A parallel judicial system?

December 25, 2014


The image shows a judges' hammer. —Reuters/File
The image shows a judges' hammer. —Reuters/File

ISLAMABAD: As the government moves to establish military courts to quickly and efficiently try civilians accused of terrorism, former military officers associated with such courts warned of ‘negative’ consequences of such adventure.

The military courts are governed by Army Act 1952 and these courts deal with the scheduled offences as mentioned in the act. In certain circumstances, the military courts can also try civilians as well.

It is ironic that the last time such courts were established was under the Nawaz Sharif government, in 1998.

Know more: Political leaders reach consensus on military courts

Before that, military courts were established in April 1977, by the then-prime minister to try civilians. However, these were declared illegal by the Lahore High Court (LHC) in the famous Darvesh Arbi case.

Both the civilian governments that established military courts – in 1977 and in 1998 – were overthrown in military coups

It may be coincidence, but both civilian governments that established these courts – in 1977 and in 1998 – were overthrown in military coups.

As prime minister, Sharif, through Ordinance No. XII 1998, allowed the establishment of military courts to try civilians for ‘heinous’ crimes. However, these were struck down by the Supreme Court on February 17, 1999, which declared these courts unconstitutional and transferred the cases pending with them to the Anti-Terrorism Courts (ATCs). Cases in which military courts awarded the death sentence were mostly related to incidents of target killing, dacoity and other heinous crimes. These courts were only established in Sindh.

Talking to Dawn, rights activist Farzana Bari said that she does not support the establishment of the military courts and that the government should, instead, empower existing courts instead. “I don’t think there would be need of military courts when civilian courts work efficiently,” she added.

Retired Colonel Inamur Rahim, who was a Judge Advocate General (JAG) and coordinator of six military courts established in Malir and Hyderabad in 1998 told Dawn that the establishment of military courts to try civil offences entails certain ‘risks’ factors.

After the military courts executed the death sentence issued to a convict, three armymen were assassinated the next day

He said that the then-government established military courts because of the deteriorating security situation in Karachi, the financial hub of the country.

He claimed that after the military courts executed the death sentence issued to a convict, three army men were assassinated the very next day.

“The military courts remained intact for one and a half months, awarded the death penalty in two, and life imprisonment in over a dozen cases,” he told Dawn.

According to Rahim, the Standard Operating Procedure (SOP) for these courts was evolved soon after the promulgation of the ordinance.

After the registration of the FIR and the arrest of the accused, the coordinator – who was a military officer and a lawyer – decided whether or not the case was to be taken up by the military court or not. If he decided in favour of sending the case to the military court, the investigation report and charge sheet was handed over to the accused.

“The accused was then asked to arrange for a lawyer or was offered assistance of the government lawyer for his defence within 24 hours,” he said, which indicates the speed with which the courts moved.

“After completing these requirements the trial was concluded within seven days.”

Col Rahim was also of the view that military courts, which are established in specific Corps Headquarters, disturb the routine functioning of the corps.

“A single military court consists of a presiding officer - an officer of Lt-Col rank - and two members who are usually majors. Then it has a Judge Advocate General (JAG) who too is an officer of Lt-Col rank. In addition, the prosecutor and the defending officers are also at least of major rank. In addition, it also needs administrative staff which included officers of Lt-Col, majors, captains and their subordinates,” he pointed out.

He argued that when all these senior personnel were busy in running a court, their other work suffered.

Another expert with a similar experience is retired Colonel Malik Mohammad Akram who was also of the opinion that military courts are meant to “maintain discipline” within the force.

“On the other hand, civilian courts that deal with criminal cases are aimed at maintaining law and order in the society. The presiding officer of the military court may not be well versed with the legal practice,” he said.

He suggested that instead of establishing the military courts, the government could enhance the number of ATCs and increase the number of judges to preside over them.

Published in Dawn, December 25th, 2014