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A parallel judicial system?

Published Dec 25, 2014 06:32am

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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


Comments (20) Closed



Confused Dec 25, 2014 06:36am

Only tinpot countries have military courts. A democracy cannot exist without due process supervised by those well versed in the laws of the country.

ajmal Dec 25, 2014 07:25am

agree

AZEEM Dec 25, 2014 08:35am

I think before establishing Military Courts Nawaz Sharif should resign and sorry to nation for his incompetence.

Nizamuddin Ahmad Aali Dec 25, 2014 08:39am

The military courts is not a democratic justice. The Judges will be dictators giving judgment only on gut feeling and without case review. Most of he judgments will be two liners without proper representation arguments The judges will be the rank of captain or major of the army with no or very little training in law. This is incumbent upon the PM to deliver justice and render with compassion. The PM has reduced his and his cronies risk of being killed. Bluntly this is cop out from the risk. Granted most of the convicts will be dangerous, but the judges have a choice. Leave the job and let some one become judge. Nation should not accept the military court system.

anony Dec 25, 2014 08:45am

I call for a martial law. Nothing else seems to be working or is the correct option. Throw this useless government out. Long live Pak Army. Long live Pakistan.

Anwar Amjad Dec 25, 2014 09:42am

The civil courts are meant for common criminals and not for militants wielding AK47 rifles. Anti-terrorism courts have also not been able to curb terrorism in the country as the civilian judges are afraid of punishing the terrorists for fear of reprisals. The claim that after the military courts executed the death sentence issued to a convict, three armymen were assassinated the next day is reason enough to believe that civilian judges are inadequate to deal with such dangerous criminals.

Abdullah Dec 25, 2014 09:50am

I support Military courts against Taliban.We have to make difficult decisions to protect our children. Taliban and their sympathizers dont understand any other language apart from brute force.We should not act like pigeons. The day is not far when Taliban will be attacking Cricket/ football stadiums, schools, hospitals, wedding ceremonies in Punjab, Sindh and Karachi as well.

observer Dec 25, 2014 10:29am

A Tale of Judiciary in Pakistan.

(i) Bhutto convicted of Murder.

(ii) Sharif convicted of Terrorism.

(iii) Lakhvi released on Bail.

(iv) Malik Ishaq walks Free.

ali Dec 25, 2014 10:55am

Military courts are the only option for swift justice. Otherwise forget about it.

Reader Dec 25, 2014 11:16am

Our civilian judicial system has terribly failed not only because of shortage of resources but also due to corruption. Senior Judges are busy doing politics while lower courts reek with corruption. From judge to reader everyone takes money. Lawyers are involved in escape of convicted criminals from court premises, intimate judge, pressurize them to get judgments of their own liking. In this situation when we are at war, civilians courts can't do anything.

Ali Dec 25, 2014 11:16am

A businessman PM shifting his main responsibility to enable him to focus and concentrate more on his business development and dont waste time of other 'Petty' issues 'for him'

shehryar Dec 25, 2014 11:40am

There are weak links in every institution but it doesnt mean that we have to wrap them up to achieve desired results. Military courts should not be allowed and SC should rule against their formation.

Ahmed Dadapouta Dec 25, 2014 11:50am

The time is short for Pakistan to correct this spreading cancer of terrorism in every province of the country. The presence of civil courts were not able to save the lives of precious children killed in a barbaric attack by the Jihadis. Military courts are what is exactly needed for our country to deal with this situation. Most strong democracies in the world today, at one point or another had systems similar to military courts to purge excess of evil among them. Let us hope that it will eliminate terrorism and lay a strong foundation for democracy to take root in Pakistan. To live in permanent fear and trepidation is not the name of democracy. Let's trust our valiant men in uniform.

hyat Dec 25, 2014 12:22pm

@Ahmed Dadapouta agreed.

Yousuf47 London Dec 25, 2014 12:34pm

Whilst it may be construed as curtailment of civil liberties, extreme events sometimes require extreme measures with civil societies perhaps taking a breather after years of civil unrest resulting in deaths to so many thousands of innocent lives. The West has witnessed home grown terrorism from Muslim extremists but prosecution record falls short as not all evidence is brought before the Court for fear of exposure of sensitive evidence gathering. Nawaz perhaps in consulting with other political parties has made the right decision and be commended.

Imran Dec 25, 2014 09:06pm

A more sane policy would be to abolish all military courts. To have all citizens whether in or not in uniform, tried by the same laws and procedures, by the same courts.

san Dec 25, 2014 09:07pm

@observer Hafeez Saeed roaming freely. No one is bothered about his arrest.

waheed Dec 25, 2014 09:25pm

Right resolve is needed.. fingers crossed..

Kamal Gupta Dec 26, 2014 05:31am

There has been a soft, creeping coup going on in Pakistan for the last year or so. The democratically elected government is being sidelined, its powers clipped. To an extent where the PM appears more like a District Magistrate or Tehsildar.

This is an evolution from the army coups that the country is known for.

Nizamuddin Ahmad Aali Dec 26, 2014 10:14am

I red the constitution again and again and I could not find a provision of military court under civilian government. Why the deviation. ???