Islamabad, Pakistan - Pakistan's decision to authorise military courts to try terrorism suspects has raised a slew of questions from rights activists and lawyers about their ability to deliver fair trials, and the implications of such a move in a country that has spent more than three decades under military rule.
In the wake of last month's attack on a Peshawar school that killed 149 people, mostly students, Pakistan's president on Wednesday signed into effect a constitutional amendment allowing military courts to try those suspected of terrorism, as part of a raft of legal changes to the way the state deals with terrorism.
|- Raise arms or wage war against Pakistan, or attack the Armed Forces of Pakistan or law enforcement agencies, or attack any civil or military installations in Pakistan.
- Abduct any person for ransom, or cause death of any person or injury.
- Possess, store, fabricate or transport explosives, ... firearms, suicide jackets.
- Use or design vehicles for terrorist acts.
- Provide or receive funding from any foreign or local source for the illegal activities under this clause.
- Act to overawe the state or any section of the public or sect or religious minority.
- Create terror or insecurity in Pakistan or attempt to commit any of the said acts within or outside Pakistan.
The amendment removes the right to a trial by civilian courts for those suspected of terrorist acts, and exempts referrals to military courts from having to fulfil citizen's fundamental rights as described in the constitution.
An accompanying amendment to the Army Act extends the military's remit to try civilian suspects who are members of religious "terrorist groups" for crimes including, but not limited to: raising arms against the state; murder; creating terror or insecurity; possessing and using explosives, including suicide jackets; kidnapping for ransom; and receiving funding for such purposes.
The amendment cites "extraordinary … circumstances" as currently existing in Pakistan, which "demand special measures for speedy trial of certain offences relating to terrorism".
While there was some debate regarding the move, especially from political parties who have been ousted by military coups in the past, the measure passed by a resounding 247-0 in the National Assembly, and 78-0 in the Senate, with the JUI-F and Pakistan Tehreek-e-Insaf (PTI) parties abstaining from voting.
The move had been pushed by Prime Minister Nawaz Sharif, who heads the government and has led political consultations on amending Pakistan's approach to fighting terrorism since the attack on the Peshawar school. His government also recently authorised the lifting of a moratorium on executions of those convicted of terrorism.
The formation of military courts "would lead to quick dispensation of justice and help the country eliminate the scourge of terrorism", Sharif said on Thursday, adding it was time for "decisive steps ... to end [terrorism] once and for all".
Lowering conviction threshold
It remains unclear, however, how such courts will be structured, and the process by which the civilian government would transfer cases to military jurisdiction.
"[Military courts] do not follow the same laws of procedures and laws of evidence as civilian courts," said Salman Raja, a senior lawyer at Pakistan's Supreme Court, explaining the threshold for what constitutes evidence of guilt in military courts is lower than in civilian courts, and occurs at the discretion of the officers presiding over the court martial.
"They want military courts because they want to be able to convict even if there is little evidence. That really, at the end of the day, seems to be the motivation, because they feel that the kind of evidence required [by civilian courts] will not be available," he said.
Moreover, the decisions of such courts cannot be challenged in civilian courts, according to the Army Act.
Ahmed Bilal Mehboob, president of the Pakistan Institute of Legislative Development and Transparency (PILDAT), agreed with the assessment that the object of the amendment appears to be to lower the threshold for convictions.
"So much will be at the discretion of the judges. I think judges will be more inclined to convict than to let people go free. I think the whole standard will go through a drastic change. That's why these courts were established," he told Al Jazeera.
Mehboob, whose organisation works closely with parliamentarians to foster legislative debate and openness, said the passage of the bill was marked by political debate, but no actual information establishing the need for the military to replace civilian courts.
"We were hoping that the evidence would be presented in parliament... We were hoping that there would be a debate in the parliament, and that many of our questions would be answered, but unfortunately the process of passing this law was even more disappointing than the law itself, because there was no debate on it," he said.
Civilian courts 'a failure'
At the same time, Pakistan's civilian court system can hardly be termed efficient. Overburdened with cases and prone to corruption, cases often drag on for years, with conviction rates hovering between 5 and 10 percent. Rights groups have also raised questions regarding whether these courts meet international fair trial standards.
"Even in ordinary times our civilian courts have proven to be a failure," Mehboob said.
"Courts and judges are not sufficient in number, and the prosecution has been incompetent and politically affected, with the result that getting justice has become almost impossible. It's inefficient, expensive and corrupt."
Pakistan's judicial system already provides for terrorism cases to be tried in separate courts, termed Anti-Terrorism Courts (ATCs), where judges are under orders to provide decisions quicker than in regular trials. But such courts have quickly become clogged with cases not related to terrorism, such as murder, drug trafficking, and even kidnapping for ransom. At present, there are about 17,000 cases under trial in Pakistan's ATCs. According to the Supreme Court, as many as 85 percent of those cases are not terrorism-related.
Criminal cases in Pakistan, legal analysts say, are generally marred by a lack of sufficient evidence and incompetence on the part of the investigators. It is unclear whether those structural problems will be addressed by having military courts, Mehboob said.
"Is it only the judges who are the problem? OK, you'll have a military man as a judge, but how about the prosecutors, or the police ... will they all be replaced by military personnel?" he asked.
Violating separation of powers
For a country that has been ruled by the military for more than half of its existence, the move to accept the apparent superiority of military courts over civilian systems of justice does not just violate the separation of powers in Pakistan's constitution, it goes much further, Mehboob said.
"We are accepting the principle that the military is able to perform better than the civilians. This has far reaching implications not just for the judiciary but also for the investigative branches, prosecution, and the question of basic core functions of the police. And the next question will be are our democratically elected political leaders, are they performing, or maybe a military person can do that better too?"
Live Box 2014121617103766311
Zohra Yusuf, the chairperson of the Human Rights Commission of Pakistan (HRCP), said the only way forward is through amending civilian courts, not transferring cases to the military.
"HRCP believes that the need instead is to reform and strengthen the system of investigation and prosecution. Reforms should include more scientific methods of investigation, rather than torture and coercion, as well as witness protection programmes and better security for lawyers, judges and witnesses," she said in a statement, while expressing "serious alarm" at the decision to try civilians in military courts.
"It is feared that political dissidents, particularly in Balochistan and Sindh, could become the targets of military courts," she said, referring to how Pakistan's existing anti-terrorism laws have been used against such dissidents in the past.
For its part, the government has repeatedly assured the public that the process for referring terrorism cases to military courts will be transparent.
"The interior ministry will confer with the civilian and military leadership to make the process clear for military courts," said Adeel Sattar, an interior ministry spokesperson, on Thursday. "Only terrorism-related cases, as decided per established guidelines, will be referred to these courts."
The amendments to the constitution and Army Act carry a built-in "sunset clause" of two years, meaning they will cease to be in effect on January 7, 2017, but it is unclear whether, with no accompanying structural changes to Pakistan's civilian justice system, circumstances will have changed much by then, analysts told Al Jazeera.
"The whole core of the question is whether we are able to very quickly deal with this extraordinary situation and return to normal, and in the meantime improve the normal civilian institutions to the point where they can do justice?" Mehboob asked.
"At the end of two years, I am afraid we will be going back to parliament and seeking an extension to the life of these courts."
Follow Asad Hashim on Twitter: @AsadHashim