On 6 January 2015, the National Assembly of Pakistan approved the 21st Constitutional Amendment and Pakistan Army (Amendment) Bill 2015. The President of Pakistan, Mr Mamnoon Hussain, gave assent to the Bill a day later, making it into a law [i]. With this, law makers in Pakistan gave constitutional validity to trial of offences relating to terrorism by military courts and amendment to the Pakistan Army Act, 1952 extended the jurisdiction of military courts to try terror suspects. The Bill, to be in force for two years, was unanimously approved by all 247 members present in the House, with just two groups, the Jamaat-e-Islami (JI) and Jamiat Ulema-i-Islam-F (JUI-F) abstaining from the vote.
Repeated terror attacks across Pakistan have induced a sense of hopelessness in the country…
The Bill provides for entering the Pakistan Army Act 1952, the Pakistan Army Act 1953, the Pakistan Navy Act 1961 and the Protection of Pakistan Act, 2014 in the First Schedule of the Constitution. The First Schedule contains laws which are exempt from the operation of Article 8 (1) and (2) of the Constitution which relate to fundamental rights. As per the provisions of the 21st Amendment, the judgements delivered by the Special Courts are not open to review by either the nations High Courts or the Supreme Court. An amendment to the Pakistan Army Act 1952 also provides the federal government the power to transfer cases related to terrorism, pending in civil courts, to a military court. In such cases, it is not necessary to record evidence which has already been recorded. Activities which can be tried under the Military courts are vast and varied, including trial of those belonging to any terrorist group or organisation, waging war against the state, attacks on civil and military installations, kidnappings for ransom, possession, storage and transportation of explosives, suicide jackets and the like within or outside Pakistan. As per the statement of the objects and reasons, ‘an extraordinary situation and circumstances exist which demand special measures for speedy trial of offences relating to terrorism, waging war or insurrection against Pakistan and prevention of acts threatening the security of Pakistan’.[ii]
The Bill is a fallout to the outrage felt by the nation over the brutal killing of 132 school children of the Army School, Peshawar on 16 December, 2014. Repeated terror attacks across Pakistan have induced a sense of hopelessness in the country, and led to a feeling that only drastic action could pull the country out of the cess pool if finds itself in. An aspect of terrorism often overlooked is the fact that it is almost impossible to get a conviction against people involved in terrorist activities. Witness do not come forward to give evidence and judges too, fearing for their life and limb and the security of their loved ones are loathe to pronounce adverse judgments on the accused, despite the evidence available. The purpose of setting up military courts was thus to help protect judges and witnesses from intimidation and death threats. But the pitfalls are many.
Untrammelled judicial powers given to the army present great scope for misuse.
An obvious negative is that it could derail the nascent move towards democracy which the nation has embarked upon. The peaceful transfer of power after the 2013 General Election in Pakistan marked a first for the country, where power changed hands based on the will of the people expressed through the ballot. However, even during the civil rule by the previous regime and the current dispensation, attempts to clip the wings of the Army met with resistance and it was the civilian elected government which had to yield on matters which the army considered to be antithetical to its interests. With judicial control now also falling into the lap of the army, the Bill could potentially undo decades of struggle by political activists to restore democracy in the country.
Untrammelled judicial powers given to the army present great scope for misuse. Inconvenient politicians, media persons, civil rights activists and others are now open to be taken in custody by the state on trumped up charges of terrorism sans accountability. While the Interior Minister, Chaudhry Nisar Ali Khan has stated that the military courts would not be used to hold trials of politicians, businessmen and media persons, and only terrorism-related trials would be conducted in these courts,[iii] it is not outside the realm of possibility that evidence can be manufactured to suit any occasion. Voices of dissent, already muted, will thus have little hope of survival, which does not augur well for the state.
A different scenario could now well emerge in Pakistan with Pakistani terrorist organisations like the Tehrik-e-Taliban-Pakistan (TTP), resorting to kidnappings of senior functionaries and soft targets such as school children in exchange for their colleagues under trial by army court. Dealing with such potential activities would remain the defining challenge for the army. In any event, we are likely to see a ratcheting up of terrorist attacks against the state, adding to the security challenges already being faced by the state.
For India, the lessons are clear. Our judicial systems too need to be strengthened, so that the rule of law can be maintained.
For India, the lessons are clear. Our judicial systems too need to be strengthened, so that the rule of law can be maintained. We could perhaps look into fast track civil courts for early closure of all terrorist related cases. Allied with this would be the need to have an effective witness protection programme for all terrorist related incidents. Delay in providing justice to the victims of terror does not augur well for the criminal justice system in the country and this aspect requires urgent attention. Equally important is the necessity to free those wrongly held on terror charges.
Denial of justice too is an important factor fuelling the growth of terrorism. Lack of confidence in the country’s judiciary leads to some in the security establishment taking the law into their own hands, overlooking the judicial process. This is counter-productive and can best be countered by an effective judicial system. Quick dispensation of justice, besides imbuing confidence in the public, will also lead to reduced political interventions based on vote bank politics – a step that will be welcomed in the security establishment.