The promulgation of the Army Act (Amendment) Ordinance 2015 has further enhanced the status of military courts that are already functional in four provinces — three each in Punjab and Khyber Pakhtunkhwa, two in Sindh and one in Balochistan. The military courts were set up as part of the National Action Plan for the speedy trial of terrorists after the Army Public School (APS) carnage in Peshawar. The 21st constitutional amendment and the Pakistan Army (Amendment) Act 2015 were adopted by parliament to provide legal cover to the military courts. Under the amended and approved Ordinance, it would be the discretion of military courts to hold open or closed proceedings. These courts have also been authorised to hold proceedings through a video link. The latest development is part of the government’s strategy to take a tougher stand against terrorists while ensuring speedy trial of those civilian terrorists who wage war against the state in the name of religion or sect. The Ordinance is aimed at ensuring transparency during trials and removing the widespread concern about the lack of due process because of the summary nature of trials in military courts, which it is felt could easily lead to miscarriage of justice and violations of the right to proper defence in a fair trial. There was criticism from many sections of the populace, including the legal community, against trials behind closed doors and the concealment of proceedings. Usually, military courts do not hold open proceedings and their decisions are only made public by the military authorities if they think it necessary or appropriate.
The 21st constitutional amendment has been challenged in the Supreme Court due to scepticism attached to the working of military courts, their trial methodology and the criteria for the selection of cases. The complainant parties, which comprise various Bar councils, mainly the Pakistan Bar Council and the Supreme Court Bar Association, have demanded of the top court to decide their petitions quickly due to the impending start of trials in the military courts. The counsel for the petioners argued that the formation of military courts is in fact a form of parallel judicial system that is a sheer violation of the constitution. The federal and provincial governments in their replies submitted in the court have defended the setting up of military courts. They argued that the step is not against the basic structure of the constitution. According to the government, the civil judicial system was under immense pressure while judges, lawyers and witnesses remained under threat due to their vulnerability to attacks for trying terrorists. Secondly, lengthy court procedures delayed the speedy trial of terrorists. Due to non-compliance in submitting a reply by the Advocate General of the Islamabad Capital Territory, the court accepted his plea for three more days to comply. The three-member bench also referred the case to the Chief Justice of Pakistan (CJP) to form a larger bench to hear the identical petitions against the passage of the 21st Constitutional Amendment, since this was an important constitutional issue.
The prevalent justice system envisages the meeting of certain prerequisites like registration of a criminal case, thorough investigation, arrest, and then prosecution. Our courts are already burdened with a large number of cases that remain undecided for years and the backlog of such unresolved cases keeps on piling up, making the dissemination of timely justice difficult. The government has resorted to experimenting with the establishment of military courts with the consensus of parliament for initially two years. Except a few, almost all parliamentarians have seconded the government’s decision and that is why the 21st amendment passed easily in both the National Assembly and Senate. There may now be a need for the government to have a close liaison with the army’s legal branch that is dealing with terror-related cases. *