PILDAT Policy Brief : Revival of Military Courts in Pakistan

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.

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

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

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

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

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

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

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]

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

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

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