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Military court sessions can potentially be held anywhere, and the punishment is served in the military custody.—AP/file
Military court sessions can potentially be held anywhere, and the punishment is served in the military custody.—AP/file

What distinguishes a politician and a statesman?

A politician is a person skilled in the arts of politics, whereas a statesman is a person skilled in the management of national affairs. The former gauges national temperament and public opinion, and reacts accordingly. The latter proactively shapes the public opinion.

Unfortunately for Pakistan, we possess politicians a dime a dozen, and statesmen fewer than the caspian tigers.

After all, have we not been here before? Back in the 1997-99 tenure of Nawaz government, when tussles between MQM and its splinter group MQM-Haqiqi were damaging law and order in Karachi every day, the military courts were utilised to expedite terrorism cases in the city. It was through a presidential ordinance that this was ensured.

The practice was allowed only for two months, during which at least two were handed the death sentence — one, allegedly a paedophile, another a common robber.

Editorial: Military courts

Legend has it that the two capital convictions given out through the system served as a deterrence enough, so that the crime rate in the city drastically depleted. I say 'legend' because the former IG Afzal Shigri and the supreme court of the time begged to differ.

After two months, the supreme court decided it had had enough and overturned the ordinance, declaring it illegal.

And here we are since, giving the same tried and tested methods another chance. Thinking out of the box, or learning from the west where we happen to have spent most of the last decade, not our cup of tea, is it, Mr Prime Minister?

My grouse, and my apprehensions are not with the military courts per se, but with the way military courts may function in Pakistan, specifically.

But first, lets be clear on what exactly military courts system is.

Also read: Martial law better than military courts in Pakistan: Altaf

This system functions under the Army Act 1952, which has its own four-tier structure at field, district and general level, besides the simple summary trial level.

The summary trials are the petty ones, and pretty much irrelevant in the present sum game. The judicial bench at the field level consists of three officers (could be three freshly inducted lieutenants), at the district level of three commissioned officers with at least two years of experience and at the highest level — the General level — of five officers with at least four of them being captain ranked, and none with a service of less than three years period.

All the sentences passed out are in single-paragraph statements, with no requirement of mentioning the findings and reasons for which the particular punishment is handed out. The court sessions can potentially be held anywhere, and the punishment is served in the military custody. All the sentences have to be confirmed according to the rules mentioned in the Act.

In Karachi's case, the normal composition of benches was one colonel and two majors overlooking the cases, hearing them on a daily basis and quickly dispensing justice.

Flaws in the military court system

It is no doubt one of the speediest trial systems, but it comes with many caveats:

1

The decision makers are not experts in fine points of law. These could be officers whose education may entirely have been in mathematics and biology, deciding upon the life of another without understanding what equity demands. The Act does allow for a Judge Advocate's presence — an expert from Army's legal branch — to assist in trial, but it is not necessitated except in the case of the highest level (General martial court).

2

The system is not governed by precedence. A new panel is formed for each case, and the absence of procedure and precedence allows for decisions to be reached on an equitable basis. Although allowing greater room for manoeuvre to the courts, equity is a questionable yardstick, after all, coming from non-experts; and being a subjective value, how could the fairness and certainty be quantified, and ensured?

3

This system is not subject to appeals in the civilian courts, even at the supreme court level. Although a person convicted in military courts may be re-trialed in the civilian courts (as per Article 96 of the Army Act 1952), it goes against the fundamental right of protection against double jeopardy (being prosecuted twice for the same crime — Article 13 of the constitution), despite overriding the section 403 of Criminal procedure code, which too outlaws double punishment.

See: Military courts: How the reluctant were brought round

Admittedly, desperate times require desperate measures, but couldn't the said measures have been novel and revolutionary, instead of solutions reminiscent of the much criticised Frontier Crimes Regulation (FCR)? And who is to say this amendment won't be challenged in the Supreme Court for being in contradiction with fundamental rights? Lastly, why couldn't the government have reformed the civilian Anti-terrorism system functioning since 1997 instead?

