Call for the Restoration of Military Courts 

The May 9 perpetrators must be punished

Military courts play a crucial role within the justice system, especially in dealing with cases related to national security and terrorism. Globally, there are instances of exemplary military courts showcasing exceptional effectiveness in handling such cases. Several case studies highlight success stories, demonstrating how military courts contribute to delivering swift, fair, and decisive justice in the ongoing fight against terrorism.

In the aftermath of the 9/11 attacks, the United States established military commissions to prosecute individuals involved in acts of terrorism against the country. Operating under the Military Commissions Act, these commissions aimed to provide a legal framework for trying individuals associated with al-Qaeda and other terrorist organizations. Despite facing legal and procedural challenges, the military commissions have successfully rendered justice in numerous high-profile cases, emphasizing the US commitment to holding terrorists accountable under a specialized legal framework.

The petition contends that the bench established for the Military Courts case did not adhere to the Supreme Court Practice and Procedure, asserting that the five-member bench’s decision is legally flawed and ineffective

In the aftermath of the attempted coup in Turkey in 2016, the country utilized military courts to prosecute individuals implicated in the coup plot. These courts played a crucial role in addressing the unique challenges posed by the coup attempt, ensuring the swift dispensation of justice for those involved. The trials underscored the significance of military courts in responding to security threats and maintaining stability during times of crisis.

Colombia, a nation grappling with internal conflicts and insurgencies, employs a military criminal justice system to handle cases involving military personnel accused of committing crimes, including those related to terrorism and insurgency. This system strikes a balance between holding individuals accountable for their actions and maintaining discipline within the armed forces. Colombia’s experience illustrates how a well-functioning military justice system can contribute to both national security and the preservation of the rule of law.

Regrettably, the civilian judicial system in Pakistan has failed to deliver timely and transparent justice to its citizens. It is a common observation that legal cases, spanning generations, often remain unresolved. The overwhelming caseload further burdens our courts, with the superior and lower judiciaries grappling with a staggering backlog of 2.144 million cases. In 2021 alone, 4.102 million cases were concluded, while 4.06 million new cases were filed, leading to an overall pending caseload of 2.16 million at the start of the next year.

Statistics from the Supreme Court, Federal Shariat Court, and five high courts indicate that 229,822 cases were disposed of in 2020, with 241,250 new cases instituted. The pending cases before superior courts at the year’s end stood at 389,549, slightly higher than the previous year’s tally of 378,216. Similarly, the district judiciary faced 1,783,826 pending cases at the beginning of the previous year, adjudicating 3,872,686 cases while 3,822,881 new cases were filed, resulting in a total pending caseload of 1,754,947 by the end of 2021.

In contrast, recognizing the pressing need for expeditious justice, Pakistan, a country grappling with terrorism, established Anti-Terrorism Courts (ATCs). These specialized courts aim to fast-track legal proceedings, ensuring a swift response to security threats. ATCs have played a pivotal role in prosecuting individuals involved in high-profile terrorist incidents, contributing to the dismantling of terrorist networks and restoring public confidence in the justice system.

Additionally, military courts in Pakistan were instituted following a terrorist attack on the Army Public School in Peshawar on 16 December 2014. The tragic incident prompted the establishment of military courts through the 21st Constitutional Amendment, effective from 6 January 2015. These courts were granted jurisdiction for the speedy trial of cases related to specified acts. Since their inception, military courts have handled approximately 717 cases, finalizing 546 of them. Notably, they imposed death sentences on 310 terrorists and various terms of rigorous imprisonment on 234 others. This track record underscores the role of military courts in delivering swift justice.

The government’s response to the May 9 attacks, perpetrated by a group of militants and terrorists targeting civil and military installations, involved the use of Military Act and Military Courts. It is crucial to note that decisions made by military courts are subject to appeal in higher civilian courts, mitigating concerns of potential human rights violations.

A Supreme Court bench comprising five members, led by Justice Ijaz-ul-Ahsan, has declared the verdict of trying civilians in military courts null and void. Following this development, the caretaker federal government, subsequent to the Defence Ministry, has also lodged an appeal challenging the Supreme Court’s decision to invalidate the military trial of civilians. Acting on behalf of the federal government, the Attorney General filed an intra-court appeal in the Supreme Court, seeking the annulment of the Supreme Court’s decision against trying civilians in military courts. The appeal requests a stay on the decision pending the verdict of the five-member bench on the appeal.

The petition contends that the bench established for the Military Courts case did not adhere to the Supreme Court Practice and Procedure, asserting that the five-member bench’s decision is legally flawed and ineffective. The federal government clarifies in the petition that it does not seek a military trial for all individuals detained in connection with the May 9 incidents. Instead, military trials are proposed only for those charged under the Official Secrets Act, and specifically for individuals implicated in damaging military installations during the May 9 events.

The Ministry of Defence’s intra-court appeal argues that the petitions on which the Supreme Court’s five-member bench based its decision were inadmissible. Nullifying the provisions of the Army Act and the Official Secrets Act, as per the appeal, would result in irreparable damage to the country. The Ministry of Defence calls for the annulment of the October 23 decision by the Supreme Court and the restoration of invalidated provisions of the Official Secrets Act. Additionally, the Ministry seeks the reinstatement of the repealed Section 59(4) of the Army Act and requests an injunction against trials in military courts until a final decision is reached on the appeals.

Subsequently, the Interior Ministry has also contested the verdict against military courts. The Ministry of Interior has filed an initial appeal in the Supreme Court, addressing the issue of trying civilians in military courts. A comprehensive appeal from the Ministry of Interior is anticipated soon. The appeal seeks the annulment of the decision against military courts.

Pakistan’s Senate has also passed a resolution, urging the Supreme Court to reconsider its decision that declared the military trials of civilians arrested for violent nationwide protests on May 9 null and void. The resolution emphasizes that the judgement should not be implemented unless it is reviewed by a larger bench of the Supreme Court. The resolution, presented in the upper house of Pakistan’s parliament, criticizes the Supreme Court’s verdict, stating that it appears to attempt to rewrite the law by encroaching upon the legislative authority of Parliament.

Regarding the May 9 attacks, the resolution characterizes it as a dark day and condemns the anti-state acts committed against Pakistan’s armed forces. It argues that the culprits of May 9, who attacked Defence installations and dismantled memorials of martyrs, deserve no empathy or leniency and should be tried in military courts, receiving stringent punishments to set an example for internal and external enemies, creating deterrence, and upholding the supremacy of the State. The resolution notes the lack of unanimity in the bench led by Justice Ijaz ul Ahsan, unlike previous benches that upheld trials of civilians under the Army Act. Consequently, the resolution contends that the decision is legally flawed and should not be implemented unless considered by a larger bench.

in light of this, and ground realities, the nation underscores the clear necessity of restoring military courts promptly, echoing its demand to swiftly punish terrorists and anti-state elements.

Abdul Basit Alvi
Abdul Basit Alvi
The writer is a freelance columnist

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