PILDAT
Policy Brief
Revival of
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?
![http://www.pildat.org/](http://www.pildat.org/events/17-03-19/img/02.jpg)
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
1997) |
The
provisions of this Act shall remain in force for a period of two years
from the date of its commencement. |
|
Table
2: Comparison Between Twenty Eighth Constitutional Amendment Bill and the
Twenty First Amendment
Section |
Twenty
Eighth Constitutional Amendment |
Twenty
First Constitutional Amendment |
Comments |
Preamble |
An
extraordinary situation and circumstances still exist
which demand the continuation of the special measures
adopted for the expeditious disposal of certain offences… |
Extraordinary
situation and circumstances exist which demand special measures for
speedy trial of certain offences… |
|
Preamble |
by
any terrorist group… misusing the name of religion
or a sect or by committing grave and violent act of terrorism
against the State or from foreign and locally funded anti-state
elements |
By
any terrorist group… using the name of religion
or a sect. |
This
has been replaced wherever this line appears. |
Preamble |
And
whereas the special measures adopted pursuant to the Constitution (Twenty-first
Amendment) Act, 2015, enabling trial of cases relating to terrorism
under the Pakistan Army Act, 1952, have yielded positive results
in combating terrorism; |
Not
present |
|
Preamble |
And
whereas it is in the national interest to continue the special
measures adopted pursuant to the Constitution (Twenty-first
Amendment) Act, 2015 for a further period of two years |
Not
Present |
|
|
Not
Present |
Three
paragraphs: 1) grave and unprecedented threat to the integrity
of Pakistan and objectives set out in the Preamble to the Constitution
by the framers of the Constiution..
2) terrorists tried by military courts…
3) People of Pakistan have expressed their firm resolve through
their chosen representatives in the all parties conferences… |
|
2 |
Provided
that the provisions of this Article shall have no application to the
trial of persons under any of the Acts mentioned at Serial No.
6 and 7 of sub-part III of Part I of the First Schedule, who
claim, or are known, to belong to any terrorist group…
|
Provided
that the provisions of this Article shall have no application to the
trial of persons under any of the Acts mentioned at Serial No.
6, 7, 8 and 9 of sub-part III of Part I of the First Schedule,
who claims, or is known, to belong to any terrorist group… |
|
3 |
The
following new entries shall be added, namely:
6. The Pakistan Army Act, 1952
7. The Anti-terrorism Act 1997 (XXVII of 1997), only to the
extent of sub-clause (iv) of clause (d) of sub-section (1) of section
2 of the Pakistan Army Act, 1952, added through the Pakistan Army (Amendment)
Act, 2017 |
The
following new entries shall be added, namely:
6. The Pakistan Army Act, 1952
7. The Pakistan Air Force Act, 1953 (VI of 1953)
8. The Pakistan Navy Ordinance, 1961 (XXXV of 1961)
9. The Protection of Pakistan Act, 2014 (X of 2014) |
|
References
3. For
details, please see 180(g)(h), page no. 372 of the Supreme Court’s
judgment issued on August 05, 2015 on Constitution Petition No.12, 13,
18, 20-22, 31, 35-36, 39, 40, 42-44 of 2010. The complete judgment may
be accessed at:
http://www.supremecourt.gov.pk/web/user_files/File/Const.P.12of2010.pdf