ISSN 2330-717X

Pakistan Revives Controversial Military Courts: Substitute For Judicial Reforms? – Analysis


By Mahendra Ved*

In a U-turn that is as remarkably swift as it is inexplicable, Pakistan’s civil and military leadership on January 9, 2017 decided to “hold consultations” on continuing with the military courts whose two-year life under a constitutional amendment had ended.

No reason has been extended save reiteration of the resolve to combat terrorism. Setting up of the courts was prompted by the worldwide horror expressed over the December 16, 2014 terror attack on the Army Public School in Peshawar in which 144 people, mostly students, were gunned down.

The government’s change came even as the proverbial ink on media criticism of the controversial measure was still fresh. Indeed, some web sites appeared to have hastily removed writings critical of the measure they called controversial.

The Inter-Services Public Relations (ISPR), the armed forces’ publicity wing, had over the last weekend put out a statement announcing the end of the military courts. The political parties had, by and large, welcomed it while sections of media had hailed the end of the measure pleading that “it should never be revived”.

Analyst Imtiaz Gul last week ruled out revival of the measure as it was an ‘embarrassment’ for the government and the country.

However, the decision to revive military courts was taken at a meeting chaired by Prime Minister Nawaz Sharif, and attended by the entire phalanx of government and military leadership. Attending along with key Ministers and advisors were the new top military brass, Army Chief Gen. Qamar Javed Bajwa and ISI Director Gen Lt Gen Naveed Mukhtar.

The government said consultations would cover political parties and effort would be made to ‘strengthen’ the move through parliament’s consent.
The story is developing and PPP, Imran’s PTI and Jamaat are opposing it, but has emphasised on the need for judicial reforms to obviate the need for an ad hoc measure like military courts.

Eleven military courts had been set up across Pakistan — three each in Khyber Pakhtunkhwa and Punjab, two in Sindh and one in Balochistan.
During the two-year period, 274 cases were referred to military courts. Of them, 161 persons were awarded death penalty (12 of them executed) and 113 were awarded imprisonment of varying duration, mostly life term.

Pakistan is the only country in South Asia to allow the military to try civilians. Military courts are not an anomaly. Several armies around the world, including India, have established their own systems for trying military personnel for military offences. However, Pakistan’s 21st amendment to the Constitution, coupled with the amendments made in the Pakistan Army Act 1952, placed it in an exceptional category that allows its military to take civilians to task behind closed-door trials.

While sections of the civil society, including human rights bodies, have been critical of the measure, it had been hailed by the general public where the military is perceived as decisive and non-corrupt. The sudden change of the government’s stance also drew mixed response.

An argument made in favour of the military courts was that in several instances, the civilian courts’ judges were openly threatened by Islamic militant groups such as the Tehrik-e-Taliban Pakistan (TTP) and the Lashkar-e-Taiba (LeT). Several lawyers have been killed for prosecuting the extremists, and many judges have fled the country after receiving death threats.

In Pakistan, it is not easy to proceed against Islamists; in the past, liberal politicians, including then Punjab Governor Salman Taseer, were killed for speaking against controversial blasphemy laws and in favour of secular legislation. The perpetrators of these crimes have still not been brought to justice.

But rights activists say that does not justify the military’s involvement in civilian judicial matters. The Pakistani military already has more say in domestic and foreign policy matters than the civilian government.

Human rights activist and leading lawyer Asma Jahangir had in last June demanded before the Supreme Court that all cases decided by the military courts be re-tried.

The principal criticism against the military court trials is that they are not transparent. The officers who preside are from the general chain of command and are not necessarily law graduates. There is no guarantee of a detailed written judgment at the conclusion of the trial. The reasoning behind the trial and the verdict is not explained. The family members of the convicts, some of whom were first reported ‘missing’, were not informed of the verdict.

The International Commission of Jurists (ICJ) -— a collection of 60 judges from around the world -— kept a critical eye on Pakistan’s justice systems. In a strongly worded briefing paper it published last year, the ICJ claimed that “the government and military authorities have failed to make public information about the time and place of their trials; the specific charges and evidence against the convicts; as well as the judgments of military courts including the essential findings, legal reasoning, and evidence on which the convictions were based”.

The government’s move to reinstate the military courts would need to be viewed in the background of the recent changes at the top in the military brass and the Supreme Court.

While critics have lamented absence of any move at judicial reforms, the military courts were supposedly established at the instance of Gen. Raheel Sharif who retired last month as the most popular chief the Pakistan Army has had. His role in setting up these courts was cited while opposing earlier moves to give him an extension or to elevate his rank to ensure his continuance in office.

It may be safe to assume that the revival of military courts is at the collective instance of the army, including Gen. Bajwa, and realisation that despite over two years of Zarb-e-Azb, the military operation against the militants, the ground reality has not substantially changed to allow doing away with a military role in delivering justice to civilians.

*Mahendra Ved is a senior journalist and President, Commonwealth Journalists Association (CJA). Comments and suggestions on this article can be sent to [email protected]

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