Supreme court had to allow military to try terrorism suspects

Sajjad Ashraf argues that, by allowing the military courts to try terrorism suspects, the supreme court has strengthened its own position.

A view of the Army Public School auditorium the day after Taliban gunmen stormed the school in Peshawar, Pakistan, last year. BK Bangash / AP Photo

In a much-awaited decision, Pakistan's supreme court ruled in an 11-6 decision last week that the parliament had full powers to amend the constitution unless these amendments impinged upon certain salient features of the constitution. The court defined these salient features as democracy, the parliamentary form of government and independence of the judiciary.

The two amendments – 18th and the 21st – had been challenged under several petitions. The former related to the period between 2008 and 2013, when a whole range of changes instituted by military rulers were annulled and several adjustments made with regard to federal-provincial relations.

It was the 21st amendment, brought in after the terrorist attack on the Army Public School in Peshawar in December, that was the subject of speculation and anxiety. More than 150 children and teachers were killed in that incident that galvanised the nation's resolve to fight terrorism.

The amendment related to the changes in the Army Act allowing civilians “claiming or known to belong to any terrorist group or organisation using the name of religion or sect” to be tried by the military courts provided their cases were referred by the federal government.

Prime minister Nawaz Sharif told parliament that the supreme court verdict to uphold the establishment of military courts to try terrorists was testament to the supremacy of the constitution and parliament.

Pakistan has lost more than 58,000 people in terrorism-related incidents since 2003. Thousands more have been killed in sectarian and targeted killings. Military courts seem to be the only solution.

The 900-page judgment and the dissenting notes demonstrate a deep divide over the questions ranging from defining a terrorist to the legality of the steps the government should take in tackling the menace. The supreme court chose the middle ground.

Judges dissenting with the majority opinion, including the incoming chief justice, Jawwad Khawaja, believe that parliament does not have unlimited powers to enact amendments to the constitution.

Many critics of the 21st amendment do not appreciate that Pakistan’s criminal justice system has been unable to cope with the nature and number of crimes committed under various forms of terrorism.

A 2011 US State Department report concluded that Pakistan was incapable of prosecuting terror suspects because three out of four suspects are acquitted. Since 2007, the courts have freed over 200 alleged terrorists, most of whom have rejoined extremist groups, according to the security agencies. The supreme court decision drew mixed reaction. While the politicians hailed the decision, jurists’ bodies and civil society organisations said that allowing military courts was a blow to human rights and the rule of law.

Some labelled the decision as a resort to the “doctrine of necessity” under which almost all military takeovers in Pakistan were legitimised by the supreme court. The fear among civilians is that unless there is a perceptible drop in terrorism, the life of these courts might be extended.

But the supreme court has not given in completely to the political class and the military. While allowing the military courts, it has strengthened its own position by assuming responsibility for deciding who is referred for trial to the military courts and maintaining oversight of these courts’ decisions.

Pakistan has clearly failed to tackle terrorism in the past, and its people will not take kindly to any further impediments to the effective dispensation of justice.

Sajjad Ashraf is an adjunct professor at the Lee Kuan Yew School of Public Policy, National University of Singapore and an associate fellow at the Institute of Southeast Asian Studies, Singapore. He was a member of Pakistan’s foreign service from 1973-2008