Daily Times

In the famous Liaquat Hussain vs Federation of Pakistan case, the Supreme Court (SC) of Pakistan ruled the Ordinance establishing military courts to be illegal. This time, because it was an amendment to the Constitution, in a landmark decision a 17-judge bench has rejected all applications challenging the 21st Amendment, which established military courts.
In light of the petitions filed challenging the amendment, in April, the SC of Pakistan had suspended the death sentences of convicted terrorists by military courts. This had made the lifting of the moratorium to combat terrorism and support for military courts temporarily counterproductive to the intention for which it was passed. Those convicted of terrorism through military tribunals were not being executed while many of those convicted of lesser crimes are being executed at an increasingly alarming rate.
Pakistan has executed more people in the past seven months than Saudi Arabia. And that is saying a lot, since Saudi Arabia itself has executed more people in the past seven months — over 100 — than it has in all of 2014. Almost half of those were for nonviolent drug crimes. According to the independent Human Rights Commission of Pakistan, 196 people have been executed in Pakistan since the lifting of the moratorium in December 2014. The majority of those are unrelated to militancy or sectarian violence.
After the devastating terror attack on a Peshawar school, which killed 148 people, most of them children, Prime Minister (PM) Nawaz Sharif partially lifted the six-year moratorium on executions as part of a 20-point National Action Plan (NAP) to combat terrorism. Pakistan’s legislators passed the 21st amendment to the constitution and the Pakistan Army Amendment Bill to temporarily allow military tribunals to try militants accused of waging war against the state. Its newly formed military courts were supposed to make it easier for terror suspects to be convicted as they often went free due to lack of evidence.
Pakistan’s special Anti-Terrorism Courts (ATCs), a parallel legal system, are already overwhelmed with over 17,000 cases, 85 percent of them unrelated to militancy and sectarianism. The conviction rates have been very low. The ATC in Islamabad did not have a single conviction last year. The ATC in Rawalpindi previously acquitted banned sectarian group Lashkar-e-Jhangvi’s (LeJ) Malik Ishaq, a US designated global terrorist, from three counts of terrorism. He had taken responsibility for numerous terror attacks including bombings in Quetta, which killed 200 civilians, mostly Shias, and orchestrated the attack on the Sri Lankan cricket team while behind bars. But it is likely he would have been acquitted again had he not been shot dead last month in a gun battle between the police and supporters who tried to free him.
The ATCs have been criticised for long delays and lack of security, and are often deemed ineffective. In the past, they have been used for political victimisation. The Anti-Terrorism Act, 1997, and later amendments, defined terrorism vaguely as “anything, which causes death, or grievous bodily harm to a person.” In contrast, the recent 21st constitutional amendment and amendment to the Pakistan Army Act allow trial by military courts for members of “terrorist groups using the name of religion or a sect” who “raise arms against Pakistan’s civil or military installations, armed forces or law enforcement agencies, abduct a person for ransom, possess, fabricate, or transport explosives, fire-arms, suicide jackets, design vehicles for terrorist activity, receive foreign funding for such crimes, or act to create terror or overawe the state.” They did not extend to political, nationalist, separatist groups or other crimes. It gave discretion to the federal government to approve and transfer the case of any suspected terrorist accused of such offenses to be tried under the act.
Although the amendments passed both parliament and Senate unopposed, they were criticised in the media and by human rights groups both inside and outside the country. These are genuine concerns for a country that has continually struggled with marital law and seen its own sitting Prime Minister tried in an ATC by a military dictator. Asma Jahangir, a leading human rights advocate, raised many concerns on behalf of the SC Bar Association in a petition challenging the amendments.
Meanwhile, Pakistan’s government quietly lifted the moratorium on executions for all capital cases whereas the SC placed a stay order on the executions of those convicted by the military courts.
This is a considerable problem for Pakistan, which has over 8,000 people on death row, one of the largest in the world according to Justice Project Pakistan. Some of those are charged with the controversial blasphemy law, such as the case of Asia Bibi. Her death sentence has only now been suspended by the SC during the process of appeals. Some human rights groups have also cautioned Pakistan on executing those who may have been tortured or those who were minors at the time of their confessions. A few controversial cases have made headlines, one of Shafqat Hussain whose execution was halted four times due to the controversy of his age at conviction but he was executed last Tuesday. Then there is the case of mentally ill Khizar Hayat and another of Aftab Bahadur Masih, who was executed last month amidst fears he was a juvenile, only 15, when convicted and tortured into confessing.
In an essay in The Guardian, Bahadur questioned the greater purpose his death would serve. “While the death penalty moratorium was ended on the pretext of killing terrorists, most of the people here in Kot Lakhpat are charged with regular crimes. How [will] killing them stop the sectarian violence in this country?” he inquired. Indeed, it makes little sense that Bahadur’s case was tried under the special courts for Speedy Trial Ordinance meant for terrorists. Certainly, such executions do not help make Pakistan any safer but can at times amount to more injustices taking place within a criminal justice system, which needs much improving.
The age-old adage “not only must justice be done, it must be seen to be done” applies here. Pakistan must do more to ensure that the right people — hardcore terrorists — are being executed, especially as there remain innumerable looming threats. Peshawar based journalist, author and terror expert, Aqeel Yousafzai, who is in favour of the military courts, believes up to 1,000 local militants and 10 Taliban commanders have joined Islamic State (IS) in Pakistan, posing a big threat to the region in the future.
As a deterrent, militants must know they will be punished severely. At the same time, the state must seek to provide fair trials for all civilians, even for those who commit the most perverse crimes. Pakistan is not alone; this is a monumental task for any country.
One solution for Pakistan would be to make its military courts more transparent and ensure a fairer trial by addressing some of the concerns of the SC Bar Association. The National Commission on Human Rights (NCHR) Chairman Justice (retd) Ali Nawaz Chowhan has acknowledged the necessity to help the military fight an insurgency and asked that the commission be allowed as observer in the military courts to ensure more transparency. Along with this, more should be done to ensure that intelligence agencies and security forces collect evidence admissible in court. Detainees should also have the right to appeal their detention in the federal courts. More accountability in military courts may offer a temporary solution to extra-judicial killings and disappearances. It is worth noting that the number of those killed in custody across Khyber Pakhtunkhwa and the tribal belt, as reported by The New York Times, has said to have significantly gone down since the approval of military courts.
Another solution is to reform the existing ATCs. Pakistan must offer more protection for both judges and witnesses and make it easier to define and convict its “jet-black terrorists.” It must not muddle the necessity to fight terrorism in these courts with those accused of lesser crimes or misuse them to persecute political adversaries. The problem lies in the definition of what accounts for “terrorism” as it is defined in Section 6 of the Anti-Terrorism Act 1997 and following amendments. This term needs to be redefined in light of the new reality faced by the nation and region at large.
During the month of Ramzan, Prime Minister Nawaz Sharif temporarily suspended executions. As they now resume, Pakistan’s legislators must examine its effectiveness in light of the war against terrorism. As Pakistan strengthens its resolve against terrorism, for which it has been applauded internationally, it must continue to make some very tough decisions ahead. Surely Pakistan cannot afford to lose the war on terror. But, at the same time, it must also balance and uphold its democratic and constitutional ideals.

The author is a freelance journalist and contributor for Al-Jazeera America. She can be reached at Meriam.Sabih@gmail.com or Twitter @meriamsabih