried in military courts with full constitutional and moral support from the civilian government.

The first two years remain important in deciding the fate of terrorists by military courts. A total of 274 terrorists were convicted by the military courts. Out of these 274,161 were given death sentences while 113 were sent to imprisonment for different tenures. In 2017, the duration of the military courts expired. The parliament passed the 28th Amendment to prolong the tenure of the military courts for two more years. The parliament approved the28th amendment on 30^th March 2017, so accordingly the tenure of the military courts will terminate on 30^th March 2019. The prelude of the amendment recapitulated that the extension to the military courts was in the national interest of the country.

Role of Civilian Legal System in Fight against Terrorism

Since 9/11 Security force has conducted many operations against terrorist groups not only in tribal areas but also in other parts of the country. Dozens of terrorists were arrested during these operations and a large swathe of the territory was recaptured from terrorists. But the future of those terrorists, apprehended by the security forces, was uncertain because the criminal justice system in Pakistan had many problems. Many of those apprehended by security forces were not convicted by the courts. Anti-terrorism Act (ATA) of 1997, is a basic tool which is used in Pakistan to convict terrorist due to their inhuman activities. Under this ATA, especial Anti-terrorism courts are established. But these courts are not effective in giving terrorists due punishment. In 2014, there were 17000 cases present in different anti-terrorism courts. From 2007 to 2014(after which NAP was formed) Anti-Terrorism courts acquitted 2000 people who were accused of carrying out terrorist activities. Among these 2000, some high profile terrorists were also present. It is believed that many of them again became part of banned groups According to a report, 60% of the terrorist who is acquitted by the courts are again involved in criminal activities and more than 700 have joined terrorist networks.In Khyber Pakhtunkhwa which faced the majority of terrorist attacks, the conviction rate was only four percent.

Many high profile terrorists were also released by the courts. Among them was Malik Ishaq, chief of the notorious Lashkar e Jhangvi group (Lej). Lej is a banned terrorist organization not only in Pakistan but it is also designated as a terrorist organization by the United Stat. Ishaq himself is accused of killing more than 100 people and he is on the list of “most wanted terrorists “by the United States. Recently Ahmed Omar Saeed Sheikh was acquitted by the High court of Sindh province. Ahmed Omar Saeed, who was involved in the murder of Daniel Pearl, a journalist of the wall street journal, was sentenced to death in 2002. The decision to acquit Ahmed Omar Saeed invited international condemnation including from the United States, though Pakistan authorities have detained him with 03 others, that they might again get involved in terrorist activities. Authorities have also promised to appeal in the higher court against the acquittal

Terrorism exposed problems in the judicial system of Pakistan. Before the 9/11 attacks, Pakistan never faced massive-scale terrorism. Therefore there was no mechanism to deal with this new kind of threat. But with the sudden terrorist onslaught, it was exposed to a challenge that was maybe bigger than its foundation. But this problem in the judicial system of Pakistan is not due to one reason. The courts and the prosecution system overall is facing many challenges. The fundamental problem is with the Anti-terrorism Law of 1997 and its vague interpretation even the term terrorism is not defined clearly. The police department has to decide whether an offense falls under the category of ATA. Moreover, when the police department makes a case an accused it is not well equipped to better follow the legal procedure which sometimes benefits the terrorist.ATA was enacted in 1997 as a tool to curb sectarian militancy which was somehow an indigenous phenomenon. People who are involved in this type of militancy do not fight against state institutions but they are more focused and limited in their scope. But 9/11 and the subsequent war against terrorism have significantly changed the overall picture. Now terrorists are well equipped and they have links with transnational groups and last not least they have denounced the basic structure of states. States’ structure is facing threats from these terrorist groups. Therefore the scope of these events is much bigger than what was envisioned in the anti-terrorism law of 1997 which was formed to deal with small-scale terrorist groups.

 Police are also not well equipped to use scientific means to investigate a case. Mostly they rely on old traditional methods, and terrorists with knowledge of modern technologies overcome these methods easily. Courts are also traditionalists in the sense that they do not consider modern technological tools as evidence in any case. So the ATCs are relying heavily on eyewitnesses for judgment of the cases. But in terrorism-related cases, the majority of the time eyewitnesses are personnel of security forces only and even if there is eyewitness it will never come to court because of the threat posed by terrorist groups. Lack of witness protection measures is adding to the problems. In ATCs courts, cases continue for many years without any result. Among some common problems in the judicial system of Pakistan, one is corruption and political interference. Judges in the lower courts are bribed or sometimes they face pressure from individuals and political parties.

Last but not the least, the most fearsome part of this is that Lawyers and judges are themselves victims of these powerful terrorist groups. Many times they are threatened by terrorist groups for serious consequences if they convict any member of their groups. Terrorists have also targeted many times the Courts and Lawyers. A judicial complex was targeted in the capital city of Islamabad in March 2014. At least eleven people were killed, including lawyers and a judge. In another unfortunate event, a suicide bomber exploded himself in a court in the Mardan district in Khyber Pakhtunkhwa province and many people were killed also including Lawyers. The most tragic incident in this regard occurred in August 2016 in the western city of Quetta where a suicide attack on a gathering of lawyers left at least 70 lawyers dead. After this horrifying incident, even the local people of Quetta were unable to find a person who can represent them in court. It created a shortage of Lawyers in Baluchistan province.

