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'Parallel system of justice'

Interview: Gabriel DomínguezJanuary 7, 2015

Pakistani lawmakers have voted to try terror suspects in military courts in a bid to tackle insurgents after last month's school massacre. But legal expert Waris Husain tells DW why the move gives reason for concern.

Parlamentswahlen in Pakistan
Image: picture-alliance/Photoshot

Both houses of parliament passed the laws on January 6 after a vote by lawmakers in the capital, Islamabad. More than two-thirds of 342 members of the lower house National Assembly voted in favor of amending the constitution to set up military courts for the speedy trial of terrorism suspects. The legislation - which must still be signed by the president - is set to become effective immediately and last for two years.

It is the latest in a series of moves by the Pakistani government to get tough on the widespread Islamic militancy, especially following the December 16 attack on a school in the city of Peshawar where some 150 people – mostly pupils – were killed. In the wake of the massacre, the government also lifted the moratorium on the death penalty for convicts in terrorism-related cases. So far nine people have been executed - a move heavily criticized by human rights activists.

In a DW interview, Waris Husain, an expert on Pakistani legal issues, says that while the military courts may satisfy some in the corridors of parliament or even in the court of public approval, the new legislation fails to tackle the reasons why the insurgency has come so far in the first place, and creates a class of citizens who are not entitled to their constitutional rights.

Pakistan Taliban-Überfall auf Schule in Peshawar 16.12.2014
Husain: 'After the attack, there was a sense of grief and revenge shared amongst the public, media and leadership'Image: picture alliance/ZUMA Press

DW: Why did Pakistani lawmakers decide to try terror suspects in military courts?

Waris Husain: After the Peshawar attack, there was a general sense of grief and revenge shared amongst the public, media, and leadership. There was real pressure, perhaps for the first time, on the government to take an aggressive approach to the proliferation of terrorism in the country.

This was the reason the moratorium on the death penalty was lifted immediately and why an all-parties meeting was convened. The dominant solution proposed at this meeting, which included Pakistani military personnel, was that the military be given the duty to try terror suspects.

There are many facets to the reasoning behind the military courts: first, there is the widely held belief that where civilian actors falter due to incompetence or unwillingness, the military "hits hard" at accomplishing its stated goals.

Second, there is the issue of "hard times calling for hard measures," as Pakistan is under constant threat from terrorism with groups growing in affluence and influence. Coincidentally, both of these concepts have been used to justify the repeated military coups in Pakistan's history.

What are the shortcomings of Pakistan's ordinary court system in terms of handling terrorism-related cases in Pakistan?

In some ways, Pakistan has a more advanced system of justice to deal with modern terrorist threats than other countries. Through the Anti-Terrorism Act, the nation created specialized anti-terrorism courts that are tasked with handling all cases involving terror suspects. These courts follow many normal rules of fair trial, with trained jurists who serve as judges, and have operated for several years.

Further, the Pakistani Supreme Court has made two landmark decisions in the past that assert that military courts violate the constitutional rights of its defendants. This is the reason why the military courts have been put in place with a constitutional amendment currently - to give them cover from this bold jurisprudence from the Supreme Court in earlier years.

However, the conviction rate for cases presented before these specialized courts is in the single digits and is very problematic. There are many causes for this problem: while some affect all of Pakistan's judicial system, others are more specific for terrorism cases.

The low conviction rate is partially due to intimidation by groups against judges, witnesses and prosecutors, several of whom have been killed or tortured. There is little protection offered by the State in many cases.

In addition, there is the issue of a lack of admissible evidence, which is often due to defective police-work that includes torturing suspects to obtain illicit confessions. Then, some have pointed to the bloated nature of the Anti-Terrorism Act itself, which has been amended and expanded several times by various administrations over its lifetime.

In your view, do these shortcomings justify the establishment of military courts for terrorism-related offenses?

These shortcomings present very real problems that desperately need to be addressed right now. In some ways, the creation of the military courts merely kicks the ball down the road for two years rather than addressing the real concerns people have with the anti-terrorism courts.

This is especially true since the civilian courts cannot, or at the very least should not, adopt any precedence of cases from military courts since those courts do not follow the same rules of procedure to ensure fair trial as civilian criminal courts in Pakistan - including the anti-terror courts.

What are your main concerns about military court trials?

There are real problems with military court trials around the world, as we have seen in the light tug of war between the US Supreme Court and the military commissions in Guantanamo. These courts often do not offer the same protections to the accused as their civilian counterparts and they often create rules ad hoc rather than obeying an established code of procedure.

Pakistan Proteste gegen Taliban 5. Januar 2015
'There was real pressure on the government to take an aggressive approach against terrorism in the country,' says HusainImage: picture-alliance/dpa/AP Photo/K.M. Chaudary

Second, in the case of Pakistan, this is especially worrisome when many of the judges permitted to sit on the commissions will lack any legal experience. Further, these trials may be used as a tool against political dissidents or groups that have long-angered the military.

Many argue that by passing the latest legislation the government has simply handed over more power to an already powerful army. What is your view on this?

There is no doubt that one must consider how any development affects the interplay between the civilian rulers and the military, as it is essential to the context of Pakistan. This is especially true for the current ruling administration led by Nawaz Sharif, who has a chequered past with the military.

One could certainly see the creation of the military courts through a constitutional amendment, which was happily endorsed by Sharif, as a "win" for the army against the civilian administration when it comes to control of real political power in the country.

In your view, are these new laws the best way to handle the insurgency problem in Pakistan?

I believe this decision may satisfy some in the corridors of parliament or even in the court of public approval because, as I said, the Peshawar attack was a wake-up call for some in the country. However, failure to establish the rule of law and the writ of the State is the reason why the insurgency has reached its maturation in the first place; military courts and operations in the border lands will not deal with that socio-economic basis for the insurgents.

In fact, it stymies the process of bringing all citizens under the fold of a system of rules that are enforced regardless of who violates those rules. These measures create a class of citizens who are not entitled to their constitutional rights for a fair trial and the right to life so long as they are accused of terrorism, and it also creates a parallel system of justice for the military and its officers to operate under with impunity from the normal systems of law.

Pakistan Islamabad All parties conference 02.01.2015
The dominant solution proposed at the all-parties meeting was that the military be given the duty to try terror suspectsImage: picture alliance/ZUMA Press

What does the country need to do, in your view, to solve the conflict with the militants?

First, I think the Anti-Terrorism Act needs to be revised and simplified to facilitate prosecutions of suspects in anti-terrorism courts. Second, as suggested by the Sharif Administration during the writing of the Protection of Pakistan Ordinance (PPO), there should be witness and judge protection with designated police teams and safe houses to stop terror groups from intimidating the system from rightfully prosecuting them.

Third, there is a concept I am currently developing and hoping to propose, which would involve creating a racketeer influenced and corrupt organizations (RICO) act for Pakistan. In some ways, as the United States government had a difficult time prosecuting gangs and mafias dealing in drugs, kidnapping, murder, bootlegging, due to witness intimidation and evidentiary limitations before the RICO Act, Pakistan is having problems dealing with prosecuting terror groups who commit the same acts.

The RICO act would allow for any member of a banned organization to be tried for ALL the crimes their organization committed, and many of them could be tried as a group. Along with providing police protection to judges and witnesses, such a law could fast-track prosecutions within the anti-terrorism courts where they belong.

Waris Husain is a Pakistan expert, professor of law in Washington D.C. and a writer on legal and US -Pakistan issues.