A big problem with military courts is that trials are held behind closed doors. This creates a sphere beyond the control of ordinary courts
The application of military courts is part of a wider dynamic that signifies the abandoning of the notion of delayed justice as a temporary situation. This dynamic is leading toward a de facto annexation and the creation of a parallel legal system under military control. The partial and formal application of criminal law in the military courts is part of the unique and colonial-like relations between the country’s civil and military legal systems in which the military system is excluded as different from and external to constitutional law but, at the same time, is included within it. Militaries throughout the world operate their own courts to prosecute military crimes that are not part of civilian legal codes. Militaries traditionally have extended this hermetic justice system to cover all crimes committed by their personnel, allowing the institution to sit in judgment of its own actions and escape punishment for human rights violations. This parallel legal system erodes the principle of equality before the law, threatens civilian control of the military and nurtures a culture of impunity.
Pakistan’s judicial system already provides for terrorism cases to be tried in separate courts, termed Anti-Terrorism Courts (ATCs), where judges are overworked to provide speedy decisions. But such courts have rapidly become choked with cases not related to terrorism, such as murder, drug trafficking and even kidnapping for ransom. At present, there are about 17,000 cases under trial in Pakistan’s ATCs. According to the Supreme Court (SC), as many as 85 percent of those cases are not even terrorism-related. Pakistan’s civilian court system can hardly be termed efficient. Overburdened with cases and prone to corruption, cases often drag on for years, with conviction rates hovering between five and 10 percent. Courts and judges are insufficient in number and the prosecution has been toothless and politically corrupted. It is an unnecessarily long, corrupt, incompetent and mighty expensive legal system.
The 21st amendment removes the right to a trial by civilian courts for those suspected of terrorist acts and exempts referrals to military courts from having to fulfil the citizens’ fundamental rights as described in the Constitution. An accompanying amendment to the Army Act extends the military’s remit to try civilian suspects who are members of religious terrorist groups for crimes including, but not limited to, raising arms against the state, murder, creating terror or insecurity, possessing and using explosives, including suicide jackets, kidnapping for ransom and receiving funding for such purposes. The amendment cites extraordinary circumstances as currently existing in Pakistan, which demand special measures for the speedy trial of certain offences relating to terrorism. Moreover, the decisions of such courts cannot be challenged in civilian courts, according to the Army Act. The amendments to the Constitution and Army Act carry a built-in ‘sunset clause’ of two years, meaning they will cease to be in effect on January 7, 2017, but who can guarantee if, at the end of two years, these same politicians will be going back to parliament and seeking an extension to the life of these courts?
To what extent, if at all, will these provisions be properly and constitutionally applied to persons having no military status? An understanding of the nature and character of the military courts is a prerequisite to an intelligent consideration of this question. First, it must be remembered that our military courts system is as old as the Constitution. Secondly, let it be understood that military courts are not courts in the truest sense of the word. They do not follow the same laws of procedure and evidence as civilian courts; the threshold for what constitutes evidence of guilt in military courts is lower than in civilian courts and occurs at the discretion of the officers presiding over the military court. The Pakistan Institute of Legislative Development and Transparency (PILDAT) fears that the objective of the 21st Amendment appears to be to lower the threshold for convictions.
As no one can successfully contend that a civilian court is not, in truth and in fact, a court, so no one can successfully maintain that a military court is not a court. Parliament has declared in times of peace that the proceedings of a military court are, from their inception, judicial, that the trial finding and sentence are the solemn acts of a court organised and conducted under the authority of and according to the prescribed forms of law. Within the limits of its jurisdiction, its judgments rest on the same basis and are surrounded by the same considerations that give conclusiveness to the judgments of other civilian courts. It is a court of Pakistan to the extent that a person tried and convicted or acquitted therein cannot be again tried for the same offence by any other court deriving its authority and jurisdiction from Pakistan. But it is a court of special and limited jurisdiction.
A big problem with military courts is that trials are held behind closed doors. This creates a sphere beyond the control of ordinary courts and outside the country’s system of democracy. Trials in such institutions should not be closed to the public although defendants would have the right to appeal rulings. Behind closed doors, the possibility cannot be ruled out that the rights of the accused could be violated. The application of the amended law violates the rights of defendants to a fair trial as much as it allegedly promotes them. Judges in the military justice system are military officers subject to a chain of command, who do not enjoy the independence to ignore instructions by superiors. Although they are sent to judge other people, military judges continue to seek acceptance among their own people through their judicial policies. This requires explaining the state of military court jurisdiction over non-military personnel for human rights violations in democracies and stresses that the variation in reform of military courts is necessary to create the relative balance between the extent of military autonomy and the strength of the civilian rights in peacetime. Over the past few months there has been growing consensus among all political parties and activist groups in Pakistan against the military trial of civilians, a sentiment also held by Human Rights Watch.
Referral of militants to trial before military courts for criminal violations will begin soon. COAS General Sharif previously said that the code of military justice gives them the jurisdictional grounds to bring civilians before tribunals. This law provides overly broad jurisdiction to the military justice system in Article 22, which allows for terrorists to be brought before military tribunals for crimes under the penal code if the crime takes place in any area in Pakistan. Since the Army Public School (APS) incident on December 16, 2014, the military appears to consider terrorism would be eradicated from the whole country and therefore every terrorist waiting decision is potentially subject to military trials.
The Pakistani military is set to officially begin trial of terrorism cases in the military courts to be headed by army officers. The courts have been introduced following an amendment in the Constitution to set up the courts for speedy trial and to avoid unnecessary delay seen so often in the regular judicial system. The rationale is quick dispensation of justice and not undermining the judiciary itself.
Apparently the 21st Amendment does not just violate the separation of powers in Pakistan’s Constitution; it also invites one to accept the conceptual superiority of military courts over civilian systems of justice. Inadvertently, it portrays the notion that the military is able to perform better than the civilians and, if you were to accept this principle, then it would still have far reaching implications not just for the judiciary but also for the core functioning of the police and investigative branches. Because military courts will be totally inaccessible to the defendants and to most of their defence lawyers, they are unable to use it to their own benefit and are thus even less able to conduct an effective defence. Defendants and their lawyers are therefore completely excluded from the lively and enlightened discourse of the military judges, who seek legitimacy in the country’s civil legal community prosecution as well.
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