ISLAMABAD: While the review petitions against about 30 convictions of the military courts are pending adjudication before the Supreme Court, political parties have started a debate on the revival of military’s power to court martial civilian terror suspects.
During the last two years, only a few death sentences announced by the military courts were executed as the convictions were challenged in the superior courts.
According to official figures, 274 cases were referred to military courts out of which 161 were awarded the death penalty and 113 imprisonment of varying durations. Out of the 161 convicts, only 12 have been hanged.
Lawyer says execution of military court convicts was stalled due to stay orders from superior courts
Besides the Supreme Court, several petitions against military court convictions are pending in the high courts.
The Supreme Court and the high courts have issued stay orders against some of the convictions, said Laiq Swati Advocate.
Mr Swati is the counsel for 12 convicts of the military courts and pursuing their cases in the Peshawar High Court, Lahore High Court and the Supreme Court of Pakistan.
He said since the superior courts had issued stay orders in some cases, the execution of the convicts was stalled.
On January 8, the Inter Services Public Relations announced the closure of the military courts after the completion of their two-year term.
In 2015, the parliament empowered the military to try civilian suspects of terrorism with an expectation that the criminal justice system would be overhauled by 2017. However, the federal government could neither bring an improvement to the judicial system nor enhanced the capacity of the courts.
This is because the 21st amendment to the Constitution, which empowered the military courts to try civilians, did not give them an absolute power - the execution of convicts.
In the criminal justice system, after a sessions court awards the death sentence, the convict is hanged after the high court confirms the sentence. In case of an appeal, the sentence attains finality at the Supreme Court.
However, in the military courts, after an accused is found guilty the appellate forum is the military court of appeal.
After the sentence is confirmed by the appellate forum, the chief of the army staff approves the sentence and the military hands over the convict to the jail administration in the relevant jurisdiction.
However, in August last year, after giving a nod to the 21st amendment the apex court kept with itself the power to review the punishment awarded by the military courts.
The Supreme Court admitted the petitions seeking a review on the convictions announced by the military courts which are still pending adjudication.
According to a source privy to the military courts, the 21st amendment could not bring the desired results as initially the superior courts stayed the executions. As a result, only 12 out of 161 were hanged.
The source said the stay orders against the executions also discouraged the presiding officers of the military courts who concluded the trials in a short span of time.
He claimed that the objective of the 21st amendment was to hang hardcore terrorists, which could not be fulfilled due to the judicial ‘super check’.
Legal expert Ahmer Bilal Soofi said since the military courts were established under the concept of the ‘law of war’, so in order to get the desired results any appeal against the conviction of the military courts would have been treated under the same law.
In addition to putting the military courts-related case on a ‘fast track’ before the superior courts, Mr Sofi said there was a need for overhauling the Anti-Terrorism Act (ATA) 1997.
“Military courts were a short-term solution not a permanent remedy.” He said the government should develop necessary infrastructure for the speedy trial of terrorists under the ATA, which included the establishment of well-equipped judicial compounds for the trial of hardcore terrorists through video link besides improving judicial logistics and capacity building of the judges.
Syed Naveed Qamar, the parliamentary leader of the PPP, said the government had failed to strengthen the criminal justice system and now wanted political parties to support the extension in the tenure of the military courts.
He said the government should satisfy the opposition parties for the revival of the courts.
MNA Pervez Malik of the PML-N, however, said in the given circumstances the military courts were the only solutions to curb the menace of terrorism.
“We need more time to upgrade the criminal justice system and, therefore, the military courts should be revived till the system is overhauled,” he added.
Published in Dawn, January 11th, 2017