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Asia

The civilian surrender - Pakistan reinstates military courts

After months of deliberation, Pakistani parliament has approved the extension of controversial military courts. Rights groups lambaste the courts as unconstitutional and see them as a consolidation of military power.

Pakistan's National Assembly (lower house of parliament) unanimously passed Tuesday the 28th Constitutional Amendment Bill to reinstate military courts in the country despite severe opposition from human rights groups.

The bill cites "an extraordinary situation and circumstances still exist that demand continuation of the special measures adopted for expeditious disposal of certain offenses" as the reasons to revive the controversial courts.

" ... [T]he Constitution (Twenty-first Amendment) Act, 2015 (I of 2015) was passed (with a sunset clause of two years) enabling trial under the Pakistan Army Act, 1952 for expeditious disposal of cases related to terrorism.

"These measures have yielded positive results in combating terrorism. It is, therefore, proposed to continue these special measures for a further period of two years through this Constitution Amendment Bill," reads the bill.

The Senate (upper house of parliament) has yet to approve the legislation, but as the ruling Muslim League party of Prime Minister Nawaz Sharif and the opposition Pakistan People's Party hold a majority in the Senate, the bill is most likely to come into effect soon.

The controversial tribunals, which try civilians charged with terrorism offenses, expired on January 7 after functioning for two years. They sentenced some 160 people to death, of whom 20 have been executed.

The courts came into force after the deadly Taliban attack on a Peshawar school in December 2014 that killed more than 150 people, mostly children. The country's powerful military intensified its crackdown on extremists following the massacre, as the civilian government introduced a National Action Plan (NAP) that included the creation of the military courts.

But rights activists say the military courts are "extra-constitutional" and have failed to achieve the target they had set for themselves - the eradication of terror. In addition, they say, no efforts have been made to reform the civilian judicial system to speed up terror trials.

A complicated matter

Civil society groups were hoping that parliament would decide against the revival of military courts. Now that the tribunals have been reinstated, many in Pakistan find it paradoxical that the civilian lawmakers have willingly surrendered their already limited powers to the military.

"For the past eight to nine years, the civilians have surrendered to most demands from the military. Nearly all major decisions to govern the country are made by the army generals. One of the reasons why they submit to the military is that the Pakistani army can destabilize the country and the government," Arif Jamal, a US-based researcher and analyst, told DW.

Islamabad Pakistan neugewählter Präsident Sharif 05.06.2013 (picture-alliance/dpa)

255 lawmakers voted in favour of the military courts' revival, surpassing the two-third majority in the lower house of parliament

The military courts have been slammed nationally and internationally also due to the fact that they violate fundamental human rights of Pakistani citizens. Under the secret military court system, civilian defendants are barred from hiring their own lawyers; media is not allowed to observe proceedings; there is no right to appeal; and the military tribunal judges - not necessarily possessing law degrees - are not required to provide reasons for their verdict.

Ironically, the country's Supreme Court endorsed the military tribunals after they were first approved by parliament in early 2015. Experts analyze it in several ways and say that the parliament and judiciary have admitted they can't dispense justice in cases related to Islamic terrorism, and that they have simply bowed to the pressure and handed over the reins to the army.

But one also needs to look at the problem the civilian administration and judiciary face in relation to terrorism cases. On a number of instances, the civilian courts' judges were openly threatened by Islamic militant groups such as the Taliban and the Lashkar-e-Taiba. A number of lawyers have been killed for prosecuting extremists. Many judges have fled the country after receiving death threats. In the past, liberal politicians were killed for speaking against controversial blasphemy laws and in favor of secular legislation. The perpetrators of these crimes have still not been brought to justice.

"Though the reinstatement of military courts is not the best option, but given the domestic and international situation, there aren't many alternatives available," Khalid Rahman, Executive President of the Islamabad-based Institute of Policy Studies, told DW.

"The current processes of justice and legislation are a sad reflection of the poor governance and a lack of political will to bring about the improvements that had been envisioned two years ago when the military courts were established. It also reflects the failure of the current international system in which an increasing number of states are faced with the need for legislation that bypasses due process of law," Rahman said, adding that despite the introduction of some safeguards in the new bill, the establishment of army courts cannot be considered a substitute to an effective judicial system.

Pakistan Taliban-Überfall auf Schule in Peshawar 16.12.2014 (Reuters/K. Parvez)

The courts came into force after the deadly Taliban attack on a Peshawar school in December 2014

A solution or a problem?

Despite the criticism, the military courts enjoy considerable public support in Pakistan. But rights activists say that does not justify the military's involvement in civilian judicial matters. The Pakistani military, they point out, already has more say in domestic and foreign policy matters than the civilian government. The military is taking over all aspects of governance on the pretext of terrorism, according to observers.

The powerful military of the South Asian nation has been receiving billions of dollars from Western nations for more than a decade to eradicate terrorism from Pakistani soil. This includes seven of the nine years of former military dictator Pervez Musharraf's iron-fisted rule from 1999 to 2008. Activists ask why the military supporters think the army courts can solve the issue if the direct military rule could not rein in Islamists?

The chairperson of Pakistan's non-governmental Human Rights Commission (HRCP), Zohra Yusuf, blamed political leaders for the situation. She said the government did not take advantage of the consensus against Islamist militancy and surrendered its powers to the army. "It is unfortunate that the nationwide resolve against the Taliban and other extremist groups did not translate into political action. It remained a military affair," Yusuf told DW after the 2014 Peshawar attack.

In a 2015 report, the International Crisis Group (ICG), too criticized Pakistan's counterterrorism measures.

The National Action Plan introduced after the Taliban attack in Peshawar had given the army dominance in security affairs that in a democratic setup should have belonged to PM Sharif's government, the report said.

"The militarization of counterterrorism policy puts at risk Pakistan's evolution toward greater civilian rule, which is itself a necessary but not sufficient condition to stabilize the democratic transition," the ICG underlined. "The NAP looks far more like a hastily-conceived wish list devised for public consumption during a moment of crisis than a coherent strategy," it added.

The ICG paper advised Prime Minister Sharif to take matters into his own hands and democratize the anti-terrorism strategy "in order to replace an overly militarized response with a revamped, intelligence-guided counterterrorism strategy, led by civilian law enforcement agencies, particularly the police."

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