Pakistan announced plans to set up special military courts to counter terrorism as a new anti-terrorism strategy in the aftermath of the Pakistani Taliban school massacre that killed 150 people, including children.
Extraordinary circumstances require extraordinary measures, military courts are widely felt to be the only viable option for stemming the sadistic tide of terrorism which has swept Pakistan.
Critics opined that military courts or reinstating the death penalty were cosmetic measures that would be insufficient to improve the legal process and the police as an efficient organisation in the long run.
These critics feared that these steps would hugely strengthen the role of the military in the country and weaken democracy, they were also unsure whether there would be any civilian oversight or media access.
These fears could be considered seriously if Pakistan were in a normal situation, the country is at war and a major army operation is going on since months to root out terrorist proxies and mercenaries.
Only the army can crush them effectively so that civilians breathe a sigh of relief and the country is saved from this threat.
Pakistani superior courts are strangely hesitant in the speedy resolution of terrorism cases.
Every process takes painstakingly long and even when complete, the criminals are not punished and at times not even sentenced.
The judiciary was not always like this, there have been numerous venerable judges that left noble examples of justice and intellect.
Judiciary has been politicised due to excessive social elite inter-action, it is somewhat compromised as an institution.
Controversies and politics have almost destroyed the credibility of the judiciary, one of the most honourable pillars of state.
Judicial commissions need to investigate how to remedy these ineffectualities.
Judges never used to meet politicians or businessmen socially or had friends outside legal circles to prevent any outside influence on their judicial decisions.
Surprisingly, in the last decade some judges became media figures and recieved too much publicity, public access and social mingling diminished their ability to deliver pure justice.
Suo motu powers and contempt of court notices were frequently used to control the narrative at a time when criticism was mounting.
Sometimes some members of the judiciary also got accused of meddling in politics for pure personal aggrandisement.
Some judges indicated displeasure over military courts encroaching in their domain but they should understand the need of the hour.
Military courts are the best option for the government to hold speedy trials of terrorists and those involved in heinous crimes, where the criminal meets his end within the week.
The cancer of urban warfare and terrorism has to be dealt with on a fast-track basis.
The nation is at war and the army has severely damaged their terrorist infrastructure, the incidence of suicide attacks etc has gone down by 80%, but now attacks that do happen are on a war-scale, such as the Wagah border attack, Karachi airport attack and the Peshawar attack.
Terrorists have stooped to a new low, even in war civilians are not attacked and children are not targets.
In the Peshawar attack, the TTP aim was to decimate as many children as possible with brutality. Lady teachers were burnt alive as they tried to save their pupils.
Do such savages deserve mercy or a humane approach?
Thousands of TTP convicts are sentenced to death yet in jails since years, terrorism has to be dealt with an iron hand by promulgating special laws now.
Some people say that executing death row inmates isnt going to destroy the TTP, s ideology, but do mercenaries have an ideology and are they individuals really worth saving?
They are planning jailbreaks all the time and whenever they are successful in escaping they strengthen the terrorist network.
Some of the death row population are masterminds of these sadistic suicide groups.
The TTP has sympathisers who want to stop the executions but there is no reason to be lenient with terrorists or their approvers anymore.
Some segments of society do not understand the urgency of the matter, times have changed and the public wants to see action and results, not mere words.
A few different options were discussed by the civil and military leadership to get the proposal approved by parliamentarians.
The government proposed the creation of military courts under Article 256, putting it in the first schedule.
Article 256: No private organisation capable of functioning as military organisation shall be formed and such organisation shall be illegal.
The legal experts suggested that the execution of Article 256 does not violate fundamental rights just like execution of Article 6, which covers high treason and Article 204, which covers contempt of court, Article 256 does not have the framework to prosecute or execute the accused.
It was suggested that military courts be established under the framework of Article 256 with protection in the first schedule of the Constitution.
There were some minor technicalities in the proposed bill.
The first schedule exempts certain types of laws from invoking fundamental rights under Article 8 (1) and (2) of the Constitution.
The civil and military leadership were trying to develop a political consensus on the establishment of courts through a constitutional amendment.
Some political parties asked the government not to amend the constitution for the special courts, and instead to try terrorists within existing laws.
The provision for Special Courts is already there in the constitution:
1[212B. Establishment of Special Courts for trial of heinous offences.-(1) In Order to ensure speedy trial of cases of persons accused of such of the heinous offences specified by law as are referred to them by the Federal Government, or an authority or person authorised by it, in view of their being gruesome, brutal and sensational in character or shocking to public morality, the Federal Government may by law constitute as many Special Courts as it may consider necessary.