The success of Pakistan in War against Terrorism and the Importance of Military courts

Many countries in the world have also put into place military courts to tackle extraordinary situations. Pakistan, once labeled as the home of terrorism, made unprecedented success in fighting against terrorism. The setting up of the military courts with its judicial framework has reinforced the efforts done in curbing terrorism under the umbrella of the National Action plan. Their establishment is not something that is not done by other states. Special circumstances require special measures to deal with them.

The most prominent example in this regard is the United States (US). The global war against terror started in 2001 under the supervision of the US. The United that had a very effective civilian justice system established a military commission to try terrorists who are arrested during its global war on terror. These commissions were established during President Bush’s regime when the United States launched its war on terror in the wake of the 9/11 attacks. Security could even use torture to integrate the suspected terrorist. It was done even when law enforcement agencies had a special power in the United States in their counter-terrorism efforts. They can detain and arrest anyone who they assume could be involved in terrorist activity. These were kind of proactive measures taken by the government in which anyone could be detained without charges. Even with these special measures, ordinary criminal courts were not allowed to hear special cases of terrorism. Because this could undermine the national security of the United States. Moreover, it endangers the lives of the witness, prosecutor, and other people who are involved in this judicial system. When President Obama took office as president of the United States, even he did not abolish the military commission, though the techniques to interrogate terrorists were changed.

Military courts in Pakistan were established in 2015 for two years but their tenure was extended by the government in 2017, giving them two extra years to conclude all the cases to a logical end. In January 2019, while talking to the media spokesperson of the Pakistan Army Major General Asif Ghafoor said that the Interior Ministry had referred a total of 717 cases to military courts. Of these 717, cases 645 are solved by the military courts (M. Desk 2019). International Commission of Jurist (ICJ) also provided almost similar data. According to ICJ, a total of 646 cases are resolved and the told number of cases before military courts was 717.345 terrorists were awarded capital punishment while the other 296 were given imprisonment and five accused were acquitted by the military courts. These statistics were provided just one month before the end of the second term of the military courts. The ex-Chief of Army Staff, Raheel Sharif reiterated that the military courts have sped up the war on terror to success. According to him, these courts were “need of the hour”. Chaudhry Nisar, who was the federal interior minister, also echoed the same thoughts about the courts. He also expressed that these courts were needed to deliver justice at that time. The second extension period of military courts ended on 30^th March 2019.  The PTI government could not gather the support of the Opposition parties for the third extension of the military courts. The military courts ceased to function in March 2019.

Despite the reservations of the Human Rights activists and organizations, it is apparent that the military courts have played a crucial role in curbing terrorism in Pakistan. Military courts have been successful due to their capacity to deliver speedy justice to the hardcore terrorists. Moreover, they were also following a proper mechanism that was given to them by the federal government through constitutional amendments. They were not blind courts in which anyone could be punished without proper evidence. Under this proper legal mechanism, military courts were playing an effective role in this fight against terrorism. Many evidence could be given in support of this argument.

 Firstly and the most important in this regard is that the decisions enacted by the military courts can be challenged in high courts. This shows that these courts are under the supervision of the civil judiciary. Recently, the Peshawar High Court has freed 200 militants who were convicted by the Military courts. In 2018, Peshawar High Court had acquitted 70 people convicted by the military courts. Secondly, the trial process and the people involved in the trial are provided with military security. Unlike the civilian courts where the lives of the Judges, lawyers, and witnesses are not safe and they are threatened by the aides of the terrorists, the military courts hold their hearing behind closed doors under secrecy ensuring the safety of everyone. Thirdly, these courts do not take random cases for trial, they only try the terrorists handed to them by the provinces. In 2015, 1350 cases were sent to the military courts by the provinces. Fourthly, these all aspects enhance the capacity of these courts to carry out swift justice to the elements which have terrorized the masses. In this way, it has set precedent for perpetrators and thus terrorism has reduced considerably since 2015. The decisions of these courts against the hardcore terrorists have helped to fracture the patronage they were giving to terrorist organizations.

These arguments are supported by the fact that there is a massive decline in terrorism-related incidents in Pakistan. In the last decade, Terrorism decreased by 85%.2012 was a peak year in which 2732 people were killed by a terrorist attack. Even in 2014, the total number of casualties was 1476 but in 2019 these numbers reduced to 142. There was a 30.71% reduction in the victims of terrorism in 2019. The provinces also observed a decline in the deaths caused by terrorism. Baluchistan witnessed a reduction of 44.2%, former FATA region observed a 33% decline. Sindh saw a decrease of 19% in the casualties and Punjab observed 11% respectively. This is the result of the efforts of the security forces and especially the success of the National Action plan that was implemented in 2015. This is a huge success considering the ratio that Pakistan faced in the last two decades.

* Tajjalla Munir &Fatima Ahmed are Research Scholar of MS International Relations at COMSATS University Islamabad.