PILDAT Policy Brief : Revival of Military Courts in Pakistan

PILDAT

Policy Brief

Revival of

Advertisement

Military Courts in Pakistan

An image of the meeting

held between Parliamentary Leaders and chaired by the Speaker, National Assembly

held on March 16, 2017 on revival of Military Courts

 

With the

expiry of the sunset clause of the 21st Constitutional Amendment on January

07, 2017, the Government and the opposition parties reached an across-the-board

consensus on March 16, 2017 to revive Military Courts for another two years.

The Government is now expected to table two revised Bills – the 23rd Constitutional

Amendment Bill and the Pakistan Army Act, 1952 Amendment Bill – on March 20,

2017 to provide the necessary legal cover for revival of Military Courts.

First

of all, there is apparently no reason why the Federal Government did not initiate

the process well before the expiry date of the 21st amendment so that the

gap of around four months could be avoided.

The revival

of the Military Courts, which were declared to be a ‘bitter-pill’

when these were originally established two years ago, may be a necessity again

given the continuing onslaught of terrorism and the weaknesses in Pakistan’s

criminal justice system. However, in doing so, the Government and the Parliament

must seriously deliberate on what may be the most workable approach to setting

up of effective military courts.

The formation

of the Military Courts came about as an ‘extraordinary measure’

which was packaged as a ‘stop-gap arrangement’ to eradicate terrorism

due to the flaws and inefficiencies of the legal system. Hence the two-year

sunset clause was placed allowing the Government and the Parliament to institute

necessary reforms to strengthen the legal system to adequately and effectively

manage challenges of terrorism. Reforms in the criminal justice system within

two years was also a central tenet of the National Action Plan (NAP). However,

without any substantive progress on reforming the judicial system, the proposal

to re-establish military courts is tantamount to Government failure which

the Government itself may consider as “admission of failure of the

existing system.1

It is

a legitimate expectation in a democracy that before initiating the legislative

proposals to re-establish Military Courts, the Government needed to inform

the Parliament and the people on the two-year performance of the Military

Courts, the raison d’être behind their re-establishment for another

two years as well as the steps it took in reforming the criminal justice system.

That it failed to do so reflects a somewhat casual approach not just towards

such a critical issue of re-establishment of Military Courts but also towards

the institution of the Parliament.

The Parliament,

for its part, has also done precious little in the past two years on reviewing

the performance of the Government on reforms in Pakistan’s criminal

justice system. Although the Senate did a commendable job to produce a detailed

report on the Provision of Inexpensive and Speedy Justice in the Country after

detailed deliberations in its Committee of the Whole in December 2015, the

Parliament on the whole did not exercise its oversight role in a befitting

manner. Its Committees should have sought monthly reports from the Government

on the steps taken to reform the justice system.

Given

that the re-establishment of military courts is a fait accompli now, an objective

analysis is required on the role of the judicial review that has eclipsed

the rationale behind setting up of Military Courts. The rationale behind the

institution of military courts is that these are efficient in handing out

convictions. The procedure of appeals is not impeded by the rigmarole of the

conventional criminal justice system, and as a result convictions are not

unnecessarily forestalled. However, this objective does not appear to be fully

met perhaps due to the role of the judicial review. While the Government has

not shared any data on performance of the Military Courts, a total of 274

cases were referred to Military Courts since January 2015. So far, a total

of 161 terrorists were awarded death penalty by the Military Courts in two

years out of which only 12, i.e. 7% have been administered death penalty.

113 terrorists were awarded imprisonment of varying duration during the period.2 The

Supreme Court, in its judgment on August 05, 2015 had declared that the trial

of any accused person under the Pakistan Army Act, 1952, is to be subject

to Judicial Review both by the High Courts and the Supreme Court. 3

As a result, according to media reports, convictions of around 35 militants

are pending before the Peshawar High Court.4 In addition, review

petitions of at least 11 of the convicts of military courts against dismissal

of their earlier appeals are also pending before the Supreme Court.

