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The freedom-security trade-off

By Hussain H Zaidi

The sun has set on the military courts instituted for the trials of civilians charged with terrorism related offences. It is likely, however, that the sun will soon rise again.

Throughout their two-year term, which started in January 2015, the special military courts remained shrouded in controversy. The establishment of the military courts was part of the National Action Plan (NAP) unveiled on December 24, 2014 in the wake of the Army Public School (APS) Peshawar tragedy. NAP summed up the prevalent sentiment over the APS incident. The first two of the 20 points of NAP included setting up special military tribunals and lifting the moratorium on executions, which had been in force since 2008.

Before military courts saw the light of day, suspected terrorists were tried by anti-terrorism courts (ATCs) set up under the Anti-Terrorism Act 1997, as amended. The scope of the act includes not only prevention of terrorism and sectarian violence but speedy trial of ‘heinous offences’ as well. Accordingly, ‘terrorism’ is too broadly defined by the act, which includes a wide range of criminal activities such as kidnapping for ransom, gang rape, attack on government buildings and media persons, extortion of money and serious coercion or intimidation of public servants.

Such broad a definition of terrorism is not without implications. For one thing, it puts an enormous burden on the ATCs, resulting in a huge backlog of cases and slowing down persecution of hardcore terrorists. For another, it makes the law susceptible to misuse at the hands of law-enforcement agencies. Though the act provides protection to judges, prosecutors, witnesses and other people connected with court proceedings, questions have been raised over the capability of civilian agencies to protect them. Another defect of the act is that it extends only to the capital territory of Islamabad and the four provinces. Hence, militants who are based in the restive Federally Administered Tribal Areas (Fata) have been outside its jurisdiction.

It is for such reasons that civilian courts had failed to convict alleged terrorists expeditiously. As a result, miscreants would in most cases go scot free, planning and executing more acts of terrorism.

The shortcomings of the Anti-Terrorism Act may be juxtaposed with the populist demand for the expeditious trials of miscreants, leading to their conviction. In the wake of such a colossal, nerve-racking tragedy as the carnage of children at the hands of militants, resisting that sort of demand became a difficult proposition for the political leadership. It was argued that since military courts would be free of such problems, the higher number of convictions was likely to come through in a shorter period.

Following the 21st Amendment to the constitution as well as amendment to the Army Act 1952, 11 military courts were established in the four provinces. According to Inter Services Public Relations (ISPR), in two years, the military courts convicted 274 people, out of whom 161 were awarded capital punishment – 12 were sent to the gallows.

Be that as it may, there is the other side to the military courts – their establishment and working is in conflict with the fundamental rights guaranteed by the constitution. A reference may be made to Article 4 (right to be dealt with in accordance with the law) and Article 10-A (right to fair trial and due process of law). In addition, the military courts undermine the principle of separation of the judiciary from the executive enshrined in Article 175 of the constitution.

Therefore, the 21st Amendment had to be enacted to give constitutional cover to the military courts by amending Article 175 and the First Schedule of the constitution. Article 175 was amended so that provisions of the article shall have no application to the trial of a person “who claims, or is known, to belong to any terrorist group or organisation using the name of religion or a sect”.

The First Schedule contains laws that are exempt from the operation of Article 8 Clause (1) and (2) of the constitution. Article 8 forms part of chapter 1, which confers a number of fundamental rights, of both civil and political nature, upon citizens. In view of the inviolability of fundamental rights, clause (1) of Article 8 declares that any law inconsistent with such rights shall be void. Clause (2) prevents the state from making any law which ‘abridges’ or ‘takes away’ any of the fundamental rights.

However, clause (3) of Article 8 creates some exceptions to the inviolability of fundamental rights. One of these exemptions is the law mentioned in the First Schedule of the constitution. The 21st Amendment added the Pakistan Army Act 1952 and The Protection of Pakistan Act 2014 to the First Schedule.

The critics of the military court argue that instead of vesting the army with the power to try civilians, the government should have gone for overcoming the deficiencies of the criminal justice system. Apart from this, the special military courts add to the power of the men in uniform, which in turn undermines civilian institutions and democracy.

The 21st Amendment was challenged in the Supreme Court for being ultra vires to the constitution. The apex court in a majority judgement upheld the amendment but at the same time reserved the right to review the convictions handed down by the military courts.

The way the military courts worked also invited criticism. The cases for trial were sent to the courts by the Ministry of Interior on the recommendations of the provincial government. It is alleged that these courts operated in a secretive manner – the accused were debarred from hiring a counsel of their choice, the evidence on the basis of which they were convicted might not have been conclusive and that it is doubtful whether they tried only hardcore terrorists. Such allegations may be devoid of substance. But the working of the military courts was bound to give rise to such allegations.

In defence of the military courts it can be argued that at times a society faces a trade-off between freedom and security. Fundamental freedoms have to be curtailed to ensure a greater measure of security to people. Not surprisingly, emergency provisions, which restrict fundamental rights, are contained in the constitution of almost every country. In case of Pakistan, which is facing an existential threat, the military courts represent such a trade-off.

The term of the special military courts has expired. But reforms in the criminal justice system have not come through. Even in the event that the military courts are revived, such an arrangement can’t, and should not, work for an indefinite period.

So in case the government is committed to rooting out militancy, the long-run recipe is not military courts but reforms in the mainstream judicial system along with amendments to the Anti-Terrorism Act.

The writer is a freelance countributor.

Email: hussainhzaidi@gmail.com

Source: The News

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