Pakistan faces unique security challenges due to the complex geo-strategic regional environment. One of the major challenges is the cross-border terrorism perpetrated by its Eastern and Western Neighbors. This menace of terrorism has ultimately started threatening the very fabric of the nation. Pakistan undertook a comprehensive and effective war to eradicate terrorism across the country. The operations were conducted with an immaculate synergy of all Law Enforcement Agencies with the complete nation standing behind them. Armed Forces of Pakistan rendered immense sacrifices to ensure peace and stability in the country. While these kinetic efforts continue, the scourge of terror continues to haunt this resilient nation in one way or the other.
Our national efforts to eradicate terrorism cannot succeed if there is a flawed judicial system in support of these operations. Regrettably, our judicial system failed to deliver timely and transparent justice. According to statistics our superior and lower judiciaries are grappling with a staggering backlog of 2.144 million cases. In 2021 alone, 4.102 million cases were concluded, while 4.06 million new cases were filed, leading to an overall pending caseload of 2.16 million at the start of the next year.
Anti-Terrorism Courts (ATCs) were established for fast-track legal proceedings of terrorism-related cases and for the provision of expeditious justice to ensure a swift response to this security threat. 23 ATCs are functioning in Punjab, 13 ATCs in KP, 32 ATCs in Sindh, 9 ATCs in Balochistan, 10 ATCs in AJK and 2 ATCs in Islamabad. NACTA’s statistics show that over 605 cases of terrorism are pending in ATCs (34% cases in Balochistan and 32% cases in KP) due to delays in trials of terrorists. According to other reports, an alarming number of alleged terrorists, approximately 2000, implicated in prominent terrorism cases, were released by the ATCs since 2007. For example, the ATC Rawalpindi, citing insufficient evidence, acquitted the leader of LeJ in three terrorism cases. In another case, the suspects accused of the murder of four Military Intelligence personnel and a civilian, who were gathering intelligence on militant hideouts in the Pir Chambal mountains Chakwal, were acquitted by the ATC. A significant proportion of these individuals subsequently resumed their affiliations with terrorist organizations.
Our national efforts to eradicate terrorism cannot succeed if there is a flawed judicial system in support of these operations.
Delays in the resolution of the cases and acquittal of dangerous terrorists can occur due to various reasons. Out of those reasons, the most important is the pressures and the threat to judges, witnesses, and their families. In such a situation, the involvement of military courts can provide an alternative for swift and efficient proceedings, ensuring that justice is served and the safety of those involved is ensured. Military courts hold a critical role as they evoke a profound sense of fear and deterrent effect on those involved in or supporting terrorist activities. The mere prospect of facing a military trial strikes terror into the hearts of potential wrongdoers, underscoring the gravity of their actions and the unwavering commitment of the state to deliver swift and resolute justice.
Trials of Civilians in Military Courts under the Pakistan Army Act are not unique to Pakistan only; in the United States, Military Extraterritorial Jurisdiction Act (MEJA) and Uniform Code of Military Justice (UCMJ) govern civilian trials in military tribunals. All civilian conspirators involved in the Lincoln conspiracy were tried by military commission. To trial citizens suspected of crimes linked to terrorism, President Bush issued an executive order establishing military tribunals. By using “Decree Law No. 667,” Turkey gave the military judiciary authority over civilians who were charged with offences connected to the coup attempt. The Armed Forces Special Powers Act (AFSPA) of India gives the armed forces unique authority and permits the prosecution of civilians in military courts. Civilians accused in the 1993 Bombay Bombings Case were tried under the Terrorist and Disruptive Activities (Prevention) Act (TADA).
As long as three basic rights are respected-the right to a fair trial, the presumption of innocence, and the right to legal representation-civil trials in military tribunals are not specifically forbidden under the International Covenant on Civil and Political Rights (ICCPR).
Amid the ongoing debate comparing civilian and military courts, it is essential to underscore that military courts adhere strictly to the Constitution, and accused individuals have the right to appeal their cases in the High Court and Supreme Court. International rankings affirm the competence of military courts, placing them 7th on the Index of International Judicial Competence. In stark contrast, Pakistan’s civil courts languish at 136th worldwide, an abysmal commentary on their performance.
In light of these facts and the evolving situation, trying such cases in civilian courts will expose them to lengthy proceedings, leading to potential exposure of sensitive information. Cases in the realm of national security, including those related to the Armed Forces are of paramount importance, and their efficient adjudication is vital for the safety and security of the nation. It is in the interest of Pakistan to have a legal framework in the form of military courts that ensures the swift and effective handling of such cases, without compromising the principles of justice and transparency.
The writer is a freelance columnist.