Dysfuctional Judicial System and Military Courts in Pakistan,
Dr Iqtidar Karamat Cheema
    Supreme Court of Pakistan in its momentous 900 pages long verdict on 5th August, stricken off all petitions against the establishment of the controversial military courts in Pakistan. Although the court has stated that all decisions of military courts would be subject to judicial review but the decision has sparked a debate amongst the legal and civic circles of the country. Pakistani Prime Minister Nawaz Sharif has welcomed the decision. His Special Assistant for legal affairs has also declared the decision "another strike against terror", adding, "it's a success for the nation." However detractors and Human right activists say it goes against the constitution and the civil rights as decision will empower military courts to pass death sentences on civilians. Earlier this year Pakistani legislature passed the 21st Constitutional Amendment to establish the Military courts as part of a crackdown on militancy following a Taliban attack at a Peshawar Army Public school.
     Following the lethal terrorist attack on defenseless school children, Prime Minister Nawaz Sharif ended the six-year moratorium on the death penalty, restoring it for terrorism-related cases. The decision brought a respite to the Nation which mourned the death of 150 victims of the Taliban school attack. As confirmed by the Government officials, Pakistani Ministry of Interior had finalized the implementation of death penalty for 500 offenders who have already been convicted by the courts. They have also lapsed all the appeals and their mercy petitions were also rejected by the President of Pakistan.
   However on 22nd December, 2014, Rawalpindi bench of Lahore High court (LHC) and Sindh High court (SHC) suspended the execution of seven convicted terrorists mentioning various grounds. Following this suspension of death sentences, Prime Minister Sharif directed the attorney general of Pakistan to take appropriate legal measures to get rescinded the suspension order on death penalties of these terrorists. This whole situation clearly exhibited the legislative loopholes in Pakistani criminal justice system which helps terrorists groups to be fled from the punishments. This provided the context to Pakistani Parliament to pass 21st Constitutional Amendment on January 6, 2015 to establish the Military courts for a period of 2 years.
    The courts obviously have to satisfy all the legal procedures. The judiciary cannot convict the accused, if there is no evidence against them. Many extremists wedged by the police after terrorist acts in Pakistan were able to go to the courts and get released. Infact, there have been so few convictions of the extremist accused of terrorism by the civil judiciary. Some observers have opined that this low rate of conviction is due to the lack of convicting evidence; for which the executive departments should be blamed. However, writers like Dean Nelson opines that the low conviction rate of terrorists is due to the populist and religious bent of the Pakistan’s judiciary. It appears that terrorists are at ease to conduct their disruptive activities due to ineffectiveness of Pakistani criminal justice system.
   The witness protection system in Pakistan is almost nonexistent. Consequently, those who give evidence against powerful criminals and terrorists in courts receive no security. In various cases, police officers investigating terrorists have been murdered. The best-known case is of Malik Ishaq, whom police charged with at-least seventy murders but he was never convicted. Judges also face similar security threats. In many cases court decisions in terrorism cases are apparently pending due to such fears. One of the prime example of the failed criminal justice system is that alleged arrested terrorists of the Islamabad Marriott bombing and some other major attacks in Punjab Province were released by the courts for lack of evidence. The police had to put the alleged persons under “house arrest” subsequently to buy more time before challenging the decisions in higher courts.
    Prior the establishment of military courts, the major law governing the arrest, detention, prosecution, and sentencing of terrorism has been the Anti-Terrorism Act 1997 (‘ATA’). Section 6(1) of the ATA, amended in March 2013. ATA was passed by the second Nawaz Sharif government, in response to intensifying sectarian terrorist violence. To expedite justice, the ATA required that anti-terrorism courts (ATCs) conduct trials on a daily basis, to be completed within seven days. The value of the ATCs were questionable given that it largely relied on the same judicial system, prosecution service and investigation agencies as regular courts. Usually the district or sessions judges who are posted to ex-cadre posts, including as ATC judges, for which they have no additional training. Anti-terrorism prosecutors, too, are drawn from the provincial prosecution services, with no special training or protection, and dependent on the same standard of evidence as in all criminal investigations. Ironically, military is the only prime counter-terrorism actor in Pakistan but it cannot win the war on terror with a dysfunctional criminal justice system. While the general public seems happy on establishment of Military courts, the government has not yet taken any major steps to reform the broken civilian justice system