Military courts in Pakistan: A failed state syndrome
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Issue Net Edition | Date : 19 Mar , 2017

Pakistani media has reported that the political parties have agreed to revive the Military Courts for trying “hardcore” militants for a period of two years for which a Bill will be tabled in the National Assembly next week as the previous term of these Courts ended on January 7, 2017. This is widely seen as an appeasement to the ever growing influence of the military in Pakistani political structure.

Military Courts were set up in Pakistan with the passage of 21st Constitutional Amendment Bill 2015 in the background of December, 2014 attack on the Army Public School in Peshawar killing over 150, mostly children. However, this special measure was to come to an end in January, 2017 as the Constitution (Twenty-First Amendment) Act, 2015 provided a “sunset clause”, according to which, the provisions of the said Act shall remain in force for a period of two years from the date of its commencement.

This 21st amendment was made in Art 175 of the Constitution of Pakistan which establishes the High Courts and Supreme Court in the Islamic Republic of Pakistan. The Clause (2) of the above Article says, “no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.” But the 21st amendment includes the proviso in the clause (3) which says” that the provisions of this Article shall have no application to the trial of persons …………..who claims, or is known, to belong to any terrorist group or organization using the name of religion or a sect.”

This consensus to revive the Military Courts is a damning indictment of the Pakistani judiciary. The reaction of the Pakistani civil society to this development has been summarized succinctly by the Chairman of the Senate Raza Rabbani, “giving an extension to Military Courts for a couple of years would put the country back to square one. The nation would not have had to face the challenges and tough decisions that have made this extension essential if the 21st amendment had been brought up for debate and deliberation before the entire Parliamentary Committee two years ago. “This entire thing makes me feel despondent”, as he criticized the Government for not taking measures to reform the overall criminal justice system after the military courts were set up for the first time.

The extension of tenure of the Military Courts in Pakistan is indicative of the collective failure of civilian courts to impart criminal justice system. Pakistani newspaper Dawn writes “the reinstitution of military courts for civilians accused of terrorism is a democratic tragedy presented as a negotiated success — what the PPP and its allies have negotiated with the government amounts to the most feeble of excuses for what will become a continuing, deadly miscarriage of justice. Simply because the collective institutional wisdom of the country has decided that, at this juncture in the country’s history, the responsibility of sustaining an effective criminal justice system must be outsourced partly to the military does not make it a moral or principled decision. Indeed, politician after politician has argued for the necessity of military courts rather than address the inevitable damage they have caused and will continue to cause to the democratic project. “

The Pakistan People Party had forwarded few suggestions like the military courts will be presided over by the civilian judge and the right to judicial review by the High Courts under Art-199 of the Constitution, but it could not be agreed upon.

There is, however, a definite surge in the terrorist activities in Pakistan in this year. The Islamic state suicide bomber killed over 80 people on February 18, 2017 at the Lal Shahbaz Qalandar Dargah in Sehwan. Another suicide bomber attacked and killed 14 people at a protest rally outside the Punjab Assembly in Lahore. As per the South Asian Terrorism Portal, total 143 civilian, 52 security personnel and 172 terrorists have been killed in this year upto March 12, 2017 in Pakistan. However, this cannot be the justification for revival of Military Courts. It points to the failed state syndrome of Pakistan. The Military Courts operates on the theory of ‘presumption of guilt’ and not on the ‘ presumption of innocence’ as is the case with any other Court that believes in rule of law and natural justice. In the name of dealing with terrorism and for the sake of swift justice, no civilized society can create a parallel judicial system. There is an enormous possibility of partiality and bias in such Courts. How can an unbiased dispensation of justice possible from an
army officer sitting as judge and deciding the case of terrorist attack on an army school in which the children of his fraternity, colleague and friend have died? A person, who has seen his fellow soldiers or their family members killed, will be more than willing to send the accused to gallows. These Military Courts have handed down 161 death sentences in their last two years tenure of which 21 have been executed so far.

Another argument forwarded in favour of the Military courts is the reluctance of civilian judges to hear the cases of terrorism and the security and well being of those judges. This is also a candid admission of Pakistan as a failed state that it cannot provide security to its judges. Has the State withdrawn in Pakistan and abdicated its responsibilities.

It is true that before setting up of the Military Courts, in War against Terrorism, which has claimed almost 50,000 Pakistani lives, the judiciary did not rendered any meaningful conviction of militant leaders. In Pakistan a recent study conducted by Public Policy Review Centre (PPRC) reveals that in 16 high profile terrorist incidents in Rawalpindi/Islamabad, since 2001, including the Marriott bombing, the Anti-Terrorism Courts (and its appellate process), not a single conviction could take place. The judicial system of Pakistan released hardened criminals such as Hafiz Saeed, Malik Ishaaq and Mualana Abdul Aziz, after they were presented before the Courts.

The call for the establishment of Military Courts is simply an acceptance of the failure of Pakistani judicial system. Notwithstanding any argument in favour of the revival of Military Courts, they necessarily abridge the due process of law. These measures are usually the hallmarks of dictatorial and uncivilized society. This is indeed very unfortunate. The people and polity of Pakistan are left with no choice but to accept the regressive alternatives for the search of justice.

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The views expressed are of the author and do not necessarily represent the opinions or policies of the Indian Defence Review.

About the Author

Rakesh Kr Sinha

Former DIG and is associate member of Institute of Defence Studies and Analyses (IDSA). Presently Special Advisor to the Chief Minister, Govt of NCT of Delhi.

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