We at New Pakistan have consistently spoken in favor of civilian supremacy, democracy and against military courts. We agree with the Human Rights Commission of Pakistan that military courts are undemocratic.
In the aftermath of the horrific terror attack on APS Peshawar in December 2014, the civilian and military leadership believed that the “extraordinary situation” they were confronted with demanded “special measures.” This led to the 20-point National Action Plan (NAP) unanimously approved by Parliament on 24 December 2014 which among other measures approved the formation of military trial courts to deal with terrorism related cases and lifting of the ban on death penalty in such cases.
In the last four years, “military courts have convicted at least 641 people. Some 345 people have been sentenced to death, at least 56 of whom have been hanged, and 296 people given prison sentences. Only five accused people have been acquitted. Nevertheless, the Supreme Court has rejected challenges to the expanded role of military courts, as well as its extension in 2017, while clarifying that decisions of military courts remain subject to judicial review on certain grounds.”
The term of the military tribunals was first extended in 2017 and, because of a two-year sunset clause, must now lapse or be renewed. The Imran Khan government would like to extend these courts but it does not have the numbers in parliament to do so. Opposition parties like the PPP and Pakistan’s leading human rights organization Human Rights Commission of Pakistan (HRCP) have expressed “grave concerns over the planned extension and called the idea of military courts undemocratic. It also warned that extending the life of military courts comes at the cost of reforming the criminal justice system in Pakistan.” The International Commission of Jurists (ICJ) too “has criticized the military trial of civilians as a ‘disaster for human rights’ in Pakistan. The ICJ expressed concern that further extension to military courts would make the practice effectively permanent.”
In a recent article Prof Muhammad Zubair analyzes the record of ‘military justice.’ “The proceedings of military courts have been kept secret. Until recently, there was not sufficient information in the public domain about their procedures and workings. The only source of information has been media statements of the Inter Services Public Relations (ISPR) – the media wing of the military – announcing the award of capital punishments by military courts and containing vague references to the alleged involvement of the convicts in militancy without specifying the nature or extent of the convicts’ purported role in the acts of terrorism ascribed to them. However, on 18 October 2018, the Peshawar High Court (PHC) in a single judgement overturned some 70 convictions (mostly death sentences) awarded by three military courts in the province of Khyber Pakhtunkhwa on 10 October 2018 for lack of credible evidence and that convictions suffered from ‘malice’ of law and facts. The decision of the PHC for the first time provides an authoritative insight into the working of military courts. The PHC concluded that the military courts were operating with a ‘clear mindset’. For example, the court observed that all convictions in those cases were based only on confessions, without independent and unimpeachable evidence to prove the guilt of the accused beyond reasonable doubt. Prosecution witnesses in all those cases were informants and none had directly witnessed the presence of any convict on the scene of occurrence. Confessional statements and statements of prosecution witnesses in all cases were similar in all details except changes of dates, places and names of individuals. All confessions in three different military courts were written in the same handwriting, language, text, tone and tenor. The court also observed that quite surprisingly in all cases the convicts refused to engage private defense counsels of their choice and instead agreed to be defended by a ‘private’ counsel selected by the prosecution at state expense. Only one defense counsel with five years’ experience from another province was engaged who could not speak the language of those he supposedly defended. The defense counsel declined in all cases to cross-examine prosecution witnesses testifying about the character of the accused. None of the accused deviated from the principal stand of the prosecution and none answered the prosecution questions differently. All convicts were kept outside the court while proceedings went on behind their back.”
Further, “The court made a startling revelation that for relatives almost all convicts were ‘missing persons’ for a long time – ranging from six months to eight years! After years of detention, the convicts were suddenly produced before military courts where they ‘confessed’ to terrorism related crimes. Relatives of most the convicts were never informed at any stage that they were alive and facing trial proceedings before the military courts. In 45 cases, the relatives came to know about the convictions through newspaper reports. The dangers of the military administering justice should serve as a wakeup call to parliamentarians not to extend the mandate of military courts. The court concluded that all three military courts ‘had a clear mindset’ that trials by these courts were ‘planned proceedings’ and ‘a complete prosecution show’; that the ‘private counsel was just a dummy’; that none of the accused was mentioned by name in any police report prior to their arrest; and that in all cases, ‘after each arrest, each and every accused was kept and framed in a particular case’. The decision of PHC demonstrates the dangers of the military administering justice and should serve as a wakeup call to parliamentarians not to extend the mandate of military courts.”
Finally, “The ruling of PHC proves beyond any doubt that the idea of military justice is inherently in conflict with the idea of a democratic order based on the rule of law, and in violation of fundamental rights under the constitution of Pakistan and international human rights instruments. Pakistan must abide by its international obligations and put an end to military courts. The military is part of the problem and for that reason cannot be a part of the solution. The elephant in the room, which hardly gets mentioned in the debate, is the fact that military is part of the problem and for that reason cannot be a part of the solution. The rise of extremism and terrorism in Pakistan is mainly due to the military’s control over foreign policy towards its neighbors, especially India and Afghanistan. The policy relies heavily on the use of what is commonly known as the ‘good militants’ that attack and destabilize the said countries, as opposed to the ‘bad militants’ that attack the army and mainland Pakistan. It is the ‘bad’ militants that have become the target of military operations and stand trials, if at all, before military courts. While approving the formation of military courts for the first time, many parliamentarians, without naming but in clear reference to the Pakistan army, urged the military to abandon the policy of making distinctions between good and bad militants if the country is to get rid of the scourge of terrorism. Unfortunately, nothing has changed in that regard. One of the greatest problems the country has been facing is the issue of missing persons or enforced disappearances. The military intelligence agencies have been accused of disappearing many Pashtun residents from Khyber Pakhtunkhwa, PATA and the erstwhile FATA. This has given birth to the Pashtun Tahaffuz Movement (PTM), a new movement that is demanding the security of Pashtuns from the military. It has jolted the hitherto unchallenged military establishment and called for rolling back the latter’s destructive policies. The massive public demonstrations of PTM always reverberate with the slogans ye jo dehshat gardi hai, iske peeche wardi hai, which literally means ‘the army is behind terrorism’. Under pressure from PTM, the military has reportedly released almost a thousand missing persons from the internment centers maintained by the security agencies where they were kept and tortured for years. One of the main PTM demands has been for the military to produce the missing persons before the regular courts of law to stand trial. If the military is accused of being ultimately responsible for promoting extremism and terrorism, it cannot and must not be allowed to become a judge in its own cause, selectively going after some and simultaneously supporting other militants or militant groups. The civilian political leadership has to gather courage, stand up to the army and assert its control over domestic and foreign policy. It must draw strength from and support popular movements such as PTM that stand for the supremacy of the constitution and the rule of law. It has to address the root cause of terrorism and at the same time bring reforms in the criminal justice system. As DAWN, a prominent newspaper, has rightly noted in its recent editorial, ‘The fight against militancy, terrorism and violent extremism will of necessity be long. But the country must not lose its constitutional, democratic and fundamental-rights moorings in the process’.”