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Military Courts – Performance, Review and Challenges

by Imtiaz Gul

Military courts in Pakistan were set up in the aftermath of a terrorist attack on the Army Public School (APS) in Peshawar on December 16, 2014. The brazen attack had left at least 144 dead, 133 of them children.

Early January in 2015, an All Parties Conference (APC) had greenlighted the proposed 21st Constitutional Amendment, which came into effect on January 6, 2015.[1] It allowed changes to the Pakistan Army Act to extend its jurisdiction for speedy trial of cases under specified acts and provide the constitutional cover with a sunset clause of two years from the date of enactment. On January 9, 2015 Pakistan lifted the moratorium on the death penalty to pave the way for trials by the military courts.

Official statistics suggest that – as of December 2018 – ever since their inception over three years ago, the roughly one dozen military courts handled 717 cases and finalized 546 of them.[2] The courts awarded death to as many as 310 terrorists while 234 were awarded rigorous imprisonment of varied durations ranging from life imprisonment to 5-year imprisonment. Two accused had also been acquitted.

Performance

Out of the 310 convicts only 56 – 18 percent – could be sent to gallows. And these executions were carried out following completion of legal process which included their appeals in superior courts and rejection of mercy petitions both by the Army Chief and the President. The execution of the remaining 254 terrorists is pending completion of legal process in higher courts. This means that even despite fulfilling the entire string of legal formalities, a staggering 82 percent of the “jet black” terrorists could potentially escape the capital punishment.

Legal Challenges

The establishment of the military courts was not without controversy though. They faced legal challenges before the Supreme Court but the apex court – led by Justice Sheikh Azmat Saeed – on August 5, 2015 upheld the move with a majority ruling on the ground that it was a temporary phenomenon with a two-year sunset clause. It had, however, cautioned it could still review any judgment passed by the military courts. Later, in 2016, even a SC larger bench also endorsed trial of militants conducted by these courts.

But in an indirect challenge to the apex court, the Peshawar High Court (PHC) set aside convictions of 73 persons convicted on terrorism charges including suicide attacks and killing of security personnel and civilians.

In the 173-page judgment authored by Peshawar High Court’s (PHC) Chief Justice Waqar Ahmad Seth, the high court directed the government and law-enforcement agencies to set free all the convicts from internment centers if not required in any other case. The second judge in the bench was Justice Lal Jan Khattak.[3]

Are the Military Courts Essential?

In the aftermath of the APS, military courts emerged as a speedy consensus recipe for dealing with convicted terrorists. They were touted as the “need of the hour.” But, three years on, one wonders if the military courts have been effective at all as a deterrent to terrorists or law-breakers? If official statistics were any indicator the answer would probably be a no, particularly in view of the monumental anti-terror effort by all civilian and military institutions, and the ensuing encouraging results; a whopping nearly 86 percent reduction in terrorism-related violence through kinetic, non-kinetic and intelligence-based operations, in the last 4 years.

It will indeed be unfair to attribute this marked decline in violence to the military courts; much more than this small deterrent, it has been the relentless operations – Zarb-e-Azb and Raddul Fassad – in tandem with the counter-terrorism departments’ continued preemptive work that has led to the cumulative dramatic decrease in incidence of terrorism.

It is indeed the security paradigm shift at the highest civil and military levels that has produced results – which even the US Senator Lindsey Graham acknowledged during his January Islamabad visit.

Gradual efforts are underway to extricate the country from the baggage of the past four decades. This is the only way to make up for the lost economic development opportunities. We must recapture our economic relevance to the world. This is what the Chinese have been advising to Pakistan and the advice, it seems, is being well taken.

Now, particularly when the highest leadership is determined to “transform Pakistan from a security-centric to development-focused state,” the best course would be to discard altogether the debate on whether the military courts be revived or not. The real deterrence is the doctrinal shift that is distinctly visible within various tiers of political governance and the security apparatus.

If discussions with key decision-makers were any indicator, a conscious big course-correction, inspired apparently also by China, is underway with the objective of culling all the godzillas that the war on terror had given birth to.

In this encouraging context the military courts lose their sting as well as relevance. There is no need at all if the intention of sternly dealing with all rogue elements is sincere. Why should the government and the army concede on other critical fronts to the opposition just for the sake of reviving the military courts? The best answer to the military courts is immediate revision of the 170 year old Criminal Procedures Code (CrPC) and the Civil Procedures Code (CPC) to avoid long delays and facilitate quicker and inexpensive justice delivery.

Both the military and the government should better spend time and energy on devising strategies for de-radicalizing cadres of banned outfits. Long term salvation and deterrence lies in long-term, indigenous reform programme to wean radicals and potential allies of externally-driven terrorist outfits away from the violent path, not really in military courts, which are in conflict with principles of fairness, due process and justice itself.

The fight against militancy, terrorism and violent extremism will of necessity be long. But the country must not lose its constitutional, democratic and fundamental-rights moorings in the process.[4] The answer to the aforementioned challenges lies in reforming the dated criminal justice system, instead of clutching at straws such as the military courts. Pakistan must reform the CrPC for a more effective and speedy litigation and indiscriminate law-enforcement. An improved justice system will automatically make the aberrations such as military courts irrelevant.

—

Imtiaz Gul is the founder and Executive Director of the Center for Research and Security Studies in Islamabad. He is a noted security analyst, is also serves as the Editor National Security for The Daily Times.

[1] http://na.gov.pk/uploads/documents/1420800195_264.pdf

[2] Statistics acquired from Inter-Services’ Public Relations (ISPR)

[3] https://www.thenews.com.pk/print/388558-phc-releases-70-convicts-sentenced-to-death-by-military-courts

[4] https://epaper.dawn.com/DetailImage.php?StoryImage=10_01_2019_008_001