In the wake of the Peshawar terror attack, the government of Pakistan and military officials have decided to reinstate capital punishment and to establish military courts in Pakistan to hear terrorism-related cases for a period of two years. The recent and most heartbreaking massacre of innocent school children forced the government and military officials to take serious and quick steps in order to destroy terrorism and bigotry.
The political elite in parliament endorsed the decision of the government to establish military courts except for the MQM chief Altaf Hussain, JUI-F and Jamaat-e-Islami (JI). The Pakistan Awami Tehreek (PAT) chairperson, Tahirul Qadri, expressed that all civilian institutions should be brought under military courts and that the current anti-terrorism courts should be replaced with military courts in order to hear terrorism-related cases. He further contended that the military courts would be able to dispose of terrorism-related cases more quickly. The government itself on numerous occasions said that the establishment of military courts is to counter terrorism and not to victimise political opponents. The political victimisation of opponents has happened in the past in Pakistan during Zia’s regime. While addressing the public in Karachi the other day from London, MQM leader Altaf Hussain categorically stated that the military courts from General Zia’s era made fake and frivolous cases against the political leadership of his time in order to obtain revenge from them and also to weaken the political structure of Pakistan.
Moreover, human rights groups and leading intellectuals protested against the government’s decision of establishment of military courts on the grounds that this decision shows that the current federal government does not have the will to combat terrorism and has psychologically given up combating terrorism in Pakistan. It has also been expressed by these groups that military courts will undermine fundamental human rights. For instance, freedom of speech, free and fair trial and due process of law through independent and impartial tribunals may become a thing of the past. They relied upon the example of the US where, after 9/11, lawmakers introduced the concept of military courts but it was struck down by the Supreme Court of the US on the grounds that they were unconstitutional.
A foremost contention of mine is that the establishment of military courts, or special courts, led by military officers, is unconstitutional and counter-productive as there is a provision in the Constitution of the Islamic Republic of Pakistan dealing with the establishment of military courts in Pakistan. Holding the trials of civilians by military officials without involving the general public, without any doubt, will surely breach fundamental human rights.
The Pakistan Military Act 1952 involves hearing cases involving army employees in order to determine guilt. On November 10, 2007, General Pervez Musharaf introduced an ordinance amending the Pakistan Military Act 1952, providing more powers to military courts, e.g. civilians were tried by military courts for, inter alia, “giving statements conducive to public mischief”, meaning even for expressing views against military rule. It is noteworthy that the unamended Pakistan Army Act did have a stipulation that a military court could hold the court martial of civilians, but only when one of the accused belonged to the armed forces. There is another stipulation in the Pakistan Army Act 1952 that the decision of the army’s appellant court is full and final, and it cannot be brought into question before any court of authority. On the contrary, the civilian appellant court can only commute or confirm sentences but the army’s appellant court can enhance the sentences as well. Therefore, establishing military courts in Pakistan even for a certain period of time actually is just like establishing a parallel justice system that will conflict with the civilian court system. The process of dispensing justice to people should remain with the civilian court system instead of military courts. This is not a solution for terrorism in Pakistan. The civilians accused of terrorism have already faced trial in military courts and have been sentenced to death by them.
The community of lawyers has also endorsed and welcomed the reinstatement of the death penalty and establishment of military courts for a certain period of time. However, some of them, such as criminal lawyer Salman Sandhu, believe that in the establishment of military courts to tackle terrorism related cases, it is most likely they will divert their focus from terrorism to political victimisation under the will of the current government. He went on to elaborate his idea that the current special courts constituted under the Terrorism Act 1997 be given more legal powers to conduct the trials of people accused of terrorism and that such trials be completed on a day-to-day basis so that the defence team cannot fabricate evidence in favour of the accused. There are numerous lacunae in the criminal justice system of Pakistan that actually allow people to get off free from these special courts. For instance, the police have no training in collecting evidence and conducting investigation of terrorism-related offences. The police should be given training on how to draft a first information report (FIR) in terrorismirelated cases.
In culmination, I submit that the decision of establishing military courts in Pakistan is unconstitutional and has no worth at all. Let the existing special terrorism courts be given more conclusive powers to conduct trials of people accused of terrorism. The law enforcing agencies should be given training on how to collect evidence and conduct investigations in terrorism-related offences. The process of dispensation of justice should be given to current courts, otherwise legal and political catastrophes may deepen for the sitting government at the Centre. Terrorism, no doubt, has made the lives of citizens a living hell and this terror ideology needs to be challenged and overcome. Not a single statesman has categorically challenged the concept of militant Islam and extremism as a whole. Simply establishing military courts, will not make anything right for Pakistan. The reinstatement of the death penalty and special military courts undoubtedly show that the government is vulnerable and has no will to fight terrorism.
The writer is an advocate of the High Court. He can be reached at [email protected]