During the meeting, a variety of views were expressed on the subject but no specific consensus could emerge on the central question of whether the proposed establishment of Special Courts under military personnel for addressing the menace of terrorism in Pakistan should be supported or not. PILDAT however has developed the following position in the light of the discussion during the DAG meeting:
1. A detailed position on the subject cannot be taken until the full text of the proposed legislation is available and the scope, nature, composition and the period of validity of the proposed special courts is known.
2. An accurate judgment on the justification, if any, of the proposed Special Courts headed by the military personnel cannot be made in the absence of reliable data on various factors which are presented as the rationale for establishing these courts headed by military personnel, especially in the context of the following two arguments:
i. The courts let off most of the terrorists apprehended in the 2009 Swat Operation by the armed forces. More effective courts are therefore needed.
ii. Civilian judges have increasingly refrained from passing judgments in accordance with the law to convict suspected terrorists due to reported threats to their, and their family members� lives.
3. We recognize that Pakistan today is faced with a war-like situation. The number of civil and military causalities and the scale of loss to property and installations during the past few years indicate that Pakistan is faced with nothing less than a war. The recent tragedy of brutal massacre of young students in the Army Public School, Peshawar, on December 16, 2014, has only brought into sharp focus this situation.
4. PILDAT also noted with great concern that various civilian institutions in the country including the civil administration and the judiciary have over the years become less efficient and effective, especially in dealing with the situation that we are currently faced with in the context of terrorism.
5. Although we do no have concrete evidence and data, it is quite plausible in the light of the anecdotal evidence that the police personnel investigating and prosecuting the suspected terrorists and the judges trying the terrorists would feel threatened to a point that they are unable to do justice to their duties and functions. In this context, we have noted the fatal consequences faced by the six named witnesses in the Wali Khan Babar case and the number of police officers who were thought to be part of the military operation in Karachi in the past which indicates that witnesses and police in Pakistan are not provided with sufficient security, especially in terrorism related cases. Therefore, a general atmosphere of fear does prevail under which the media, civil administration, judiciary, civil-society organizations and the law-enforcement agencies exist.
6. PILDAT recognizes that these are extra-ordinary times by all counts. We also recognize that in these extra-ordinary times, some extra-ordinary actions may be required, some of which may be considered highly undesirable and inappropriate in normal circumstances.
7. We also feel that only the Government of Pakistan and its various branches are in the best position to ascertain what degree of extra-ordinary steps need to be taken because the exact nature of threat and its dimensions are most likely known only to them. We therefore believe that the Government of Pakistan, based on the information available to them, with comprehensive input from the various law-enforcement and intelligence agencies, should propose the appropriate measures needed to be taken at this time. The proposals for these measures, including amendments to the Constitution or new laws, should be placed before the Parliament which should then consider these proposals in the light of the current situation and the briefings to be given to them by various, relevant entities, if necessary, during an in-camera session. We believe that the democratically elected representatives of Pakistan are in the best position to decide on the steps that need to be taken. If these steps include amendments to the Constitution or new laws, they should be made public as soon as their drafts are finalized so that the civil society, including PILDAT, may provide its feedback to the elected representatives.
8. We think that whatever needs to be done, in terms of the legal steps required, should be done in such a way that it is made very explicit and clear that the measure is in response to an extra-ordinary situation and should be time barred. As soon as the extra-ordinary situation ceases to exist, the proposed arrangements should be rolled back. If the Special Courts headed by the military personnel are determined by the Parliament to be the only option available, it should not be made to look acceptable under less than extra-ordinary situation. In principle, we do not think that the establishment of Military Courts or Special Courts under military personnel is acceptable as it is counter-productive and contrary to the democratic principles universally accepted in the civilized world.
9. The need for Special Courts under military personnel as recognized in the National Action Plan adopted by All Parties Conference convened by the Prime Minister of Pakistan on Wednesday, December 24, 2014 amounts to an admission that our civilian judicial system has failed to keep pace with time and to respond to the rising tide of terrorism. Even before this extra-ordinary situation arose, a large part of the general public had lost trust in the judicial system and the overall governance had deteriorated to the point where the problems of the common man remain largely unattended.
10. The Government of Pakistan should urgently, on a war-footing, initiate all possible steps to build the capacity of the police services, including its prosecution and investigation branch. The Superior Courts, especially the High Courts, should also initiate urgent steps to reform and revamp the lower judiciary both in terms of quality and quantity so that extra-ordinary steps like Special Courts under military personnel should not be needed in future. A time line should be established to accomplish these tasks well before the period of validity of the proposed special courts lapses.
11. PILDAT strongly believes that the curse of terrorism cannot be addressed purely through law and order steps or merely through judicial process. A number of steps across a wide range of categories need to be taken including the development and popularization of a counter narrative to the ideology of the terrorists. |