As is evident from the Karachi experiment of military courts, and from the functioning of the Anti-terrorism courts, the prime problem faced in the persecution of terrorists is the vastness of definition itself. Acts spurred by vengeance and enmity, as well as those done in public no matter the motive, are routinely booked under section 7 of Anti-terrorism Act, thereby clogging up the system.

The alternative to establishing military courts

Would the government ever endeavour to define terrorism more comprehensively and restrictively, so that instead of "creation of sense of fear or insecurity in society" (which, in essence, almost all crimes do), just the politico-religious motives are adopted as the distinction point for separating a terrorism case from the common criminal cases?

The Anti-terrorism Act ordains that the cases must be decided within seven days. The reason that doesn't usually happen is the non-cooperative attitude of the police and the overburdening of the courts. At the appeal level, too, the vast number of cases pending in the high courts and the Supreme Court prevents immediate dispensation.

Read on: Multi-party body focusing on criminal justice system

But these concerns could have been addressed by associating NACTA with Anti-terrorism courts, thereby allowing the Anti terrorism courts liberation from the clutches of the inefficient police force.

Also, a special structure with separate benches at High Court and Supreme Court level could have been reserved for the appeal stages. Moreover, the number of district level Anti terrorism courts could have been increased, thereby decreasing the workload. Any convictions could have been served in military custody.

Repeatedly in our experiments we have favoured expedience over the proper, and see where we stand today.

Is there a necessity to overburden the Army with the judicial duties? Is the government shying away from taking responsibility by handing terrorists to the Army, or is it the excessive trust on Army and none of it in the Judiciary that is exhorting the move to establish military courts?

The Blackstone maxim reads, "It is better that ten guilty men walk free than one innocent man is incarcerated". Even if a single person is wrongly hanged in the reactionary haste, the entire purpose of justice would fail.

A statesman would realise that. A politician would not.


Author Image

Badar Iqbal is a lawyer. He holds a law degree from BPP University, UK and an engineering degree in Electronic and Communications from Cardiff University. He writes intermittently for various national and international publications.

Find him on twitter @badarchaudhary


The views expressed by this writer and commenters below do not necessarily reflect the views and policies of the Dawn Media Group.


Comments (47) Closed



Mian Shahid Mehmood Dec 26, 2014 05:15pm

In Pakistan, the lawyers as a class and community are responsible for the failure of civil judicial system. They are solely responsible for prolonged pendency of cases in courts because of their pressure tactics and non-cooperation with the court. They book the cases with the sole motive to misuse the process of law and play hand in glove with miscreant elements. They go on strikes just on petty matters to the chagrin of poor litigants. Ultimately, the responsibility of delay in the trial is imposed upon the judge. No legal or judicial reform package in Pakistan can see the light of success unless the lawyer community is not reformed. Only for this reason, i.e.lawyer community is incorrigible, the society is unwillingly supporting the establishment of Military Courts in Pakistan.

Aafaaq Ali Khan Dec 26, 2014 05:45pm

I am unable to comprehend one thing that why on earth we need to do a comparison in such situation. Justice delayed Justice Denied and that's the core issue of Pakistan.

Sunil Dec 26, 2014 06:18pm

Military courts is for military people who break, the discipline, absent without leave, insubordination, malingering, ill treating subordinates, including assisting the enemy, misconduct on operations, mutiny and desertion.

ashok kumar lal Dec 26, 2014 06:21pm

why is military now entering judiciary.A very wrong step.

Anees A. Dec 26, 2014 06:59pm

@ashok kumar lal Military courts are being proposed because judiciary is taking a long time and there is no execution.

Agha Ata Dec 26, 2014 07:04pm

Military courts are unapproachable and safe of threats from the militants. They have also attacked army installations, therefor it is not very undesirable to let them handle the criminals. The most important thing is the safety of Pakistan

Paul Dec 26, 2014 07:29pm

An insightful article that preaches sanity amid the current poignant situation in Pakistan.

Military courts for terrorism cases can at best be a short term solution, what is really needed with urgency in Pakistan are strong anti-terror laws that follow international best practices such as "guilty until proven innocent" for terrorism cases that transfer the burden of proof to the accused since it is extraordinarily difficult to prove causality with perpetrators of bomb attacks, indefinite detention, strong review mechanisms, disincentives for waging war against the country or another country and so on.

