A perspective on Military Courts
Mohsin Raza Malik


Though the government has agreed ‘in principle’ to extend the tenure of military courts for another 2 years, there is hardly any political consensus among major parliamentary parties in the country over this issue. These military courts would cease functioning in March this year if their tenure is not specifically extended by the Parliament through a constitutional amendment. Following a decision made to this effect in its Central Executive Committee meeting last week, PPP has hinted at not supporting any move in the Parliament to grant another extension to military courts. PML-N, the main opposition party in the Parliament, is still indecisive on this issue. On the other side, speaking to a private news channel last week, DG ISPR Major General Asif Ghafoor favoured the continuance of military courts in Pakistan as a matter of “national requirement”. He, however, equally admitted that it was a prerogative of the Parliament to make any decision on the proposed ‘second extension’ of these courts.

It was an important point in the National Action Plan (NAP) to establish some military courts in the country for the period of 2 years. After the unfortunate 2014 APS Peshawar incident, the Parliament passed the 21st Constitutional Amendment in January 2015, paving the way for establishing a number of military courts in Pakistan primarily “for speedy trial of certain offences relative to terrorism, waging of war or insurrection against Pakistan and prevention of acts threatening the security of Pakistan”. Consequently, some 11 military courts were set up in the four provinces in Pakistan for 2 years. In March 2017, the Parliament extended the tenure of these courts for another 2 years. Meanwhile, the Supreme Court of Pakistan also formally validated the establishment of these military courts through a landmark verdict. According to ISPR, military courts have taken up 717 cases, and 345 terrorists have given death sentences in four years. So, the conviction rate in these courts has been pretty high compared to civilian criminal courts in the country.

The military courts established in Pakistan have constantly been criticized by various quarters for some reasons. Essentially rejecting the extraordinary-circumstances-warrant-extraordinary-measures reasoning, the critics find it hard to accord this ‘parallel judicial system’ with the tenets of human rights and due process of law. To them, the procedure adopted by the military courts is not strictly in accordance with the Article 10-A of the Constitution of Pakistan, which ensures the due process and fair trial to an accused person.

It is really unfortunate that even a practicing lawyer like me doesn’t have any strong argument against the establishment of military courts. The very state of our criminal justice system is anything but satisfactory. According to Rule of Law Index 2018 released by the World Justice Project, Pakistan stands at 81th and 106th positions in terms of criminal and civil administration of justice respectively – among 113 assessed countries around the world. Owing to numerous lacunas in our existing dispensation of criminal justice, the criminals and anti-state elements manage to go scot-free most of the times. This is the reason a known sectarian terrorist like Malik Ishaq could not be effectively convicted by any criminal court until he was killed in a police encounter in July 2015. On the other side, we have observed the plight of our judicial system in the Ayyan Ali case. If a judicial system cannot promptly nab and convict an ordinary criminal, how can it be relied to punish high-profile terrorists in the country?

As a matter of fact, just like in Pakistan, anti-terror measures and laws enacted and enforced in elsewhere in the world have been open to criticism. Moreover, they have also not been strictly in conformity with ideals of human rights and fundamental freedoms. Following the 9/11 incident, the US proactively reacted by taking some drastic steps, including the enactment of the Patriot Act and the Homeland Security Act. Like the Guantanamo Bay detention camp, it established more than some 100 secret prisons known as ‘black sites’ throughout the world outside the US territory and jurisdiction. The TADA and POTA in India, and the Prevention of Terrorism Act, 1997 in Sri Lanka are the similar controversial anti-terrorism laws.

In 1997, the Anti-Terrorism Act (ATA) was promulgated to contain the rising wave of sectarian terrorism in Pakistan. This enactment, however, failed in meeting the counter-terror challenges faced by the country in the post 9/11 period. Therefore, the much-debated Protection of Pakistan Act, 2014 was passed by parliament for this specific purpose. This law addresses the underlying issues necessarily associated with the very task of counter-terrorism in Pakistan. But sadly, owing to lack of the required degree of political will, seriousness and resolution on the part of the civilian government, this law could not be properly enforced in the country. The government hardly made any serious endeavour to set up special courts, a special prosecution agency or joint investigation teams required by this law. Nor did it make any arrangement to ensure the protection of judges, prosecutors and witnesses under this Act. Instead, it readily chose to make a constitutional amendment to establish military courts, shifting the burden of trial of terrorists to the military.

Aimed at improving the general quality of dispensation of justice in the country, the superior judiciary has been formulating various National Judicial Policies for a long time. These policies include measures like fixing time-frames for the disposal of different cases, capacity building of judicial officers, and guidelines for the efficient disposal of cases, eradication of corruption, improvement of the quality of investigation by the police, prison reforms, installation of video conferencing facility between the courts and jails etc. Unfortunately, all these NJPs have also failed to yield any fruitful results due to lack of sincerity on the part of the concerned stakeholders – the bench and the bar.

Former Chief Justice of Pakistan Mian Saqib Nisar had expressed his strong intention to substantially reform the country’s judicial system. But regrettably, he has only been interested in his self-styled “judicial activism” than anything else throughout his term in office. Some representative bodies of lawyers, political parties, and rights groups have been holding conventions and meetings against the establishment of military courts. But ironically, these groups have never raised their voice to overhaul, or otherwise improve, this troubled judicial system. More than four years have elapsed since the establishment of these courts but no pragmatic plan has yet been evolved to switch this system back to normal. Therefore, now it is quite useless to shed crocodile tears over this ‘demise of constitutionalism’.

In fact, the establishment of military courts more indicates the dilapidated state of our criminal justice than the aggravated security situation in Pakistan. This judicial system has miserably failed to promptly apprehend, try and punish individuals involved in the disruptive terror activities. So, the federal government just found it expedient to set up military courts. Certainly, trying a hardened criminal or militant in a court of law is the primary responsibility of the civilian government. And this responsibility should not be shifted to the military, which is already actively playing its due role to curb terrorism in the country.

Despite its flaws and shortcomings, the Protection of Pakistan Act 2014 can adequately deal with the judicial aspect of our current counter-terror challenges. It provides a pragmatic and effective judicial procedure to expeditiously decide the terror-related cases in the country. Therefore, the federal government should seriously endavour to enforce this Act in letters and spirit, rather than seeking a quick-fix solution in the form of military courts after repeatedly adopting a cumbersome procedure involving a constitutional amendment.

At this stage, however, in the absence of any functional judicial forum to replace military courts in Pakistan, it is not advisable to abolish these already-established special courts forthwith. This step would only favour the hardcore terrorists besides jeopardizing our ongoing counter-terror manoeuvring. Therefore, until the government evolves a viable alternative legal regime for this purpose, these military courts should be allowed to function as usual through another constitutional amendment. And the next 2 years must be a period of “transition”. During this period, the government can introduce a comprehensive legal regime to effectively deal with the terrorists of all shades, in addition to the ‘jet-black’ terrorists.