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Pakistan: Will military courts get an extension?


News Analysis |

Shahbaz Sharif, the opposition leader in national assembly, while talking to media briefly on Monday has said that the party [Pakistan Muslim League-N] will think over the issue of extension of military courts (MC) if PTI government approaches them. Shahid Khaqan Abbasi, former prime minister and leader of PMLN, while talking to a select group of media anchor persons, at a brunch few days ago, had also said it was the PML-N government that had introduced the military courts in the first place through 21st Amendment in the constitution, so it will definitely examine the issue of extension in the parliament but it will like to know why extension is again needed and for how long?

Not just the 21st Amendment, PMLN leader stated his party had also added the “Two Year Sunset Clause”; and it was again PMLN government that granted the extension to the military courts on March 31, 2017, after their two year period expired on Jan 7, 2017. Mr. Abbasi, however, remarked that the party would consider the extension this time around after pondering on certain aspects of the issue; that includes details of cases dealt by military courts, what job Military Courts have done so far, why the extension is required, and how many cases are still pending.

PML-N government that had introduced the military courts at the first place by 21st amendment in the constitution after the horrendous Army Public School carnage on Dec 16, 2014.

PTI’s Decision to extend Military Courts

In the first week of January this year, law ministry had moved the summary to the cabinet for the extension of Military Courts. Prime Minister Imran Khan then constituted a two-member committee comprising foreign minister Shah Mehmood Qureshi and defense minister Pervez Khatak to examine the issue and also to contact the opposition parties, heed to their viewpoint and take them into confidence regarding the extension. Media reports suggest that the government would probably prepare a report on the subject and share it with the opposition parties.

Read more: Government close to getting agreement on the extension of Military Courts

The idea of military courts received widespread political support after the barbaric APS attack, in December 2014, by the TTP terrorists operating from Afghanistan. School attack claimed 144 innocent lives including that of 131 children. Following the 21st amendment, which was passed by both houses of the parliament on January 6, 2015, after a long debate, military courts were set up getting a green signal from All Parties Conference. The two-year extension was granted, on 31st March 2017, under the original sunset clause introduced in Jan 2015. President Mamnoon Hussain had given his assent to 21st Amendment in the Constitution granting legal cover to military courts.

Military courts are speedy but the principal advantage of military court lies in the security these provide to the judicial process. Earlier, Judges, magistrates, police personnel, judicial officers and witnesses were continuously under threat of attacks by the Islamist militants across Punjab and by MQM’s militant gangs in Karachi. It was thus very difficult for regular courts to function independently. For military courts, judges come from the Judge Advocate General (JAG) branch and courts are established on undisclosed locations where no one including media is given access; hence, the officers as well as witnesses can’t be threatened. No media publicity and protection of officers and witnesses are the main advantages of the MCs.

Mr. Abbasi, remarked that the party would consider the extension this time around after pondering on certain aspects of the issue; that includes details of cases dealt by military courts.

Criticism on Military Courts

However, the same aforementioned characteristics of military courts came under severe criticism by civil society, Pakistan Human Right Commission (a NGO) other human right activists, private NGOs, legal fraternity, and sections of media. The climate of secrecy, absence of media and nature of military courts where ‘point of facts’ are examined without full application of legal jurisprudence became the subject of objection. Military courts don’t provide full legal defense to the accused and the charges brought by the prosecutor are examined under circumstantial evidence or facts.

On the other hand, regular courts where such expanded legal defense is available cases remain undecided for years and then the appeal process follows. Speedy Anti-Terror Courts were also tried in the past but were found ineffective and these remained under threat by terror gangs.

Read more: After all its theatrics PPP surrenders on military courts

Right of Appeal against Military Courts 

Initially, those under trial by military courts did not have recourse to civilian courts but later, under protest of human right organizations and civil society activists, Supreme Court intervened and granted the right of appeal and those convicted by the military courts seek relief from high courts and Supreme Court; and High Courts and Supreme Courts have turned down many convictions or reduced sentences in other instances.

In December 2018, defense minister Pervez Khattak informed the national assembly that since the establishment of the military courts, the federal government had referred 717 cases to them.  Five forty-six (546) out of these 717 cases had been finalized by the military courts and around 185 cases are still pending with the military courts (Military Courts have three months to decide 185 cases, NA told, The News, 14 December 2018)

Out of these 546 finalized cases, 310 terrorists had been awarded the death penalty while 234 were awarded rigorous imprisonment of varying durations ranging from life imprisonment to 5-year imprisonment. Two accused had also been acquitted. Out of 310 convicts, Fifty-six (56) people have been executed after completion of a legal process which included their appeals in superior courts and rejection of mercy petitions both by the army chief and the president. Cases of many convicts, around 254 facing capital punishment, are passing through the appeal process in high courts and supreme court.

No media publicity and protection of officers and witnesses are the main advantages of the MCs.

The 21st constitutional amendment defines that the ‘enemy of the state’ can be tried in the military courts. Initially, cases booked under Anti-Terrorism Act (ATA, 1997) were also referred to military courts by police departments or ministry of interior jurisdiction, but after preliminary review military courts sent back all those cases where accused had acted under personal animosities. Anti-terrorism act 1997 was not considered a sufficient criterion and the military courts decided to try only the cases where violence directly against the state was committed (or acts of mass murder like the attacks on Army Public School)

Read more: COAS’ concerns addressed: 29 cases sent to military courts

The term of military courts–that was given extension after the fierce debate in parliament, civil society, and media–has legally expired on January 6, 2019; a window of opportunity is valid till March. After the comments of Mr. Shahbaz Sharif, it can easily be said that PMLN– after some reservations– is going to ultimately support the extension. Pakistan Peoples’ party seems to have reservations. Bilawal Bhutto Zardari, Chairman PPP, in December 2018, while talking to media lamented the earlier extension of military courts and said, “I will oppose the extension of military courts’ laws at every forum.”. Since then Bilawal Bhutto has again voiced similar reservations. However many analysts also think that PPP leadership, facing the fake accounts investigations, since early September (through a Supreme Court appointed JIT) is publicly resisting military courts to seek a concession, behind the scenes, on corruption investigations.

Analysts believe despite the criticism and objection, it is highly likely that military courts will ultimately be extended for the third time. But the question to ponder on is that for how long these courts will be needed? And if there are any alternatives available like the specially created speedy courts of the past? Given the already burdened courts in Pakistan and the large number of pending cases, legal experts believe already tried speedy courts is probably the solution as well as the reformation of anti-terrorism courts.

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