The Army

Act 1952 lays down the Military Court of Appeal as the appellate forum of

military courts, with the Chief of Army Staff being the one who approves the

sentence of the appellate forum.5 According to a report ‘the

verdict of a military court that is upheld by a Military Court [of Appeal]

is final and cannot be appealed before a civilian court, even the High Court

or the Supreme Court of Pakistan’.6

In going

forward, therefore, Government and the Parliament must consider the most effective

form of re-establishment of military courts. Parliament exists for the purpose

of careful review and discussion on legislative proposals before their passage.

In expecting Parliament to simply sign a dotted line agreed outside the House

by party heads amounts to insulting the constitutional role of the elected

representatives. Instead of the announced presentation and passage of the

legislation on March 20th,both houses of Parliament must devote some time

for individual members to deliberate on the proposed laws instead of repeating

the bad example of passage of 21st Constitutional Amendment after only 174

minutes of debate in 2015. After all, if elected representatives of the people

do not have the time for review and debate on laws before they vote, what

is the rationale behind their role?

A view of the Parliamentary

Leaders addressing a Press Conference after a meeting in the Speaker of National

Assembly’s Chamber on February 28, 2017 to forge consensus on revival

of Military Courts

Given

its inability in instituting reforms in the criminal justice system in the

past two years, the Government needs to outline concrete proposals, alongside

a set timeline. While unlike in the past, the Parliament needs to redeem itself

and carry out an effective and regular oversight in this regard, the PPP and

the PML-N agreement to form a new Parliamentary Committee to oversee Government

efforts to enact necessary criminal justice reforms, implementation of NAP

and other security related issues seems like not a very effective measure.

With the existence of Standing Committees overseeing Defence and Interior

Ministries both in the Senate and the National Assembly, there is apparently

no need to create an additional, Special Committee. It is also important to

note that even if a National Security Committee of the Parliament is constituted,

it may not be possible for it to undertake all these responsibilities. Instead,

monitoring progress on criminal justice reforms should specifically be the

responsibility of the Parliamentary Committees on Law and Justice, and monitoring

implementation of the National Action Plan should be that of the Parliamentary

Committees of Interior. The most effective way to do so may be joint exercise

of progress review by the Standing Committees of the Senate and the National

Assembly for this purpose.

However,

a clear roadmap is also required for the Parliamentary Committees on Law and

Justice in this regard. The Committees must meet every month solely to review

the progress on institution of reforms by the Government on criminal justice

system. PILDAT proposes that these meetings should be open to the media, if

not to the general public. Each meeting of the committee must strictly monitor

progress and share it regularly. For instance, the Committee should review

monthly progress on percentage of the work done by the Government ensuring

that it is 100% complete in two years. This would mean that the progress on

average should be about 5% every month. Such specific proposals are required

for a vigilant and consistent oversight failing which the Parliament may again

be looking at instituting another stop gap arrangement.

 

Table

1: Comparison Between Pakistan Army (Amendment) Act, 2017 (Bill) & Pakistan

Army (Amendment) Act, 2015

Section

No.

Pakistan

Army (Amendment) Bill, 2017

Pakistan

Army (Amendment) Act, 2015

 

Preamble

An

extraordinary situation and circumstances still exist

which demand continuation of special measures

Extraordinary

situation and circumstances exist, which may demand

Misusing

the name of religion or a sect or by committing grave

and violent act of terrorism against the State

Using

the name of religion or sect.

This

change is repeated at every place this line is used

After

an exposition of the special measures pursued under Pakistan Army (Amendment

Act) 2015 the Act states: And Whereas the aforesaid special measures

have yielded positive results in combating terrorism

Not

present.

And

WHEREAS it is in the national interest to continue

the special measures adopted pursuant to the Pakistan Army (Amendment)

Act, 2015 (II of 2015) for a further period of two years;

Not

present.

1.

(2)

It

shall come into force at once and shall be deemed to have taken

effect on and from 07th January, 2017

It

shall come into force at once.

1.

(3)

The

provisions of this Act shall remain in force for a period of two years

from the date of its commencement and on expiry of the said

period all cases triable under this Act and are pending in courts established

under the Pakistan Army Act 1952 (XXXIX of 1952), shall stand transferred

to the courts established under the Anti-terrorism Act 1997 (XXVII of