That said, Pakistan's lack of a strong and independent judicial machinery as can be seen by the recent release of an LeJ leader and others means that military courts are needed in the short term if Pakistan has to purge itself of these homegrown terrorists. However knowing the Pakistan military's penchant for taking up all space like the proverbial camel, if not a judicial appointee, at least a political appointee must take part in these military tribunals.

On another point, the military must also allow embedded journalists to report on Operation Zarb-e-Azb. It is ludicrous to contend that there have been no civilian casualties in the ongoing operation.

Feroz Dec 26, 2014 07:51pm

Decisions like these taken in anger can come back to haunt the nation, besides undermining the Judiciary. Who is to decide whether a case deserves to go to the military court and why. The Political class by accepting this proposal has not taken into account the welfare of citizens or scope for abuse. This along with the passing of PPO are retrograde measures that civilized societies must avoid.

Gaurav Arya Dec 26, 2014 07:55pm

@Anees A. - Friend, if that be the case you are solving the wrong problem. Indian courts are the same. But we need to make our courts better. You cannot have a replacement. Will you agree to a sessions judge leading a Pak army battalion in battle?

shahzad Dec 26, 2014 08:42pm

Mother of all evils is injustice, and it is the Pakistan main issue.. good decision is taken

Faisal Dec 26, 2014 09:28pm

COAS clarified that all cases handled by military courts will be first approved by federal govt. Only top notch terrorists will be tried the court and no political figure will be targeted. The duration of such courts will be only 2 years.

Zahid Dec 26, 2014 10:04pm

Military doing judicial duty. Next we should send some judges for military duty. Young officers without knowledge of the fine points of law will decide about the life of another human. Chances of errors run high. Best would have been a jury combination of military, judicial, political personnel to supervise such trials to ensure no injustice is done.

ahsan7979 Dec 26, 2014 10:17pm

Our civil courts are a joke. Otherwise there would be no need for these military courts.

pradeep Dec 26, 2014 10:20pm

This is a risky decision for Pakistan. Even the worst terrorist deserves a due judicial process. This decision to persecute soulless terrorists should not end with Pakistan losing its soul.

AXH Dec 26, 2014 11:16pm

@Sunil - In general, I agree with your arguments. However, in this particular case, you have to look at the reason in a bit depth. The civilian government has failed miserably to deliver justice. It has failed to provide protection to judges and the witnesses in cases where powerful and ruthless religious mafia was behind the crimes. As a result of this vacuum, the perpetrators have not only been roaming freely but they have also intensified their activities. We should look at it more like a shot in the arm with the hope that when this is over, there will be enough stability and courage in the justice system and the government that they will start delivering justice without fear.

Parvez Dec 26, 2014 11:17pm

Anything....just anything.....even a local panchayat court would be better than what goes as our judicial system today.

Samir Dec 26, 2014 11:37pm

You have given reasons that suggest why the courts actually suit the current environment. A known terrorist should be convicted and taken care of instead of him getting away because of technical issues that terrorists use to their advantage. In the age where child slaughter is used as a war act; business as usual cannot happen. My humble suggestion to avoid over thinking at this point of time.

av8r Dec 27, 2014 12:32am

Sorry Badar but disagree with your logic. Its flawed all the way thru. If the judiciary wasn't corrupt and bought out by politicians, none of this would be needed but as such, present circumstances dictate that new precedent be set to fix this scourge of taliban.

abdur Dec 27, 2014 12:33am

@Mian Shahid Mehmood totaly agreed

ali Dec 27, 2014 01:27am

A survey conducted by Dawn indicates 75% of its readers are in favor of military courts.Besides other reasons the main reason is that the civil courts are slow, corrupt and let go many terrorists.People are not interested in definition, they want law and order and the civil courts were not giving them this as such military courts were the only other option.

