The 21st Amendment, passed by the two houses of parliament on January 6, established military courts to prosecute civilians charged with terrorism and sectarianism. The major argument in favour of establishing military courts is that terrorist activity by the Taliban and their allies and sectarian groups has intensified to such an extent that normal legal and judicial procedures cannot cope with it and that such an extraordinary situation needs special measures to bring terrorist activity under control. The exception to the existing constitutional and democratic system is said to be necessitated by the highly troubled internal security situation. This is a return to the days of the doctrine of necessity in a new context and through a new method. The established constitutional and democratic norms have been set aside because of the perceived demand of the situation. In the past, the Supreme Court invoked the doctrine of necessity to give judicial legitimacy to military rule. This time, political leaders have provided a legal basis to the expanded role of the military on the pretext of the exceptionally troubled internal security conditions, although no one referred to this doctrine specifically.

These military courts will function for two years. The civilian federal government will decide the cases to be submitted to military courts for adjudication. The provincial governments can also recommend cases to the federal government that it could then send on to the military courts. Three factors have led political leaders to adopt this extraordinary approach to deal with internal terrorism. First, the distress caused by the terrorist attack on the school in Peshawar created a broad-based consensus in Pakistan to adopt a firm approach to fight the Taliban and other militant groups.

Second, the army was already pursuing a tough military action against the Pakistani Taliban and their local and foreign allies based in North Waziristan. It launched another security operation in Khyber Agency and pursued limited action in other tribal areas. The success of these security operations increased the confidence of the people in the military’s capacity to control terrorism. This was the major reason that the setting up of military courts did not face much opposition at the popular level or in the parliament.
In the immediate aftermath of the Peshawar killings, the army top command took the lead in prodding the leaders of the ruling PML-N and other political parties to set up military courts because it was convinced that the existing anti-terrorism courts and special courts had not managed terrorism cases in an expeditious manner. The straight-forward statements of the army chief at the All-Parties Conferences in December 2014 and January 2015 had a sobering impact on political leaders, who agreed to set up military courts.
Third, the civilian government led by Prime Minister Nawaz Sharif showed no interest in making a commitment towards improving civilian legal and judicial procedures to expeditiously deal with terrorism cases. It lacked determination to do so and readily agreed to the army’s demand for military courts and consented to greater engagement of the army in the management of internal security affairs both, at the federal and provincial levels.

The army corps based in the provincial capitals are now part of the new joint civil-military arrangements for dealing with internal security issues. According to official reports, about 10,000 army personnel are helping the federal and Punjab governments in internal security matters. Army troops have been mobilised to provide security to a number of prisons where activists of various Taliban groups or other violent sectarian organisations are lodged. Civilian authorities are expected to seek more help from the army for internal security.

The current reliance on the army for controlling terrorism is a double-edged sword. It can strengthen the civilian democratic political arrangements or totally dislodge them. The setting up of military courts for two years for countering terrorism gives some breathing space to the civilian government. It needs to use this time to upgrade its investigation, prosecution and judicial arrangements, as well as implement all the agenda items of the National Action Plan (NAP) for countering terrorism. If this happens, the civilian government will retrieve the political initiative. If it fails to strengthen civilian institutions and processes for countering terrorism, the future of the current civilian democratic system will become more uncertain.

The major dilemma faced by the Nawaz government is that some religious parties sharing religious denominational identity with the Taliban or having some sympathies for militancy are contesting the notion of military courts. The JUI-F, led by Maulana Fazlur Rahman, has criticised the constitutional amendment which, in his view, has a strong bias against religious groups. The Jamaat-e-Islami has also maintained a similar position. Maulana Fazlur Rahman has threatened to launch street protests if the perceived anti-religion bias of the amendment is not done away with. He will, however, find it difficult to obtain the support of all religious parties for a sustained agitation. Actually the Maulana and other religious activists are upset by the agenda items of the National Action Plan that envisage monitoring of madrassas, mosques and related religious-cum-political activities. Most religious parties derive major support from these sources and often summon madrassa students to show their street power. These groups are expected to use their formal and informal links with the ruling PML-N to convince the federal government not to pursue the agenda items in the NAP pertaining to religious activism, madrassas, mosques and published religious material.

If the Nawaz government yields to these pressures, it will be viewed as another evidence of its incapacity to manage religious and militant groups. This will strengthen the perception in society that the army will have to take the lead for implementing all agenda items of the NAP for elimination of terrorism. Such a perception will further erode the credibility of civilian institutions and processes.

Published in The Express Tribune, January 12th, 2015.