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VIEW FROM THE COURTROOM: Military courts extension bills seek to widen jurisdiction

Published Mar 13, 2017 07:11am

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The federal government on March 10 tabled two bills in the National Assembly for giving extension to the military courts for two years to try terrorists. The bills – Constitution (Twenty-eighth Amendment) Bill 2017 and Pakistan Army (Amendment) Act 2017 – propose to widen the jurisdiction of military courts compared to the powers earlier available to it.

If these bills are passed in their present form it will make the existing anti-terrorism courts almost redundant as the military courts would be exercising jurisdiction in almost all cases of terrorism and will be trying suspected terrorists of all kinds.

These military courts were established after the passage of the Constitution (Twenty-first Amendment) Act, 2015 for trying terrorists attached with militant outfits using the name of religion or sect. The said law was enacted on Jan 7, 2015. Under Section 1 (3) of the Act, the provisions of this Act should remain in force for two years from the date of its commencement.

In the light of the said amendment, the Pakistan Army (Amendment) Act, 2015 was also enacted the same day, which also provided wide-ranging offences in which the military courts were empowered to conduct trials, but it was limited to only those suspected terrorists claiming or were known to belong to any terrorist group or organisation using the name of religion or a sect.

Now in the two proposed laws the government has widened the scope of the military courts proposing that the military courts shall try those suspects claiming or are known to belong to any terrorist group or organisation misusing the name of religion or a sect or by committing grave and violent act of terrorism against the state.

The offences in which such suspects proposed to be tried include: raise arms or wage war against Pakistan, or attack the Armed Forces of Pakistan, law enforcement agencies, judiciary, public servants or civilians or attack any civil or military installations in Pakistan; or abduct any person for ransom, or cause injury or death of any person; or possess, store, fabricate or transport or use explosives, fire-arms, instruments, articles, suicide jackets; or use or design vehicles for terrorist acts; or provide or receive funding from any foreign or local source for the illegal activities under this sub-clause; or act to over-awe the state or any section of the public or sect or religious minority; or create terror or insecurity in Pakistan or attempt to commit any of the said acts within or outside Pakistan.

The proposed amendments to the Army Act also include several offences mentioned in the Anti-Terrorism Act 1997, which would be tried by the military courts.

An expert on the subject said that after passage of these two bills it would be better to wind up the anti-terrorism courts for two years. He said that for the last two years most of the high-profile cases were referred to military courts whereas the ATCs were mostly engaged in cases of smalltime suspects involved in kidnapping for ransom, extortion or carrying explosive material.

According to Inter Services Public Relations, the military courts, which functioned for two years till Jan 6, 2017, had convicted 274 hardcore militants of which 161 were sentenced to death and 113 others awarded prison terms mostly life imprisonment. However, the information did not mention whether any of the accused facing court-martial was acquitted or not.

On March 8 five members of the proscribed Tehreek-i-Taliban Pakistan were executed in Kohat district prison. They were identified as Shoukat Ali, Imdad Ullah, Sabir Shah, Khandan and Anwar Ali. The ISPR stated that they were hardcore terrorists involved in multiple cases of terrorism.

So far 17 of the convicts who were awarded death sentences by military courts have been executed. Writ petitions related to convictions of around 35 militants are pending before the Peshawar High Court. Similarly, review petitions of several of the convicts of military courts against dismissal of their earlier appeals are also pending before the Supreme Court.

So far none of the superior courts has overturned any of the convictions awarded by the military courts to militants. When the Supreme Court on Aug 3, 2015 upheld the Constitution (21st Amendment) Act, 2015 by dismissing several constitutional petitions, it had explained the situation wherein the high courts could exercise powers of judicial review in cases of convicts of the military courts.

On Aug 29, 2016 the apex court dismissed appeals of 16 convicts of military courts. Most of those appeals had originated out of judgments of the Peshawar High Court, which had dismissed many writ petitions while conducting in-camera hearings.

While rejecting all the 16 Leave to Appeal Petitions, the Supreme Court bench had ruled about each of the case that the examination of the record revealed that the Field General Court Martial (FGCM) was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed thereunder.

The bench ruled that it appears from the record that the convict, being subject to the Pakistan Army Act, was tried for the offences triable by the FGCM. The bench ruled that no illegality in the conduct of the trial exists. The Law and the Rules, more particularly those protecting the rights of the accused were adhered to.

Legal experts believe that while the entire focus of government was on the setting up of military courts it had altogether ignored the criminal justice system and so far no improvement had been made in that system. One of the experts said that even after two years the government would be again requesting other political parties for giving further extension to these courts.

Published in Dawn, March 13th, 2017

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