NationalVolume 12 Issue # 17

Military courts again

Military courts – a highly contentious and controversial issue – have been given another lease of life. After a series of hectic discussions, the government and opposition last week agreed to revive  military courts for a two-year period until January 2019. In January 2015, Parliament passed the 21st Amendment allowing constitutionally protected military courts to try terrorism suspects. The amendment legalised military court trials of terror suspects for a period of two years. This was immediately after terrorists killed 144 people, mostly children, at the Army Public School in Peshawar. The move followed an All Parties Conference which gave the green light for the amendments to the Pakistan Army Act to extend its jurisdiction for speedy trial of cases under specified acts and provide the necessary constitutional cover of two years from the date of enactment.

The amendment drew strong criticism from various quarters, with PPP leader Raza Rabbani publicly announcing amid tears that  he had voted against his conscience. Since February 2015, a total of 274 individuals have been convicted in military courts. So far, the army has sentenced 161 individuals to death, 12 of whom have been executed and 113 have been given jail terms (mostly life sentences). There are roughly 11 military courts that have been set up across Pakistan; three in KP, three in Punjab, two in Sindh and one in Balochistan. Fast forward to 2017. Military courts expired on January 7, this year as per a sunset clause included in the legal provisions under which the tribunals were established. Pakistan Peoples Party strongly opposed the government’s draft for the renewal of military courts. An impasse developed between the government and the PPP on the future of military courts which finally ended when the latter agreed to a conditional extension of military courts for two years and withdrew five of the nine recommendations it wanted included in the draft bill. The withdrawn proposals included limiting the term of military courts to one year and that the courts should be presided over by a sessions judge, to be appointed by the chief justice of the respective high court.

PPP has been an unhappy, reluctant partner to the deal. Leader of the Opposition in the Senate Aitzaz Ahsan has described the two-year extension to military courts as a cup of hemlock which they had to drink after strong assurances by the government that it would no more depend on these courts. But the saving grace is that government and opposition parties have decided to form a high-powered parliamentary committee, consisting of leaders from all parties in the National Assembly and Senate, to oversee government efforts to enact necessary judicial reforms to strengthen the criminal justice system, monitor the implementation of the National Action Plan (NAP) and other matters related to national security.

There are arguments both for and against the revival of military courts. Critics question the mystery surrounding military court trials: no one knows who the convicts are, what charges are brought against them, or what the accused’s defence is against the allegations levelled. Proponents say the courts act as an “effective deterrent” for those considering violent acts. Another argument is that  giving an extension to military courts for a couple of years would put the country back to square one.  The fact of the matter is that the government miserably failed to take measures to reform the overall criminal justice system after the military courts were set up for the first time. For, had the government actually implemented the 19 points of the National Action Plan in letter and spirit, there would have been no need to resort to military courts again. Two years was a long enough period for restructuring the anti-terrorism courts so that they could adequately deal with terrorism cases and deliver quick justice as envisioned in the National Action Plan.

Military courts were supposed to be a stop-gap arrangement, as the existing anti-terrorism courts were not fully geared to deal with cases involving militants captured during military operations in the tribal areas or those participating in terrorist activities in the rest of the country. Their number was said to be in the thousands and many of them had been in the custody of security forces for years without being produced before any court of law. A flawed system of investigation and lack of evidence that is difficult to obtain in cases of terrorism allowed many hardened terrorists to get away without conviction. The threat to the security of the judges and investigators and their families was also the reason for the extremely low conviction rate in militancy-related cases. All these factors helped win the case for the establishment of military courts. However, eminent jurists are of the opinion that military justice is not the answer to the problem of terrorism. On the contrary, the extension in the term of military courts is likely to further delay the much-needed criminal justice system reforms, particularly the plan to upgrade the anti-terrorism courts.