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Pakistani Military Courts Imperil Judiciary And Rights

Sher Muhammad Khan
Sher Muhammad Khan

Sher Muhammad Khan, a former Pakistani judge and human rights campaigner, finds nothing to praise about the new constitutional amendment that establishes military courts to try terrorism suspects. Khan says the new courts are an expression of no-confidence in the judiciary and endanger the rights guaranteed by the country's constitution.

RFE/RL: How do you assess Pakistan's 21st constitutional amendment, which was adopted by parliament last week to establish military courts for terrorism suspects?

Sher Muhammad Khan: It's just eyewash. It won't treat the basic disease that afflicts our country. In my view, punishment alone is not the solution to resolve the complex problem of terrorist violence. Basically, our state has to amend its policies, which have deep roots [in the security thinking] for decades.

[Pakistan's] past policies are responsible for its current predicament. The adoption of this new constitutional amendment won't help restore peace in the country.

RFE/RL: As a lawyer and a former judge, do you view the creation of the military courts as an effort to create a parallel judiciary?

Khan: Basically, it appears so. Apparently, they [the government and the military] have expressed no-confidence in the judicial system of the country. They, however, seem to have ignored a crucial fact, which is that judges usually decide criminal cases based on the evidence collected by the prosecution. The prosecution is always controlled by the government. So if they cannot collect solid evidence against the accused, the court has no option but to acquit.

In the new courts, it seems no evidence will be required because the military courts are not bound by the Criminal Procedure Code, the Evidence Act or any other statuary law, and there is no record of the case.

RFE/RL: The Pakistani government says the military courts are aimed at exclusively dealing with hardcore militants. Do you see these courts as prone to misuse because of Pakistan's long history of military domination?

Khan: It is right to think that these laws will be misused and that many people who are not terrorists or involved in anti-state activities will be dragged into these courts. We have many examples of similar laws being misused in the past. A law called the Defense of Pakistan Rules [in the 1960s] was used to persecute political activists and leaders by the military and civilian governments. So there are serious apprehensions that the new law could be used against people who are not terrorist or anti-state.

RFE/RL: Do you see these laws being abused in the southwestern Pakistani province of Balochistan, where there is a history of abuses by separatist militants and state actors?

Khan: Of course. These laws are basically aimed at people who are waging war against the state. The Baluch insurgents also fall in the same category. Definitely, they will be tried under the same laws. I think it will create more complications for our country.

In Balochistan, people are demanding their rights, and for that they have been driven to a particular end. This is because they do not see a light at the end of the tunnel, and they have waged a war against the state.

RFE/RL: You've worked as a human rights campaigner for decades. Do you think the military courts violate the fundamental human rights of Pakistanis?

Khan: Exactly. Every citizen in our country is entitled to a fair trial. This means that when an individual is charged with a crime ― from that day through the investigations and the trail ― he should be treated fairly. Even after the sentence, an individual has the right to appeal [to the higher courts] against conviction.

But under the new constitutional amendment, all of these rights have been snatched from individuals. So this law is against the fundamental rights enshrined in the Pakistani constitution.

RFE/RL: Why has Pakistan's powerful military faced little accountability despite key security lapses such as the 2011 killing of Al-Qaeda leader Osama bin Laden?

Khan: It's very simple, because "might is right" [in Pakistan]. The military has the force and is organized, so no individual or institution is capable of confronting it.

RFE/RL: How exactly will the military courts violate fundamental rights and the right to fair trial guaranteed by the Pakistani supreme law?

Khan: Treating an individual differently because of allegations by the prosecution or the state such as accusing them of using religion or sectarian thinking to foment terrorist activities is a very vague definition.

There are many examples in our neighboring country India. It has faced many similar insurgencies but has not created similar [military] courts. Instead, it changed its policies and dealt with such crises politically. It also addressed grievances economically. But our ruling clique does not think along those lines.

RFE/RL: The Pakistani government argues that the current circumstances necessitate extraordinary steps. They point to the U.S. Patriot Act and the Guantanamo Bay Detention Camp after 9/11 and the harsh antiterrorism laws India enacted in recent decades?

Khan: Yes, there are such laws, but they were mainly applied to enemies and aliens in those countries. For example, most of the Guantanamo detainees were picked up from the battlefield in Afghanistan.

In Pakistan, [during the past few decades] we had invited many foreigners to wage war against our neighboring countries. Now we will use these new antiterrorism laws against our own people ― sometimes because of political differences. I think if issues such as Balochistan are dealt with politically, there will be no insurgency.

RFE/RL: You mentioned foreigners being invited to Pakistan by which, I think, you meant Al-Qaeda, the Islamic Movement of Uzbekistan and allies. Are these groups still active in Pakistan, and what should the country do to defeat such transnational terrorist networks?

Khan: These people relocated to Pakistan's tribal areas [after 9/11]. These people murdered hundreds of our tribal leaders. Now the people of the tribal areas need to be empowered [against the terrorists]. They should be given fundamental rights, all the laws of the country should be implemented there, and foreigners who were living there illegally should be pushed out. During the past decade of unrest there, some of these foreign militants were killed but not a single terrorist has been arrested.

RFE/RL: So are you saying the best way to fight terrorism and extremism is to empower people by giving them more rights and not implement draconian laws?

Khan: From the very beginning, we have given our students a syllabus based on hatred and bigotry. Many religious schools in Pakistan are being funded by neighboring Islamic countries and are not being scrutinized properly. In addition, we are thinking against our neighboring countries, particularly India, most of the time. We have differences and conflicts with India that are economic and territorial in nature. But we are using religion against them. We now have to curtail and change such deep-rooted thinking and adopt a positive and pragmatic outlook by not involving religion in our conflicts.