Are military courts functional? | Pakistan Today

Are military courts functional?

  • Army is well trained to carryout trials as part of Pakistan Army Act-1952

During the Second World War, when the Luftwaffe (German Air Force) was wreaking havoc over London with its incessant aerial bombing attacks, the British Prime Minister Sir Winston Churchill took cognizance of the heavy casualties and economic devastation. He asked, “Are the courts functioning?” When told that the judges were dispensing justice as normal, Churchill replied, “Thank God. If the courts are working, nothing can go wrong.”

Pakistan, which is facing a crisis no less than WW II because of incessant terror attacks, chaos and turmoil in the political arena, acute shortage of energy and water, near absence of law and order, corruption charges against its leaders, mounting international debts, aggression by both its eastern and western neighbours and constant threats by the Occident, should ask the same question. Unfortunately, the same courts which dispense justice are being denigrated by the politicians that are under trial for corruption charges.

Day in day out, Mian Nawaz Sharif, finds faults with the judicial process. His tall claims of the people’s vote absolving him evaporated in thin air with the rejection of his political party at the polls.

Even a cursory glance at the Constitution of Pakistan, Part VII: The Judicature, Chapter 1, “The Courts deals with the Establishment and Jurisdiction of Courts” confirms the validity of the legal institutions. It elucidates that “There shall be a Supreme Court of Pakistan, a High Court for each Province and a High Court for the Islamabad Capital Territory and such courts as may be established by law. No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by under any law. The Judiciary shall be separated progressively from the Executive…”

Prior to the 2018 elections, Mian Nawaz Sharif et alia had been stressing that the people’s vote’s sanctity must be respected. In his political rallies, he promised that after winning the elections in 2018, he would restore justice and the sanctity of the vote. What held him back from doing so in his three previous terms as prime minister?

Similarly, the previous government had serious reservations regarding the military courts. Readers may recall that the military courts were set up for speedy trial of militants after they attacked the Army Public School in Peshawar in December 2014 and killed around 150 people, mostly children. The whole nation had been badly shaken by the most gruesome attacks ever and numerous decisions were taken to combat terrorism effectively. A National Action Plan (NAP) comprising twenty points was approved. One of the items on the agenda was the establishment of military courts. This aspect was debated hotly in the parliament as well as the media and petitions to stop the military courts from meting verdicts and trying terrorists in the military courts were filed. The plea of the plaintiff was that in the presence of a free and fair judiciary, there was no requirement of the military courts. The counter argument was that trials of the suspected terrorists in the open judicial system, the judiciary was at times unable to mete justice since numerous witnesses backed out apparently after receiving threats from the terror mongers or the extremist groups to which the accused belonged. In some cases, the judge, who gave a verdict of guilty to the terrorists, was either eliminated or forced to flee the country for the fear of his life. Ultimately, on August 05, 2015, the Supreme Court (SC), in a majority ruling upheld the establishment of military courts in Pakistan. Petitions challenging the 21st amendment were dismissed in a majority 11-6 vote of the 17-member SC bench.

Our fault lines of provincialism, sectarianism, ethnicity and gap between the haves and have nots are real and only a unifying regimen and political dispensation accommodating all stakeholders can make us walk through this minefield

The observation of the detractors was that the military courts work behind closed doors while their decision are only made public when endorsed by the army chief. Specific details like venue and dates of trial and officials involved are obviously withheld due to security reasons.

People of Pakistan want the perpetrators to be punished and expect their elected representatives to ensure that justice and judicial reforms are not delayed. Speedy trials in military courts ensured that justice is neither delayed nor denied. Country is going through extraordinary circumstances and extraordinary decisions are the need of the hour. Military court saw execution of some hardcore terrorists that helped to break their organisational network.

Cases are disposed off in weeks and months without long delays by the military courts as compared to civil courts. Delays suits militants as our jails are considered haven for them. By being a security institution, and fighting war against terrorism, no other institution understands the convicts and charges against them better than army does.

Army is well trained to hold military courts and carryout trials as part of Pakistan Army Act-1952. Its judicial branch comprises judicial officers well versed in the process of trying those who break the law.

Previous governments introduced reforms in improving police, prosecution, protection of witnesses and certain judicial restructuring, however, certain major steps have not been taken like they failed to strengthen the civil legal system and judicial process enough to deal with terrorism.

Courts need to be fully protected to avert danger of repercussions from such perilous elements and organizations. Life of civil judicial officers is undeniably in danger when dealing with extremists. Hence, the decisions of the judges are likely to be influenced, at times, in favour of the accused.

Military courts, lessen the pressure and risk factor on the lives of civil judicial elements. On several occasions, terrorists who were involved in serious crimes and convicted by military courts were acquitted by different civil courts. Setting them free means that those terrorists can easily flee. One needs to reckon the efforts with which such dangerous elements are grabbed and tried in military courts. Hence, a constitutional amendment is also required in this regard.

Many military operations and war in history failed at the culminating stage or post-conflict phase due to the inability of the politico-economic tool to take over and establish the political writ of the state. All pillars of national power, the executive (civil-military), legislature, judiciary and the media, must work in synchronization to achieve the ends of the policy of war against terror.

Now, when the Pakistani civil-military leadership has been able to achieve consensus on operation Radd-ul-Fasaad (RuF), we cannot fritter away the fruits of our labour and the sacrifices rendered by thousands of soldiers and 70,000 civilians. Military courts have been instrumental in helping the state in providing a legal backup to military operations, their efficacy is well established. Military courts are not something unique to Pakistan, all states use such legal framework in emergencies.

Threat of hybrid war will continue to loom large on Pakistan’s horizon if the pillars of state do not synergise their efforts. Our fault lines of provincialism, sectarianism, ethnicity and gap between the haves and have nots are real and only a unifying regimen and political dispensation accommodating all stakeholders can make us walk through this minefield of challenges.

If operation RuF is the unifying factor in this hybrid war, what stops us from developing the contours of a politico-economic and legal dispensation on the very pedestal provided by the success of this operation? Military Courts should remain functional.

Sultan M Hali

The author is a retired Group Captain and author of the book Defence & Diplomacy. Currently he is a columnist, analyst and TV talk show host.