Justification for continuity of military courts
Mohammad Jamil
12/7/2018

 

SINCE joining the war on terror, Pakistan faced death and destruction more than any other country of the region. Half-hearted measures were taken to rein in militants by various governments because consensus could not be reached on the measures to eliminate the spectre of terrorism. However, after APS attack in December, 2014 entire nation demanded of the government to take strong action against militants; it was in this backdrop that National Action Plan was formulated, and military courts were established to ensure speedy justice. A section of the liberals and a few religious parties had opposed the establishment of military courts. However, better sense had prevailed because the country was going through extraordinary situation and circumstances; therefore extraordinary decisions had to be taken.

Execution of some very hardcore terrorists by the military courts helped break their organizational network as well as infrastructure.
Anyhow, it is logical that till the completion of Radd-ul- Fasaad, the government should extend the period of military courts, as cases are disposed of in weeks and months without long delays by the military courts as compared to civil courts that take years and sometimes decades. The procedure of appeals is not impeded by the rigmarole of the conventional criminal justice system, and as a result convictions are not unnecessarily forestalled. However, this objective does not appear to be fully met perhaps due to the role of the judicial review. One of the arguments in favour of military courts has been to create fear among the terrorists, criminals and to dispose of their cases in weeks and months without long adjournments sought by the lawyers of the criminals. Hence, delays in dispensation of justice suit militants as our jails are said to be safe haven for them.
By virtue of being a security institution, and fighting war against terrorism itself, no other institution understands those involved in terrorism ó convicts and charges against them better than the Army does. Furthermore, Army is well trained to hold military courts and carryout trials as part of Pakistan Army Act-1952. Previous governments had brought some reforms in improving police, prosecution, protection of witnesses and certain judicial restructuring; however, certain major steps were not taken. Military courts were first established in 2015 for two years, and had expired on January 7, 2017, after the expiration of a sunset clause included in the legal provisions under which the tribunals were established. The then government did not make arrangements to extend the tenure of the courts in time; however, on 31st March 2017 the then President Mamnoon Hussain gave his formal assent to the Pakistan Army Act 2017 and the 23rd Constitutional Amendment Bill.
These two pieces of legislation aimed at granting legal cover to military courts after they were cleared by Parliament. The courts were subsequently revived for two years and given legal cover from the day of their expiry. As COAS General Qamar Javed Bajwa said the other day that war on terrorism continues, it is hoped that the government would start the procedure to extend the military courts for another two years. One of the main reasons to justify the establishment and continuity of military courts is that lives of civil judicial persons/judges were undeniably in danger when dealing with extremists. Therefore, the decisions of the judges were likely to be influenced, at times, in favour of accused. At a number of occasions, terrorists who were involved in serious crimes and convicted by military courts were acquitted by different civil courts, with the result that terrorists could easily flee.
One needs to reckon the efforts with which such dangerous elements are grabbed and tried in military courts. Hence, a constitutional amendment is also required in this regard. Many military operations and wars in history failed in the culminating stage or post-conflict phase due to the inability of the government to take care of socio-economic side and to establish the political writ of the state. Furthermore, military courts lessen the pressure and risk factor on the life of civil judicial elements. After the Pakistanís civil-military leadership achieved consensus on operation Radd-ul-Fasaad (RuF), the nation would not allow frittering away the fruits of the efforts and the sacrifices rendered by thousands of soldiers and around 70,000 civilians. Military courts have been instrumental in helping the state in providing a legal backup to military operations, and their efficacy is well established.
Military Courts are not something unique to Pakistan, as all states use such legal framework in emergencies. Threat of hybrid war will continue to loom large on Pakistanís horizon if the pillars of state mentioned above cannot work in a synchronised manner. Our fault lines of provincialism, sectarianism, ethnicity and gap between the haves and haves-not are real and only a unifying regimen and political dispensation accommodating all stakeholders can make us walk through this minefield of challenges. According to a report, ratio of punishment to terrorists was very low as during 2007 to 2012 only 5 per cent terrorists were convicted in various crimes and hundreds of dangerous terrorists wanted in suicide attacks were set free by the courts because nobody dared to stand as witness against the ruthless terrorists, and courts rejected evidence provided by security agencies against terrorists. The rationale behind the institution of military courts is that these are efficient in handing out convictions.