HRW's view of the 21st Amendment decision in Pakistan

Human Rights Watch has posted this brief but grim assessment of the decision upholding Pakistan's 21st Amendment military courts:

Rule of law in Pakistan took a sinister step backward today when the Supreme Court upheld the use of military courts to prosecute terrorism suspects. The result? A green light by Pakistan’s highest judicial authority for secret military courts that can prosecute civilians and sentence them to death. 

The Supreme Court’s majority ruling validates a constitutional amendment, passed on January 7, 2015, which permits the establishment of military courts empowered to try civilians for a two-year period. Military courts are a key component of Pakistan’s 20-point National Action Plan against terrorism. They are also a part of an official response, along with coerced repatriations of Afghans living in Pakistan and an end to the government’s unofficial moratorium on the use of the death penalty, to last December’s horrific attack by the Pakistani Taliban splinter group Tehreek-e-Taliban on a school in Peshawar that left at least 148 dead – almost all of them children. 

The Pakistani government’s decision to use military courts to prosecute terrorist suspects was a de facto admission that the country’s civilian criminal justice system is broken. Authorities have sought to justify military courts as necessary for the “speedy trial” of terrorist suspects and to circumvent perceived “loopholes” of the civilian justice system. Such criticism is not without basis. Pakistan’s civilian courts have a well-earned reputationfor prosecutions undermined by both corruption and a glacial pace.

But if the Pakistani government’s diagnosis of the problem was correct, its prescription to address it is wrong-headed and dangerous. Empowering military courts to address the failures of the civilian justice system will have a long-term negative impact on Pakistan’s struggle to create a professional and independent judicial system. As a party to the International Covenant on Civil and Political Rights, Pakistan is obligated to uphold and take measures to ensure basic fair trial rights. Governments may not use military courts to try civilians when the regular courts are functioning. The United Nations Human Rights Committee has stated that “the trial of civilians in military or special courts may raise serious problems as far as the equitable, impartial and independent administration of justice is concerned.” 

The government of Pakistan needs to display resolve in building up the capacity of the civilian judiciary to prosecute terrorism cases. Seeking a quick fix through the use of military courts is a perilous non-solution that will pose a long-term threat to the rights and safety of the Pakistani people.

The Supreme Court's decision is what it is. The question is what happens next that could alter the equation. There is no reason to expect more or better from either the executive branch, which decides which cases will be sent to the military courts, or the legislature, which was a willing and necessary partner in the creation of the new military courts. International pressure? It is unlikely to have any impact. The media? There's been some full-throated opposition to the 21st Amendment, but not enough to make a difference in public opinion much less the actions of public officials. So the only game in town is, once again, the Supreme Court, which has staked out a claim to the power to review actions of the new courts. Will there be bite as well as bark? Will the government resist the court's exercise of that power? Is the country one case away from another legal crisis?