Home Military Courts in Pakistan: Army Should be the Enabler, not the Provider of Justice

Military Courts in Pakistan: Army Should be the Enabler, not the Provider of Justice

There comes a moment in every nation’s life when the banality of evil and routinised violence becomes unbearable, when it is shaken to the core by the destruction perpetrated by demons it has become accustomed to. In Pakistan it came on 16th December, 2014, when Pakistani Taliban attacked an army-run school in the north-western city of Peshawar, killing 141, mostly children. In the widespread revulsion and public outcry that followed, Pakistan instituted its 20-point National Action Plan (NAP) which was meant to be a comprehensive list of actions to be taken by the state and law enforcement agencies to uproot extremism and terrorism from the country.

It is indeed ironic that acts of barbarism demand the collective conscious to be satiated by bloodthirsty revenge. Lifting of moratorium on death penalty and inauguration of secret military courts to try civilians became the first two points of the NAP. The latter was accomplished through the 21st Amendment to Pakistan’s constitution and amendments to the Army Act, 1952. In contravention of international standards of criminal justice, Pakistan’s international obligations and former Supreme Court judgments within the country, the military was allowed jurisdiction over civilians to try offenses related to terrorism[i]. While the Supreme Court upheld the legality of the 21st amendment in August 2015[ii], Human Rights activists and eminent jurists came out in criticism. Echoing the sentiments of many, Waris Husain, an expert on Pakistani legal issues, said, “while the military courts may satisfy some in the corridors of parliament or even in the court of public approval, the new legislation fails to tackle the reasons why the insurgency has come so far in the first place, and creates a class of citizens who are not entitled to their constitutional rights”[iii]. There are political, constitutional and humanitarian problems associated with having this parallel system of courts- it infringes upon the constitutional principle of separation of powers (by giving the executive the power to adjudicate); cedes even more power to the army in a country where the men in uniform call the shots on issues of national importance and further weakens the position of the civilian leadership; gives unchecked judicial power to the military with the scope for misuse; and creates a category of citizens who are beyond the pale of human rights protections. Citing violation of right to a fair trial, those convicted by military courts have appealed to the Supreme Court for a retrial[iv].

On 7th January 2017 the ‘sunset clause’ in the 21st amendment took effect and brought to an end the two-year trial of these exceptional courts. In its official statement announcing the same, the Inter-Services Public Relations, media-wing of the Army, reiterated the reasons for their creation- “special constitutional arrangements were made to effectively check the terrorists and terrorism … routine judicial system was under stress wherein judicial set ups and judges were also subjected to act of terrorism”[v]. Of the 274 individuals convicted by military courts, 161 were sentenced to death and the remaining given varying jail terms, mostly life sentences. The political leadership debating the future of the military courts would be well advised to neither unquestioningly accept the ‘desperate times call for desperate measures’ argument, nor get carried away by the idealistic, though well-meaning, demands of certain sections of the civil society. It is imperative to maintain the delicate balance between ‘order’ and ‘justice’ by ensuring a fair trial for all criminals (including alleged terrorists) by constitutionally designated authorities (judiciary as opposed to military) in a just manner, while appearing strong and intolerant towards terrorism. This would require extraordinary steps from the security establishment, though not the kind it is used to. By providing adequate security and protection to judges that take on the extremists, army should become the enabler, not the provider, of justice. In this regard, the Maxi-Trial against the Sicilian mafia could prove instructive. Known in Italy as the ‘trial of the century’, it took place in a specially built bunker courthouse and the Chief prosecutor Antonino Di Matteo was given round the clock security of more than 20 bodyguards. The military cannot give security as a reason to step into the shoes of judiciary, as it has on numerous occasions. If extremism is in fact the biggest threat facing Pakistan today, the Army will have to provide a facilitating environment for the judiciary to do its job instead of assuming the mantle themselves.    

 

 

References

[i] “Military Injustice in Pakistan”, Briefing Paper, June 2016, International Commission of Jurists

[ii] “Military courts get Supreme Court nod”, 5th August 2015, DAWN

http://www.dawn.com/news/1198533

[iii] “Pakistan’s  military trials create ‘parallel system of justice’”, 7th January 2015, DW

http://www.dw.com/en/pakistans-military-trials-create-parallel-system-of-justice/a-18174796

[iv] “Asma asks SC to order retrial in all cases heard by military courts”, 21st June 2016, DAWN

http://www.dawn.com/news/1266242

[v] “Military courts stop functioning on expiry of mandated period: ISPR”, 8th January 2017, DAWN

http://www.dawn.com/news/1307196/military-courts-stop-functioning-on-expiry-of-mandated-period-ispr  

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