M. Jan Dec 27, 2014 03:14am

These are extraordinary times in Pakistan requiring extra ordinary measures. The use of military courts is not ideal but Pakistan has no other option left. Civilian institutions have been bickering while the country has been on fire. Drastic action is needed to put the country back on track. The civilian institutions can take back the charge once the country is cleansed from the scourge of terrorism and extremism by the army. Lets hope the civilian institutions grow up fast in the meantime to attain the maturity and professionalism needed to maintain order.

Raja Dec 27, 2014 04:18am

We have very useless political leaders in Pakistan who are not capable to handle terrorists so our ONLY solution for this problem is the "military courts".

Pragmatist Dec 27, 2014 05:00am

Military courts are essential for the elimination of the religious fanaticism and terrorism in Pakistan.

Naseem Dec 27, 2014 06:10am

Non-sense as far as I am converned about the Blackstone maxim. The time has come to follow the Khalkhali maxim with respect to terrorists of all shades and color. If an innocent is hanged he/she will go straight to paradise. The terrorists don't follow any maxim.

Muzaffar oklahoma Dec 27, 2014 06:27am

The bars and the court system have left a vacuum for 67 years.They let go of their own domain and now that is being filled by the military courts.And more worrisome for them is that the public opinion has also shifted in support of the military courts.

Srinivasan D A Dec 27, 2014 06:50am

Summary justice by the Military courts for terrorists will only create a situation for those who are not liked by the politicians liable to be branded as terrorist and handed over to the military courts.The military courts will try them, by officers who have no legal acumen/compassion and sentence them to death.This will lead to a situation similar to the blasphamy laws where in any body can accuse anyone else for blasphemy and tried.Such summary sentencing will lead to discontentment and resentment amongst the people and lead to anarchy.Right thing is to study the lacuna in the present judicial system and amend the laws for remedy for just trial and speedy verdict.

Jarnail Singh Chahal Dec 27, 2014 06:57am

only pakistan army can fix the menace of terrorism.

Rex Minor Dec 27, 2014 06:57am

It is the judiciary once again to defend its integrity by disallowing the military to rde roughshod again with the support of declassified civilian leadership and making a farce of the democracy.

Rex Minor

AA Dec 27, 2014 07:20am

I suggest Pakistan never opt to set up Military courts to resolve terrorist/internal conflicts . The best solution is negotiation. Finding out who sponsor terrorist activities. Pakistan Intelligence must work hard to find out who train these terrorist. Pakistan should use defense measure and get support of UNO-otherwise, the videos are made for future use against state of Pakistan-remember Iraq.

Pradeep Dec 27, 2014 07:36am

The usual Pakistani grouse against India's stance on prosecuting Hafiz Saeed and Lakhvi is insufficient evidence. However in military courts it is not necessary for "evidence" to be made public and instead reposes "good faith" on the military judges. Suddenly military courts to prosecute terrorists becomes ok. This is slippery slope for Pakistan. Perhaps this link would be of use to Pakistanis https://en.wikipedia.org/wiki/NKVD_troika

Mustafa Dec 27, 2014 08:14am

@ali;

"A survey conducted by Dawn indicates 75% of its readers are in favor of military courts."

If 75% of Dawn readers support military courts, it can be said with a great deal of certainty that society at large is about 90% in support of military courts.

El Cid Dec 27, 2014 08:54am

Military courts are essential to crush the democratic voice and eliminate opposition leaders that cannot be defeated through the normal democratic process.,,and hide the crimes committed on the population by the establishment.

Gawal Mandi ya in Texas Dec 27, 2014 10:26am

Its not about the laws,our system is weak and corrupt,the poor gets hanged and the rich walks,EVERY TIME.With everything going on,WE simply cannot depend on the civil courts and judges,they are incompetent.Terrorism is not going to go away if we continue this practice,I agree the military courts are not a long term solution but its a need today,a must have.And lets not get into the education of the military personal,how many of these so called lawyers are educated enough to even represent someone? The military courts will be quick in handing out convictions,no lolly gagging around,which we need,the people need to understand that its not acceptable to even think about killing the innocent.Its high time someone gets the attention.And stop with the constitution word,how many actually follow the constitution??? What happens to them?? NOT A D..N THING.Like it or not,its the only way to go.GO ARMY.

