Pakistan high court upholds military justice, death sentences for civilians

The horrific 2014 slaying of more than 120 children in a Peshawar school created pressure for terrorist suspects to be tried in military court.

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Pakistan’s top court ruled Wednesday that civilians accused of terrorism can be tried in military courts, significantly expanding the jurisdiction of military tribunals and raising concerns among human rights activists about the balance of military and civilian power.

The decision upholds a parliamentary move earlier this year to allow civilians to be tried and given the death sentence by military courts over the next two years. It is unclear when the secretive trials will begin again after being suspended by the Supreme Court’s review.

The government has been under pressure to crack down on militants following a Taliban attack on a school in Peshawar last year. Some 147 people, almost all children or young teens, were killed in what appeared to be retribution for earlier military operations against the Taliban, according to The Christian Science Monitor.

The Monitor also pointed out that while the school was run by the military, most students were not from military families. It was the worst attack in Pakistan since 2007.

Soon after the attack, the government took action to crack down on militants, lifting a ban on executions that had been in place since 2008, The Associated Press reports.

Since then, some 200 people have been hanged, many of whom were not convicted on terrorism-related charges. Parliament also established that military courts could oversee terrorist cases following the Peshawar attack.

When the parliament established the military courts for terror cases, the prevailing argument was that civilian courts are not able to successfully try and convict terrorist suspects since such suspects are able to intimidate witnesses, prosecutors and judges.

In one example, judges would have tea and cookies brought to one of Pakistan's most feared Islamic militants, Malik Ishaq, during past court proceedings against him. Ishaq was gunned down and killed while being transported in a police van last month.

Also, scores of judges and prosecutors have pulled out of almost 200 cases, including some 70 trials over the killings of minority Shiite Muslims, against Ishaq apparently fearing for their own lives.

Today's ruling is seen as a victory for Prime Minister Nawaz Sharif and his ruling party. Apparently referring to Taliban behavior, Mr. Sharif said that "Unusual situations warrant unusual measures.” He said he believed the promise of a military trial could help deter future terrorist attacks.

Despite the argument that terrorists can manipulate or intimidate the civilian courts, serious concerns are being voiced over the potential for rights violations in military trials. Mr. Sharif said the courts would only target “hard-core terrorists,” but evidence is already emerging that challenges that assertion, Reuters reports.

Former military legal adviser Muhammad Akram said the military sometimes prevented suspects from having lawyers, making convictions easier.

Before the January amendment, the two main charges the military could bring against civilians were sedition and spying, he added.

Akram said he knew of more than 100 cases where the military used the charges to bypass civilian courts and try a defendant suspected of a different crime….

In another case reviewed by Reuters, Nisar Javed Fakhri was convicted of the rape and murder of an officer's wife. Fakhri, a low-level soldier working as a cleaner, was tried three times until his life sentence was increased to the death penalty.

Forensic evidence was inconclusive, so his conviction rested mostly on evidence from a co-accused who contradicted himself three times about whether Fakhri was present.

Both men say they were tortured. The co-accused ate a shattered light bulb to try to kill himself in custody.

"I had accepted my involvement in the occurrence due to torture," Fakhri said at his third trial. "I was innocent."

Pakistan’s move toward implementing military trials for civilians could be a step back for a country that has struggled to establish independence from military influence, some analysts say. The first non-military handover of power in Islamabad took place only two years ago, for example. 

A report by the International Crisis Group last month noted that, “The militarisation of counter-terrorism policy puts at risk Pakistan’s evolution toward greater civilian rule, which is itself a necessary but not sufficient condition to stabilise the democratic transition.”

The report acknowledged that having a “coercive” counterterrorism policy can make targeting militants more efficient, but stated that Pakistan won't make great inroads in curtailing terrorist activities without structural, democratic reforms.