The provisions of Constitution (Twenty-Third Amendment) Act, 2017, through which two- year extension was given to the military courts for trying cases of terrorism, lapsed on March 30 and the government now needs to amend the Constitution of Pakistan to give further extension to these courts.
Similarly, the amendments made in The Pakistan Army Act, 1952, through The Pakistan Army (Amendment) Act, 2017, for setting up of the military courts also ceased to exist.
Both the Acts – Constitution (Twenty-Third Amendment) Act, 2017, and The Pakistan Army (Amendment) Act, 2017 – were enacted by the Parliament in March 2017 for a period of two years and the President of Pakistan had given assent to the said two laws on March 30, 2017.
Section 1(3) of the said constitutional amendment states: “The provisions of this Act shall remain in force for a period of two years from the date of its commencement and shall cease to form part of the Constitution and shall stand repealed on the expiry of the said period.”
While the federal government has already shown its desire to give further extension to these courts, it has to seek support of the major opposition parties as without a vote of two-thirds of the total membership of both the Houses of the Parliament the required constitutional amendment could not be passed.
Some of the legal experts who had represented convicts of military courts before the superior courts believe that in case the government intended to give extension to these courts, it should introduce provisions for safeguarding certain rights of the accused facing trials, specially the provision of a counsel of their choice in the trial.
These courts were initially established after the passage of the Constitution (Twenty-first Amendment) Act, 2015, for a period of two years, which expired on Jan 6, 2017.
In the light of the constitutional amendment of 2015, The Pakistan Army (Amendment) Act, 2015, was also enacted for a period of two years. That Act 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.
As the 2015 amendments expired in Jan 2017, therefore, in the two Acts passed in 2017 it was provided that these Acts should be deemed to have taken effect on and from Jan 7, 2017.
Inter Services Public Relations Director General Major Gen Asif Ghafoor had informed mediapersons in January that a total of 717 cases were referred for trials by the military courts during last four years of which 646 were disposed of. He had stated that 345 hardcore terrorists were sentenced to death of which 56 had so far been executed.
A total of 296 other convicts were sentenced to imprisonment of different terms whereas five of the accused were acquitted. According to the said data, the conviction rate of military courts is 99.22 per cent. Majority of the convicts especially those facing death penalty have moved the superior courts from time to time, including the Peshawar High Court.
Initially, the Peshawar High Court used to provide interim relief to these convicts by suspending their death sentences, but did not provide permanent relief to them and had continued to dismiss writ petitions filed against the military courts orders.
However, the situation changed after the present Chief Justice Waqar Ahmad Seth assumed office on June 28, 2018. A major development took place on Oct 18, 2018, when a bench headed by PHC Chief Justice Waqar Ahmad Seth on multiple grounds set aside convictions of detainees in 75 of the writ petitions and ordered to set them free.
The federal government has challenged the said judgment before the Supreme Court, which has suspended the PHC’s order whereas the appeals have been pending before the apex court.
Recently, on March 19 a PHC bench gave last chance to the ministry of defence to produce records in another 90 writ petitions of military courts’ convicts mostly awarded death sentences. The court has now fixed May 28 for next hearing with the direction to positively produce the record.
Some of the lawyers appearing for the petitioners believe that the federal government had been delaying the production of record in these cases as it had been awaiting the outcome of appeals pending before the Supreme Court.
One of these lawyers said that in the light of the findings of the high court in its last year’s judgment, there was likelihood of acquittal of the convicts in these 90 cases and due to the same reason the government had been avoiding to produce the relevant record of these cases.
In its detailed judgment in the earlier 75 writ petitions, the high court had ruled that these cases of convictions were of no evidence and were based on malice in law and facts. “The way all the convicts have been proceeded right from their arrest from different parts of the country, in the custody of the agencies and landing them in the Internment Centres for months/years, is not appreciated at all for the purpose of convictions,” the bench had ruled.
The bench had discarded the confessional statements of all the convicts by discussing the flaws in them.
Earlier, in 2017 the high court had overruled the objections raised against confessional statements of convicts on the basis of which they were convicted by military courts.
On May 25, 2017, a bench headed by then Chief Justice Yahya Afridi (now judge of Supreme Court) had upheld convictions of 37 militants by the military courts.
One of the major arguments by the counsels of those convicts was about the mode and manner of the confessional statement recorded by these convicts. However, the bench had not accepted that argument.
Experts believe that the functioning of these military courts shrouds in secrecy starting from indictment of an accused up to conviction. Even the close family members of the convicts were not aware about these trials.
Despite the provision available in the 2017 amendments in the Army Act for providing a counsel of his choice to an accused, in almost all the cases before the military courts they were not extended that right and the government claimed that the accused had declined to engage a counsel and thus the state had provided them a private counsel.
Some of the legal experts said that keeping in view the improved security situation in the country the government has to provide a strong justification for giving extension to these courts.
Published in Dawn, April 1st, 2019