The law and justice ministry suggested that the government could establish more special courts headed by High Court judges under Pakistan Protection Act (PPA), 2014 instead of amending the constitution for speedy courts manned by army officers.
The government had already formed five special courts under PPA 2014 which dont seem to make much difference in this prevailing situation.
Consensus is required at this crucial juncture when the whole nation is in shock after the massacre of schoolchildren.
Finally it was decided that amendments would be brought about in the Army Act to sanction military courts.This bill would be tabled in the next parliamentary session.
The Army Act of 1952 gives wide-ranging powers to the Army to court-martial civilians.
Under the amended act, the Army could try civilians on charges ranging from terrorism, treason, sedition and attack on army personnel to giving statements conducive to public mischief.
The Army Act, even unamended has a provision to hold the court martial of civilians but only when at least one of the accused belongs to the armed forces.
Amendment only to be made in Section 2 (1-d) of the Pakistan Army Act, 1952, by adding some more offences of the Pakistan Penal Code (PPC) and allowing the military courts to convict the civilians and award sentence.
The duration of such courts to be at least 2 years.
The judicial and legal system can run unhindered in parallel, dealing with civil and some criminal cases.
Another option can also be the proclamation of emergency to deal with the present circumstances.
232. Proclamation of emergency on account of war, internal disturbance, etc.—(1) If the President is satisfied that a grave emergency exists in which the security of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency 1[ : ]
The situation is not in the control of the provincial governments for sure.
Drastic measures are required to solve the present crisis, if military courts prove insufficient, an emergency would be the last course of action.
In any case,the parliament adopted the 21st Constitutional Amendment Bill and the The Pakistan Army (Amendment) Bill, 2015 unopposed after 247 Members of National Assembly along with the Senate voted it in to set up constitutionally protected military courts for a period of two years to try civilian terrorism suspects.
The Pakistan Army (Amendment) added two key new sub-clauses in the existing act describing people or groups that could be punished under the new law as under.
The sub-clauses (iii) and (iv), to be inserted in clause (d) of sub-section (1) of section 2, after sub-clause (ii) are:
(iii) Any person who is or claims or is known to belong to any terrorist group or organisation using the name of religion or a sect and raises arms or wage war against Pakistan or attacks the armed forces of Pakistan and law enforcement agencies, or attacks any civil or military installation in Pakistan or kidnaps any person for ransom or causes death of any person or injury, or is in possession, storage, fabrication or transport of explosives, firearms, instruments, articles, suicide jackets or vehicles designed to be used for terrorist acts, or receives or provides funding from any foreign or local sources for such illegal activities and acts or does any act to overawe the state or any section of the public or a sect or a religious minority or to create terror or insecurity in Pakistan or attempts to commit any of the said acts, within or outside Pakistan shall be punished under this act;
(iv): Any person who is or claims or is known to belong to any terrorist group or organisation using the name of religion or a sect, commits an offence mentioned at serial Nos. (i), (ii), (iii), (v), (vi), (vii), (viii)), (ix), (x), (xi) (xii), (xiii), (xv), (xvi), (xvii) and (xx) in the schedule to the Protection of Pakistan Act 2014 (X of 2014).
This bill is about military courts trying hardcore terrorists who kill innocent children and people praying in mosques, the judicial system has not been able to deal with them satisfactorily yet judges take umbrage to this bill.
The Supreme Court formed a full court, comprising of 17 judges, to hear petitions against the 21st Amendment, for the establishment of military courts, after also receiving statements on 18th Amendment case, as a question of basic structure was raised in them.
Apart from the petition, filed by the Lahore High Court Bar Association, identical petitions were filed against the 21st constitutional amendment in the constitution.
Barrister Zafrullah Khan, Chairman Watan Party Pakistan, Engineer Jamil Ahmed Khan of Communist Party Pakistan, Munsif Malik of Pakistan Justice Party, Supreme Court Bar Association, Pakistan Bar Council and Sindh High Court Bar Association also challenged the 21st Amendment.
So what solution do these individuals and associations have to the cruel reality of terrorism, time is being wasted in legalities while terrorists keep on murdering citizens of Pakistan without fear of consequences.
Military courts are not permanent, just a transitory measure to combat terrorists who are now orchestrating attacks on a war-scale.
This is urban proxy warfare and the solution given by the judicial system is cases lingering in courts for years and terrorists getting housing in jails for an interminable amount of years.
by webmaster@insaf.pk (tkiadmin)
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