Military Courts in Pakistan: A Soft Coup by the Pakistan Army?

In the immediate aftermath of the Peshawar carnage, Pakistan’s National Assembly and Senate approved the 21st Constitutional Amendment on 8 January 2015. This paved the way for the establishment of Military Courts with the responsibility of ensuring the speedy trial of ‘hard core terrorists’. Although the amendment was passed by an overwhelming majority, a fairly large number of members in both the houses abstained. In the Senate, of the 114 members, 78 voted in favour and 36 abstained; similarly in the National Assembly, 218 out of 342 members voted in favour and 124 abstained. This clearly points to the underlying political opposition.

It is apparent that the military, in connivance with an embattled Nawaz Sharif, has pushed through the constitutional amendment which will have serious implications for the rule of law and the democratic fibre of Pakistan. Not only have the civil society and human right organizations come out strongly against this move, the two important mainstream parties – Pakistan Peoples’ Party (PPP) and Tehrik-i-Insaf Party (TIP) – have openly condemned the measure. Bilawal Bhutto tweeted his opposition to both the military courts and capital punishment. For its part, Imran Khan’s TIP, although it has otherwise adopted a soft stand towards Islamists and militants, has not been forthcoming in its support for the amendment either. The TIP’s abstention is particularly relevant since the carnage of school children took place in Peshawar, the capital of Khyber Pakhtunkhwa province, where it runs the government.

Why Military Courts?

Why is the Pakistan military pushing for these courts when the country already has a fairly robust “Anti Terrorism Act” together with designated Anti Terrorism Courts? The latter were specifically set up to try terrorism related offences, although they have failed to provide the desired speedy justice. Two reasons are offered for their poor track record: One, intimidation by radical organizations has either prevented judges from giving judgments against terrorists or simply slowed down the legal process; Two, there is a lack of admissible evidence primarily because people are scared of retribution and do not therefore come forward to give evidence. Under these circumstances, the obvious way forward was to address these issues by providing protection to both judges and witnesses and adopting other associated legal measures. Instead, what we are witnessing is a circumvention of the due process of law and a mockery of constitutional provisions for the sake of political expediency.

There is widespread perception within Pakistan that the situation the country finds itself in today is largely of its own making, as terrorism is a creation of the Army. The Army has been largely instrumental in supplying arms and equipment to state-sponsored terrorists, be it in Khyber Pakhtunkhwa, Southern Punjab, Sindh or Balochistan. The Army has for long been harbouring terrorists and radicals. It has been using terrorist organizations such as the Lashkar-e-Taiba and Jaish-e-Mohammad as strategic assets against India, and the Taliban and the Haqqani network as pawns in its strategy of acquiring strategic depth in Afghanistan. Under the circumstances, the establishment of military courts would mean allowing the sponsors of terrorism to become both the judge and the jury in punishing only those terrorists who refuse to play ball with the Army in its game of terror.

Some retired senior military officers, however, refute the above perspective by attempting to paint the Pakistan Army Chief General Raheel Sharif as a simple, straightforward, soldier who is against the policy of the selective use of terrorism as state policy. They regard his call for making no distinction between moderate and hard-core terrorists, as also the fact that he forced the Nawaz Sharif Government into supporting Operation “Zarb-e-Azab” in North Waziristan, as evidence of his sincerity in this regard. However, the Army’s claim that 1800 militants have been killed or wounded and nearly 200 tons of IED seized during this operation has been received with disbelief and refuted by many American and Western observers. According to the latter, cross border attacks from Pakistan into Afghanistan continue despite a high level dialogue and understanding with the new Afghan leadership.

Undoubtedly, the attack on the Army Public School in Peshawar has been a major setback for the Pakistan Army. The fact that nearly 40 per cent of the children killed were those of JCOs and NCOs has had a serious impact on the military leadership and its morale. Yet another factor that has necessitated the adoption of a tough stand by the Army is the growing radicalization not only among the rank and file but also among senior officers. Reasoned voices within the Army, it is learnt, believe that unless the radical elements are contained, a serious situation might ensue involving danger to the security of strategic weapons.

The Ramifications

A fundamental issue that the establishment of military courts raises is this: is it a soft coup by the Pakistan Army or is it a genuine effort to curb terrorism? Although it is too early to conclude either way, going down this path has serious ramifications. As noted above, Pakistan already has Anti Terrorism Courts. The creation of the specific institution of Military Courts now would imply the following:

• The judiciary is untrustworthy in the eyes of both the civilian and military establishment.
• In the battle for supremacy, the military is the clear winner, with Parliament reduced to a mere rubber stamp for the demands of the military establishment.
• A clear message to the people that the civilian leadership is incapable of providing strategic direction or addressing the core internal security interests, thereby questioning the democratic edifice of the state. In a sense, this implies a soft coup by the military and the subordination of the political leadership.
• These courts could be used to effectively stifle the voices of freedom and dissent in Sindh and Balochistan. There is every likelihood of a backlash in the region were such courts to be used to victimize pro-freedom organisations such as the Balochistan Liberation Army.

Problems with Military Courts

The main issue revolves around the necessity of military-run courts in Pakistan, a country which at best lives on the margins of democracy, and their implications. The rule of law and protection of citizen’s rights are likely to get compromised with the functioning of Military Courts.

A fundamental issue that the Military Courts will have to decide upon is the definition of a ‘hard-core terrorist’ and the criteria employed to determine this category. This will define the actual motive of the Army in pushing through the establishment of Military Courts. Second, there is the issue of legal protection to the defendant. The Pakistan Supreme Court’s ruling of the non-violability of individual fundamental rights has been partially responsible for forcing the current constitutional amendment. Questions are also being raised about the experience in jurisprudence of Army Officers and the Judge Advocate General (JAG) branch for dealing with such cases. Third is the nature of evidence and its admissibility. In case the ruling of Military Courts is unchallengeable in higher courts, as is the case with the opinions or directions of the JAG Branch, then these courts would become Kangaroo courts. This was recently witnessed in the execution of terror suspects even when their appeals were pending.

From an Indian perspective, the Pakistan military overriding the civilian leadership is a disquieting development that will make dialogue and discourse even more difficult. As we have seen in recent months, Pakistan’s agenda vis-a-vis India is fully guided by the military with the civilian leadership clearly acceding to the Army’s directions, be it firing along the Line of Control and International Border, bail to Hafiz Saeed, or the issue of resumption of dialogue. In the obtaining scenario, two things could happen: Pakistan escalates the border stand-off against India or perpetrates a major terror strike in Indian territory. In such a scenario, India may be compelled to lift its self-imposed restraint and respond militarily, thus unleashing an action-reaction cycle.

The growing salience of the Pakistan military in that country’s politics without any restraint and responsibility is a serious development. India needs to watch developments in Pakistan very closely as the drama of Military Courts unfolds and the Pakistan Army strengthens its control over the state apparatus. At the same time, India must work with countries like the United States, China and Russia to prevent Pakistan from going down the military rule route and restore civilian political control.

Views expressed are of the author and do not necessarily reflect the views of the IDSA or of the Government of India