Daily Times

Isn’t it a matter of shame for democratically elected governments that even after two extensions to military courts through 21st and 23rd amendments to the constitution, over a period of four years, here we are faced with the same predicament to give yet another extension to military courts.

I consider it a matter of shame because in the last four years the judiciary and the government have failed to take appropriate measures that may have filled the gap in our judicial system, making the need for military courts redundant.

The decision of allowing military courts was taken with a heavy heart by the political government in the gruesome backdrop of the attack on the Army Public School in Peshawar on December 16, 2014 where 149 students and teachers were killed by terrorists.

Whereas it was felt that the existing judicial system is incapable of convicting terrorists caught for killing many innocent civilians and the brave military personnel.

The purpose of the sunset clause in 21st and 23rd amendments was the presumption by the lawmakers that they would be able to mend the existing anti-terrorism courts system.

Military courts do not fulfill the norms of justice which is also evident from the brave decision by the Peshawar High Court in October last year

Here I may reiterate my own article written when the first move was made towards establishing military courts.

“Though the Supreme Court had given clear guidelines in Liaquat Hussain Vs Federation of Pakistan case in 1999 when it disallowed establishment of Military Courts, they were never implemented. Had the subsequent governments and the superior judiciary implemented these guidelines over the years, the contentious question of Military Courts would not have arisen again. [the same stands true today]

The Supreme Court laid down the following guidelines which may contribute towards the achievement of the objective for which Military Courts are being demanded by the establishment:

(i) Cases relating to terrorism be entrusted to the Special Courts already established or which may be established under the Anti-Terrorism Act, 1997 (herein after referred to as ATA) or under any law in terms of the judgment of this Court in the case of Mehram Ali and others Vs Federation of Pakistan (PLD 1998 SC 1445);

(ii) One case, be assigned at a time to a Special Court and till judgment is announced in such case, no other case be entrusted to it;

(iii) The concerned Special Court should proceed with the case entrusted to it on a day-to-day basis and pronounce judgment within a period of 7 days as already provided in ATA, or as may be provided in any other law;

(iv) Chalan of a case should be submitted to a Special Court after full preparation and after ensuring that all witnesses will be produced as and when required by the concerned Special Court;

(v) An appeal arising out of an order/judgment of the Special Court shall be decided by the appellate forum within a period of 7 days from the filing of such appeal;

(vi) Any lapse on the part of the Investigating and Prosecuting Agencies shall entail immediate disciplinary action according to the law applicable;

(vii) The Chief Justice of the High Court concerned shall nominate one or more judges of the High Court for monitoring and ensuring that the cases/appeals are disposed of in terms of these guidelines;

(viii) That the Chief Justice of Pakistan may nominate one or more Judges of the Supreme Court to monitor the implementation of the above guidelines. The Judge or Judges so nominated will also ensure that if any petition for leave/or appeal with the leave is filed, the same is disposed of without any delay in the Supreme Court;

(ix) That besides invoking aid of the Armed Forces in terms of sections 4 and 5 of the ATA the assistance of the Armed Forces can be pressed into service by virtue of Article 245 of the Constitution at all stages including the security of the Presiding Officer, Advocates and witnesses appearing in the cases, minus the process of judicial adjudication as to the guilt and quantum of sentence, till the execution of the sentence.”

It is clear from the above that had the government and judiciary accepted these guidelines by the learned judge, they could have stood on their ground that they would not give another extension to the military courts. Military courts do not fulfill the norms of justice which is also evident from the brave decision by the Peshawar High Court (PHC) in October last year by Chief Justice Waqar Ahmad Seth and Justice Lal Jan Khattak. The two judges set aside the punishments handed over to 74 convicts by military courts in various cases of terrorism.

In most cases, convictions were based on the confession of convicts acquired after many years of their arrest. According to the PHC judgment, most acquittals were on the grounds of: absence of substantial evidence; the trial being unfair; violation of articles 4, 10-A, 12 and 25 of the Constitution as well as of Section 91 of the Pakistan Army Act; and the absence of jurisdiction with the military court. But the SC was not obliged to uphold the PHC’s decision and granted a stay in 68 cases on the appeal of the Defence Ministry. The judges ordered not to release the accused.

Had the government listened to the SC’s suggestion in the Liaquat Hussain v The Federation of Pakistan case, they would not have come to the juncture to pass another amendment giving a new lease of life to the military courts. In any case, the Imran Khan government is based on a razor thin majority. It needs the support of the major opposition parties – PML-N and PPP – to muster the support of the two third members of Parliament required to give an extension to military courts for the third time while this government has a bellicose relationship with the opposition.

So, there is no hope to get the opposition’s support unless the establishment forces them to do so. But even then, the opposition parties’ price for the support would be to gain some concessions from the NAB cases.

One argument given in favour of military courts is that judges can be intimidated by terrorist groups to free their comrades. We have seen that our judges have given some bold and courageous decisions in spite of death threats. The most recent example is the SC’s judgment in the Asia Bibi case and the death sentence pronounced to Mumtaz Qadri for killing Punjab Governor Salman Taseer.

The writer is a freelance journalist and author of What’s wrong with Pakistan? He can be reached at ayazbabar@gmail.com

Published in Daily Times, January 20^th 2019.