The phenomenon that is Pakistan’s military courts
The setting up of the military courts in 2015 as part of the National Action Plan in the backdrop of the horrendous tragedy at APS Peshawar was a step that enjoyed consensus among all the political forces, though the human rights groups and the legal community vehemently opposed the idea on various grounds. The rationale for creating military courts to deal with cases related to terrorism stemmed from the realisation that the trials of the terrorists in the civil courts had not created a deterrent environment because of delays, intricacies of the legal system and consequent acquittal of the terrorists involved in heinous acts. Another factor which was perceived to be hampering the conviction of the terrorists was the threat to the judges trying the cases of the terrorists and militants, by the militant outfits. It was therefore felt that the cases of the terrorists needed to be dealt with expeditiously and that, as such, this could only be done by setting up military courts because the military officers presiding the military courts were individually and institutionally better equipped to deal with the threats of the terrorist and militant groups and to dispense justice fearlessly.
The two years period for the military courts allowed under the 21st amendment expired in January 2017. However the government and the security establishment feel that there is a need to extend the mandate of the military courts to consolidate the gains made against the terrorists and keep the pressure on them until the threat recedes completely. The proposition has a great merit in view of the recent spate of terrorist attacks carried out by the terrorist groups based on the Afghan soil. The external dimension of the terrorist threat certainly poses a great challenge to the state. It is an extra-ordinary situation warranting extra-ordinary responses. Since February 2015, a total of 274 individuals have been convicted by military courts including 161 given death sentence out of which 12 have already been executed and 113 persons given jail terms for life. Though the number of the persons convicted by the military courts is not very large and only a few of them have been hanged but it has created the desired impact.
Although almost all the major political parties represented in the parliament have agreed to give extension to the military courts, the PPP and some smaller parties which do not have a reckonable presence in the legislature are opposed to the idea. The PPP has shown its conditional willingness to give only one year extension provided the military courts are presided over by the session judge appointed by the concerned Chief Justice; right of review by High Courts under article 199 of the constitution is ensured; accused are produced before the concerned court within 24 hours; the accused are given the right to engage a counsel of his choice and provisions of Qanoon-e-Shahadat 1984 are applied to cases of terrorism.
The idea of hybrid courts presented by the PPP and the other accompanying conditions virtually constitutes negation of the very purpose for which the military courts were set up. It is pertinent to mention that the power to review decisions of the military courts was already available to the civil courts and the accused also had the right to engage a lawyer to defend themselves. So the only issue to be debated regarding extension to the military courts should have been whether we still need them or not.
As far as the demands of justice and fair trial are concerned the issue has already been settled by the apex court in its decision of 29th August 2016 on the review petitions filed by families of 16 persons convicted by the military courts. The counsel for the convicts Asma Jahangir arguing before the five-member bench of the SC headed by the Chief Justice maintained that the trials before the military courts needed to be proceeded again after sharing complete evidence and the case record with the accused and also ensuring complete freedom to the accused to engage a counsel of his choice. The SC dismissed the claims that military trials had been in contravention with the standards of a free and fair trial guaranteed by the constitution. That was indeed an epic ruling and left no room for criticism of the military courts. It may be pertinent to point out that the SC had also dismissed petitions against the setting up of military courts and 21st amendment in recognition of the gravity of the situation in the national interest.
The bill regarding extension to the military courts prepared by the government and endorsed by the parliamentary parties has been moved in the current session of the parliament. The government side has already shown its willingness to consider proposals firmed up by PPP as it was trying to evolve a national consensus on the issue. The PPP has its own reasons to backtrack on the issue which it had supported when it came up in 2015, which is quite understandable. But the national interests and security of the state take precedence over everything else. All the parties represented in the parliament have to show solidarity with the government and the security forces who are trying to grapple with the existentialist threat to the country. This is an issue which has no room for politics of self-aggrandisement.
There are no two opinions about the fact that our judicial system needs complete overhaul to ensure free, fair and speedy trial to meet the demands of justice. That can be done through collective wisdom of all the political parties, who need to give top priority to this issue. Unfortunately this issue has never been the priority of successive governments. It is perhaps the best moment to earnestly deliberate on it and give the country a flawless judicial system. So instead of pouncing upon every available opportunity to settle scores with the government and trying to denigrate its achievements, the focus of the political parties in the opposition should be on engaging the government in a meaningful dialogue to reform the judicial system if they are really sincere in addressing the grievances of the people related to dispensation of justice currently in vogue. Serving the national interests should take precedence over all other considerations. Justice is the pillar on which the unshakable edifice of the state can be built and peace and tranquillity ensured in the society. They owe it to the masses and must not fail them.