Azhar Dec 27, 2014 10:27am

In terrorism cases that are pending for a long time or when the Judges, Lawyers and witnesses are threatened those cases should be sent to the Military court.

Heart Broken Dec 27, 2014 10:32am

@Zahid bro we dont need fine points of law. Just want hard core terrorists to b punished timely. Our present system needs an overhaul. But at this time we need speedy trials...

Shujaat Ali Khan Dec 27, 2014 10:47am

Is it Injustice that one innocent person is punished when ten terrorists are allowed to walk away , free to kill hundreds of other innocent men, women and children!

khan Dec 27, 2014 11:14am

@ashok kumar lal Khumar ......stay out of our affairs............the answer to that question is because judiciary and government could not deliver

Laksh Dec 27, 2014 12:01pm

Country is on the verge of being overrun by hoards of barbaric terrorists, innocent children in schools are being blown mercilessly by point-blank bullets in the heads; and here we are busy challenging the legalities of military courts. Is it legal to butcher the helpless school kids? Extraordinary atrocities of terrorists demand extraordinarily ruthless form and methods of deterrent punishment. Prevailing laws which appear to suit the criminals should be amended to deter the barbarians. If civilian courts are not able to gather courage to conclude terrorism related cases quickly, why shy away from alternate military courts, though some may argue over their legalities Now is not the time to argue over technical legal issues, it is time to be ruthless, perhaps as ruthless as Saudi Arabia or China to provide solace to the aggrieved.

M K Sufi Dec 27, 2014 12:47pm

@Mian Shahid Mehmood You are very right. So many lives have been lost in sorting out terrorism issue. Military Courts should not show any mercy. The whole Country has been terrorized because of the terrorist. They are the present day Pharaohs, who ordered killing of new born male infants. What sympathy have these Human rights activities for the innocent children killed by these barbarians in Peshawar and elsewhere. If the military has come work with the civilians, what is the harm.

El Cid Dec 27, 2014 01:59pm

@Mustafa You obviously never had a class in statistical theory...reasoning or logic.

james Dec 27, 2014 02:40pm

@Feroz ,my friend ,the military courts make straight decision and not influenced by any party.the terrorist need to punished not let off the hook.The lawyers are mostly corrupt aswell as the judges hence no comparrison.

Dost Mohammed Dec 27, 2014 03:41pm

The Criminal Justice System in Pakistan - the hierarchy of the judiciary, prosecutors, and police - simply does not work, even by the most lenient benchmarks of what it should do. Of course each part of the system will be keen to blame the other for it, not to mention political neglect and interference. In such a situation, the introduction of military courts is not surprising. It's another sign of the failure of the civilian Criminal Justice System to deliver. It's respected by no one: the criminals or the innocents.

aftab Dec 27, 2014 03:45pm

Example of our country is like sick man lying on death bed while every one wishing that it will be ok without medicine.I have read the opinion of my respectable friends against and in favor of military courts. I just need one answer from my all friends who oppose military court,why need has been felt for parallel judicial system,simply because present judiciary have miserably failed to address the issue.I agree that military courts is not the ultimate solution but under present environment,this seems viable solution.I know many hardcore terrorists once apprehended were set free because of weak judicial system.I suggest that reforms be carried out in present judicial system to meet present day challenges.

Med Student Dec 27, 2014 03:56pm

Lawyers take too long to try terrorists, so we are sending in jawaans. Long live Pakistan (Army)!

ahmedj Dec 27, 2014 05:17pm

@Mustafa "A survey conducted by Dawn indicates 75% of its readers are in favor of military courts."

The survey doesn't say all the readers are from Pakistan. On-line readers from India are more than readers from Pakistan.

unknown Dec 27, 2014 05:47pm

@Gaurav Arya Mr Arya we don't have Immunity for armed forces like in India

pradeep Dec 27, 2014 09:35pm

Oh my... looking at the reactions of Pakistanis in this forum reminds me of a dialogue from Star Wars... "So this is how liberty dies... with thunderous applause" All the best.