MILITARY COURTS

By
AZMAT ULLAH WARRAICH
Advocate High Court
E-mail: azmatwarraich@ymail.com

The Constitution of the Islamic Republic of Pakistan was passed by the Parliament unanimously on 12th April, 1973. It gave a system that the judiciary was independent organ of the state, which included subordinate judiciary, High Courts, and the Supreme Court of Pakistan.

On 4th July 1977, Martial Law was imposed by General Muhammad Zia ul Haq, and the Constitution was suspended. Hence, Military Courts were established on 15 July 1977, and were abolished when he restored democracy. He also established the Federal Shariat Court in 1981 during Martial Law regime, and it became part of the Constitution. It was endorsed by the parliament during the process of restoration of democracy and became a parallel Court to the superior Courts of Pakistan.

The Civilian government of Mian Nawaz Sharif had established Military Courts on Nov 20, 1998 in Karachi. He amended the Military Act, 1952, through an Ordinance. These Courts had run for only two months.

Before the Military Courts

It is a fact that before the Military Courts in 2015, army was planning to upgrade its legal department in the following way:

By the second week of September, the military authorities had held an "in house discussion" on "legal challenges faced by Pak Army and the way forward". In this discussion, it was decided to upgrade the military's law directorate.

Till recently, the legal directorate of the army was headed by a Judge Advocate General (JAG), a brigadier rank officer, who oversees all the military-related litigation within the army and in the civilian Courts.

Sources said the September meeting was chaired by Chief of Army Staff (COAS) General Raheel Sharif and attended by others such as the Chief of General Staff, Director General Military Intelligence, JAG, and Director Military Intelligence.

In this meeting, the COAS "formally approved creation of new Lawfare Directorate (LD) under a Director General (DG), an officer of the rank of Major General."

In addition, the meeting approved that "a suitable DG be attached forthwith to oversee and evaluate the prospects of suggested LD in 2-3 months."

Last but not least, it was also decided that the COAS "will review the progress on a monthly basis". (1)

The new martial powers

ISLAMABAD: The amendment in the Pakistan Army Act (PAA), 1952 has added a fourth category of civilians that can now be tried by Military Courts - for the next two years.

This amendment in Section 2(d) of the PAA has now empowered Military Courts to try civilians facing charges of terrorism or abetting terrorist activity.

New to the Military Courts

These new offences, which now fall under the jurisdiction of Military Courts to the amendments made to the PAA by parliament on 6-1-2015, include the following: those claiming or known to belong to any terrorist group or organisation using the name of religion or a sect; those who raise arms or wage war against Pakistan, or attack the Armed Forces of Pakistan or law enforcement agencies; kidnapping for ransom; possession or storing of explosives, firearms, suicide jackets; using or designing vehicles for terrorists acts; providing or receiving funding from any foreign or local sources for terrorism ; "overawing" the state or any section of public or sect or religious minority and creating terror or insecurity in Pakistan or outside.

Another amendment to subsection (iv) has empowered military authorities to take action against those who "belong to any terrorist group or organization using the name of religion or sect" and waging "war against Pakistan" if they commit an offence that has been mentioned in the Protection of Pakistan Act (PPA).

These offences under the PPA, which will now make their way to the Military Courts, will include: crimes against religious, ethnic and political groups or minorities; use of arson, firebombs, suicide bombs, and other materials that can injure or kill people or destroy property; bomb or arson attacks on public premises, government premises, sites of worship, historical places; killing kidnapping, extortion or attack on members of parliament, judiciary, executive, media; the killing, kidnapping of army and law enforcement officers and employees, of foreign nationals, of health personnel and of aid workers; attacks on communication lines, grid stations, energy facilities (such as dams and distribution systems), airports, educational institutions, police stations and mass transport system.

Illegally crossing national boundaries is also an offence under the PPA and this too can now be tried in a Military Court.

Government's new powers

The amendment bill, however, made it clear that the persons facing these offences can only be prosecuted with the prior sanction of the federal government.

However, this is not the only power that the federal government enjoys under the latest amendment to the PPA.

More serious is the fact that the amendment gives the federal government the power to transfer any pending cases in any trial Courts to the Military Courts, allowing the latter to continue with the trial.

It does not seem as if the date of the offence or the stage at which the trial is will matter.

Another amendment in Section 60 of PAA empowers the Military Courts to award punishment for those offences which are not part of the Army Act but which have been added to it under the latest amendment. For example, the Military Courts can now award punishment ranging from death to imprisonment or imposing fines to those charged and convicted for the offences mentioned in the PPA.

Is there a right of appeal?

The bill, (act) however, is silent about Section 133 of the PAA, which deals with the right of appeal against the judgment of Military Court in the superior Courts. Under the PAA, the civilian Courts do not have the right to hear appeals against judgments awarded by the Military Courts.

Constitutional amendment

On 6-1-2015, the parliament also passed a constitutional amendment which was aimed at ensuring that the amendments to the PAA cannot be struck down by the Supreme Court as unconstitutional.

One way in which the constitutional amendment has tried to address this concern is by amending Article 175(3) of the constitution which states that "The judiciary shall be separated progressively from the executive".

Under the latest 21 amendment, this article will not apply to the trials of terrorists under The Pakistan Army Act 1952, The Pakistan Air Force Act, 1953, The Pakistan Navy Ordinance 1961 and The Protection of Pakistan Act.( 2)

When right of appeal is not given against a judgment of the Military Court to a civilian convict at least in the Supreme Court of Pakistan, it means; a Military Court will be equal to the Supreme Court of Pakistan. The Military Courts will destroy the whole structure of the judicial system in Pakistan.

Anti-terrorist Courts

Firstly, Anti-terrorist Courts were established in Pakistan in 1997. These Courts can try any terrorist offence committed by a terrorist in Pakistan. The Courts have vast powers to try offences.

It is the duty of the State investigation agencies to collect evidence and present it before an anti-terrorist Court. And a Court can decide a case only on the basis of evidence which is provided by the prosecution. It is a fact that investigation agencies and witnesses play a major role in the criminal justice system.

It is alleged that the Courts cannot decide case quickly and delay trials. It is a question that when an accused is detained for one or two years or more in a jail, how he can he be dangerous to the society. All negligence or incompetence of the state investigation agencies and prosecution cannot be put in the account of the judiciary. Why were judgments of the Superior Court of Pakistan not implemented in proper time? Before 16 December 2014 event, why the establishment did not do anything to reform the judicial system relating to terrorism?

Ad hoc decisions may give relief temporarily, but they damage permanently the masses mentally as well as physically on name of their security. It is no benefit to the society on long the run.

Military operation has been operating against the terrorists for many years, but it has not succeeded to eliminate the terrorism from the soil. How do you eliminate terrorism through the Military Courts within a period of two years? And if you do not succeed through Military Courts what will you do then?

References:

1. Dawn.com 2-1-2015

2. By Malik Asad: Dawn.com 7-1-2015